Stephen Marchese v. Allison Aebersold

RENDERED: SEPTEMBER 28, 2017
TO BE PUBLISHED

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2016-SC-000644:..DGE

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STEPHEN MARCHESE APPELLANT

ON REVIEW FROM COURT OF APPEALS
v. CASE NO. 2016-CA-000262-MR
JEFFERSON CIRCUIT COURT
NOS. 16-D-500129 AND 16:..D-500129-:001

ALLISON AEBERSOLD APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS

.REVERSING

Appellant,
. Stephen Marchese, app.eals from a decisi~n of the -Court of
-. .
Appeals whfoh affirmed the Jefferson .Family Court's issuance of a bo:r:nestic

Violence Order (DVO) upon a petition filed by Appellee Allison Aebersold. As

grounds for relief, Marchese presents three arguments: (1) the trial court
improperly considered and relied upon extrajudicial evidence; (2) the .

extrajudicial evidence, even if properly received; was inadmissible'hearsay; and

('3) the DVO was issued against .Marchese in vio18:tion of his due process rights.

Upon discretionary review, we conclude that the trial court committed

. structural error and that its. use of extrajudicial. evidence from an undisclosed .

source was improper. Accordingly, we reverse the Court of Appeals' opinion,

)
vacate the· DVO, and remand for additional proceedings consistent with this

opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND
Marchese and Aebersold had a romantic relationship. The· couple broke

up in J(3.Iluary of 2016. A few days later Aebersold petitioned.the Jefferson

Family Court for an emergency protective order (EPO) and the corresponding

domestic violence order (DVO). Her petition alleged that she and Marchese

"have been apart for a few days now and [Marchese] will not leave me alone, he

is stalking me showing up in my driveway at night ... ·:" The court entered an

EPO and set a heaii.ng date for the statutorily-mandated DVO hearing.

At the DVO hearing, both parties appeared pro se. Aebersold testified

·that Marchese had never hit her, but that he had shoved her when he was

drunk. She also testified that after the issuance of the EPO, he parked in his

car in her driveway, he asked third parties to contact her on his behalf, he sent

text messages to her moth~r threatening to post sexually explicit photographs

of Aebersold on the internet, and he repeatedly contacted her through social

media. Aebersold testified that Marchese was very.controlling and

manipulative;
.
that he would not leave her alone; and that he .had shown up in
. . {

her driveway at night on an unspecified number of occasions.

Aebersold's mother, Whitney Aebersold, testified that while the couple

was together Marchese tried to prevent her from talking on the phone to her

daughter. Whitney said that she had urged Marchese to ieave her daughter

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 alone. .She also confirmed that
-
Marchese threatened to post
.
on the internet

sexually expli,cit photographs of himself and Aebersold.

Marchese ·admitted that he had threatened to post the embarrassing

photographs. He· admitted that he repeatedly tried to contact Aebersold
(

because they had ".made a pact to not give up on each other." He denied

obstructing Whitney's efforts to contact Aebersold. He also denied that he tried

·to contact her through a third party, stating that he had only asked friends

about her,
. but had never asked them to contact her.
.. Marchese also testified

that he would soon relocate in New Hampshire an.d no longer had any desire to

contact Aebersold.

Marchese's brother, Paul, testifi~d that Marchese did not have a violent

history. He said he had never seen any domestic violence occur between ·

Aebersold and Marchese. Paul also testified that Marchese's work schedule

would not have allowed him to stalk Aebersold. Amy Green, a woman who had

formerly lived with Marchese, testified that she had never seen him engaged in

domestic violence. She also said that his work schedule would not have

allowed him to stalk Aebersold .

. After hearing the testimony, the trial judge called for a brief recess and

. asked Marchese for his social security number. He complied, but apparently

did so with some ·hesitation. When the hearing reconvened, the trial judge

began with a review of the evidence that had been presented; she. described

. what she perceived as Ma,rchese's reluctance to give his social security number

as a "red flag." The judge then said: "we have [Marchese's soqial security

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 number}" and "we also have [Marchese'sJ record from other states~" The judge

then announced: "You have ~n assault and battery from Virginia Beach," to

which Marchese responded, "It should have been dropped." The trial judge

replied: "Well, it wasn't ... Your brother testified that you have never been

violent." The trial judge then stated to Marchese that he had "engaged in every

manipulative behavior that she had ever seen." Marchese attempted to

respond but the trial .court commanded him to stop, and then finis.bed her

recitation of the evidence.' The trial court then announced from the ·bench that

the DVO would be granted. The judge next instructed Marchese to wa.it ·outside.

the courtroom for his copy of the orde.r. At no·time did the trial judge di~close

the source of her knowledge of the alleged Virginia Beach assault conviction or.

describe the legal, grounds upon which that inf~rmation was interje~ted into

the DVO hearing; nor did the judge give Marchese .an opportunity to address

. the issue.

The judge wrote the following findings on the docket sheet:

. 1) [Marchese] has exerted controlling behavior over Petitioner, limiting
her contact w / family and friends;
2) [Marc.hese] uses humiliation tactics to control Petitioner;_
3) [Marchese] stalked Petitioner, parking in her driveway at night &
inquiring of her through 3rd parties after EPO was entered;
4) [Marchese J shoved Petitioner while drunk and threatened her;
5) [Marchese] has a history of.domestic violence;
6) [Domestic violence] could occur in the future.

Marchese appealed. The Court of Appeals concluded that the trial

court's extrajudicial research concerning Appellant's criminal record was error,

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 but it nevertheless affirmed the .entry of the DVO on the basis of harmless

error. We gr~ted discretionary review.

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II~ THE TRIAL JUDGE'.S RECEIPT OF.EXTRAJUDICIAL EVIDENCE WAS
STRUCTURAL ERROR

· ·. Although not raised or addressed as an issue. by the Court of Appeals, we

would be remiss .if we chose to overlook the most fundamental flaw in the .

issuance of the DVO against Marche~e. Even when a litigant fails to assert in a

timely manner the grounds upon which G,t.J1,1dge.should recuse, "a trialjudge is

obligated to di~qualify himself 'when presiding over a matter that would violate

statutory mandates for impartiality."' Alred v. Commonwealth, Judicial Cond"'!-ct

Commission, 395· S.W.3d 417, 443-44 (Ky. 2012) (citing Judicial Canon 3E(l)(a)

and KRS 26A.015) ..

KRS .26A.O 15(2) requires a judge to "dh;qualify himself in. any proceeding:

· (a) Where he has· ... personal knowledge of disputed evidentiary facts

concerning the proceedings .. / [and] (e) Where he. has knowledge of ~ny other

circumstances in which his impartiality might reasonably be questioned." The

trial judge's extrajuciicial investigation, apparently undertaken during the· ·

. recess after she acquire:d Marchese's social security number, gave the judge

personal knowledge of a disputed .evidentiary fact-Marchese's hist_ory of

violent behavior.

Thejudge in Alred conducted art extrajudicial investigation to discover

incriminating information about a party in litigation before ·him. Citing Bussell .

v. Commonwealth, 882 S,W.2d 111, 112(Ky.·1994), we commented upon the

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 impropriety of considering "potentially incriminating information about [a party.·

in litigation],from extrajudicial sources." We said: "Recusal is appropriate only

when the ~nformation. is obtained [by the judge] from an extrajudicial source.".

Wf; further explained: "Because Judge Alred gathered information about the

impending matters from extrajudicial sources, he was required to recuse when

those cas?s came before him as judge.". 395 S.W.3d at 443 .n. 92. (Emphasis

added.)

Upon the same subject, the United States Supreme Court stated that a

judge's critical, disapproving, or even hostile comme.nts directed to a litigant

during a trial "ordinarily do not support a bias or partiality challenge" to

disqualify the judge, but "[t]hey may do so if they reveal an opinion that derives

frorri an e~trajudicial source; and they will do so if they reveal such a high

degree of favoritism or 'antagonism·as to make fair judgment impossible."

Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis in original) .

. After consulting some undisclosed source to obtain extrajudicial

information about Marchese pertinent to a .contested issue pending before the

court, the trial judge was disqualified and at that point was obligated to recuse
. .

sua sponte. The judge's bias and antagonism against Marchese was
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demonstrated by comments she made after receiving the extrajudicial evidence.
(.

As further indicated by her refusal to allow Marchese to respond to the newly-

. disclosed evidence and ordering him to leave the courtroom, the judge's failure

to recuse was structural error which indelibly tainted the remainder of the

hearing and the issuance of the ·nvo. "Structural errors are defects affecting .

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 the en~re framework of the trial and ne~essarily render the trial funda:mentally

unfair. Such errors preclude application of the harmless error rule and

. warrant automatic reversal under that standard." ·McCleery v. Commonwealth,

410 S.W.3d 597, 604 (Ky. 2013) (citing Neder v. United States, 527 U.S. 1, 8:--9

·(1999)). For that reason, we.reverse the Court of Appeals and vacate the

domestic violence .order issued in this matter ..

III. THE TRIAL COURT ERRONEOUSLY ACCEPTED AND USED
EXTRAJUDICIAL INFORMATION
Our holding i!l the previous section of this opinion· resolves this appeal.

_However, for.further guida._nce of the bench and bar we address the merits of
/ ~ .
the evidentiary issue· presented. The trial court never explicitly stated a

rationale to justify the use of the extrajudidal information she received during
' • I •

· the recess. Marchese and the Court of Appeals treated the matter as one that

implicated the doctrine of judici8.l notice, and the Court of Appeals ·correctly

analyzed the situation· as the: erroneous application of that doctrine.I

K~E 201 governs our application of the doctrine of judicial notice, and it

·.provides two "kinds of fact" that can be admittec;l into evidence under that

theory: facts that are "[g]enerally known. within the county from which the

jurors are drawn, or, _in a nohjury matter, the county in which the venue of the

action is fixed," _KRE 201(b)(l); a.rld facts that are "[c]apable of accurate arid ·

ready determination by .resort to sources whose accuracy cannot re~sonably be

I Abersold did not file a .brief in the Court of Appeals.

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 questioned," KRE 20l(b)(2). The evidence of Marchese's alleged Virginia Beach

conviction fits neither category.

· First, Marchese's alleged Vir~ilia Beach conviction is not a fact

"[g]enerally known within the county ... in which the venue of the action is

fixed," which is Jefferson County, Kentucky. Therefore, qualification for

judicial notice under KRS 20l(b)(l) fails.

In clarification of KRE 201 (b)(2), we have explained that "sources whose

accuracy cannot reasonabiy be questioned" means "unimpeachable sources,"

which, depending on the specific circumstance, may include general

. authprities like "encyclopedias, calendars, maps, medical and historical

treatises, almanacs, and public records." Stokes v. Commonwealth, 275

S.W.3d 185, 188 (Ky. 2008) (quoting Roberto~ Lawson, The Kentucky Evidence

Law Handbook§ L00[3][c] at 10 (4th ed. 2003)).

Ordinarily, a criminal conviction is a matter of.public.record, but we have.

been careful to distinguish the types of public records which may be subject to
'
judicial notice under KRE 201(b)(2):

Under KRE 201 .... it may be appropriate to notice court records
for the occurrence and timing of matters reflected in them-the
holding of a hearing, say, or the filing of a pleading-but it will
generally not be appropriate to notice the' truth of allegations or
findings made in another matter, since such allegations or findings,
generally will not pass the "indisputability" test. See Meece v.
Commonwealth, 348 S.W.3d 627, 692-93 (Ky. 201 l)'(upholding
trial court's decision to take notice that a criminal charge had been
dismissed, but not to take notice of the purported reason for the.
dismissal).

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 Rogers v. Commonwealth, 366 S.W.3d 446~ 451-52 (Ky. 2012). See also M.A.B.

v. Cabinet/or Health & Family Services, 456 S.W.3d 407, 412 (Ky.

App. 2015) ("[I]t is a well-established principle that a trial court may take

judicial no.tice of its own records and rulin"gs, and of all matters patent on the

face of such records, including ·all prior proceedings in the same case.").

Because the judge failed to disclose' the source of the information upon which.

she relied, the record fails to ·support that the information was obtained from a

properly-authenticated pq.blic record~

The ~rily other basis for taking judiciaI notice of fue· alleged conviction

would be under KRE 20l(b)(2), if it is a fact "[c]apable of accurate and ready

determination by reso~t to sources whose accuracy cannot reasonably be ·

. questioned." The trial court did not disclose the source of its information, so

the accuracy of the source cannot be established. Further, the verity of an

' undisclosed source reporting a criminal conviction iri a foreign jurisdiction is

not a matter that is "capable of accurate and ready determination."·

The doctrine of judicial notice is a rule of convenience that allows a court

to use co_mmonly-known assumptions of fact as evide~ce .. In· doing so,

however, the rule bypasses some of the fundamental requirements for

verification and authenticity that otherwise safeguard the integrity pf evidence.

For that. reason, we construe KRE. 201 as setting a' high standard
' ~ .
for admitting
.

evidence by judicial notice and we are not inclined to lower the bar.

. So strong is 9ur
.
commitment to. the
.
restrictive interpretation of facts

"~apable of accurate and ready determination by resort to sources whose

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 accuracy cannot reasonably be· questioned" that we have expressly rejected

CourtNet, the Kentucky .-Court of Justice's online database of criminal

convictions from Kentucky courts, as a valid source for taking judicial notice of

a Kentucky crimi~a~ conviction. Instead, a true copy of the authenticated

. official court record is required. Finnell v. Commonwealth, 295" S.W.3d 82_9, .

835 (Ky. 2009) ("[E]vidence based on a document such as CourtNet, which

proclaims that it is not official, may_notreflect the true status of cases, and·

whose accuracy cannot be guaranteed, is not competent to be weighed in fixing

a penalty.").2 It follows that tret::t.ting the existence of an out-of-state conviction
. .
gleaned from an undisclosed source as a proven fact under. the guise of
. ·judicial notice ignores.the clear language of KRE 201, and is an abuse of

discretion.

It is significant that nothing else in the evidentiary record supports the

critical finding that Marchese had a history of violent behavior.3 "It is well

.2 The· trial court's use of the Virginia: conviction fails to comply with the
established procedures for properly proving an out-of-state conviction as set forth
.under KRS 422.040, KRE 901(b)(7), KRE 902, KRE 1005, and Merriweather v.
Commonwealth, 99 S.W.3d 448 (~y. 2003). (We note here the Merriweatherreference
on page 452 to "KRS 422.020" is inaccurate; the statute referred to is KRS 422.040.)
"Evidence of prior convictions must come from the official court record, or certified
copies thereof." Finnell, ~95 S.W.3d at 835 (citing Gamer v. Commonwealth, 645
S.W.2d 705, 707 (Ky. 1983)).
a The only other evidence that everi hlnts of a history of violence is the
testimony that Marchese "shoved" Abersold. However, we note that on remand from
~is Court in Daugherty_v. Telek, 366 S.W.3d 463 (Ky. 2012), the Court of Appeals held
in Telek v. Daugherty, 376 S.W.3d 623, 628 (Ky. App. 2012), that evidence that the
action of "pushing Kathryn out of the way to ep.ter the house was not enough to
establish that an act of domestic violence had occurred." Marchese presented
witnesses who testified that he had no history of violence. It follows that the trial
court's reliance upon its extrajudicial research was central to its holding to issue the
DVO:

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 settled that extrajudicial evidence, not part of the record, canno_t form.the basis .

of a decision:" Carpenter v. Schlomann, 336 S.W-.3d _129, 132 (Ky~ App. 2oi 1)

(quoting Lynch v~ Lynch, 737 ·s.W.2d 184, 186.(Ky. App.' 1987)). lJ!e are

satisfied that the trial GOUtt was improperly influenced by the use. of

extrajudicial evidence. Absent avalid application of the rules for taking
..
judicia.J. 'notice, the use of the information acquired by the judge from an

unidentified source is simply an inappropriate use of extrajudicial evidence to

guide a ruling in a matter.

~- Due· Process
. A~ide from the use o( inform~tion that fails to qualify for judicial notice

under KRE 201 (b); more .significant "is the trial court's failure to honor the

procedural requirements_of KRE 20l(e) that transfuse the constitutional

lifeblood of due process into our evidentiary process for taking judicial notice of

generally obvious and-indisputable facts. KRE 201(e) pr~vides:

-Opportunity to be heard. A party is entitled upon timely request to
an opportunity to be heard as to the propriety of taking judi~ial
. notice and the tenor of the matter noticed. In the absence of prior·
notification, t_he request may be made after judicial notice has been
taken.
. . .
. "The fundamental requirement _of procedural due process is· simply that
. .
all affected par~es be given 'the opportunity to be heard at a meaningf~l time

and ~n a meaningful manner.;,, H~lltop Basic Resources, Inc. v.. County of Boone,

180 S.W.3d 464, 469 (Ky'. 2005) (quoting Matheius v. Eldridge; 424 U._S.-319,

··333 (1976) (internal citation and quotation marks omitted)).

We said in Commonwealth v. Howlett that whenever

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 judicial notice '[is to] be taken of a fact, the other party is afforded
the opportunity to respond . . . . Here, there was no opportunity to
reasonably question the source. The drafters of KRE 20 I, following
the lead of most commentators, encouraged courts to give advance
notification when feasible: If a court acts on its own initiative, the
parties should be informed of the facts noticed arid given an .
opportunity to respond.

328 S.W ..3d 191~ 194 (Ky. 2010) (citation and quotation marks omitted).

After hearing the trial judge announce that she would accept .as a fact

that he had a prior assault conviction, Marchese attempted to exercise his right

to be. heard· on the issue by challenging the information. The trial court
.
injudiciously cut him off, issued the ruling, and directed Marchese to leave the

courtroom without further discussion. This refusal to permit Marchese to

challen~e or explain the evidence accepted into the record as a fact admitted

under the doctrine of judicial notice violated both KRE 201(e) and Marchese's

constitutional due process rights.

B. Hearsay
The trial court's use of evidence derived fro:µi an unidentified source also

violated the. traditional hearsay rules codified in KRE 80 I, et seq. "'Hearsay' is

a statement, other than one made by the declarant while testifying at the trial

.or hearing, offered in evidence to prove the truth of the. matter asserted.".
.
KRE

soi. The information imp~ted to the' trial judge about:Marchese's assault

conviction, which was then accepted into evidence, apparently as .a judicially

noticed fact, was relevant to the l.ssue before the trial court only if it were true.

The ~rial judge relied upon an out-of-court statement from some undisclosed

source to establish the truth of the matter asserted therein; it is classic

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·. hearsay evidence. Without knowing of the source of the judge's information,

. we are unable to apply any of the exceptions to the hearsay rule.

IV. CONCLUSION

In summacy, we conch~de that the trial judge's undertaking_ to obtain

and use as evidence extrajudicial informat~on relating to a party in the case

caµsed her disqualification from proceeding further as the presiding judge in
r-
this matter. Her failure to recuse· at that point was structural error

undermining the integrity of the _resulting DVO. Because structural error

·. supers~des harmless. error review, we need not review the finding bf the Court
of Appe~.s that the. error. was harrriless.

· · _For the foregoing reasons, the opinion of the Court of Appeals is

reversed, and the Domestic Violenc·e Order issued i;n this matter by the

Jefferson Family ·Court is vacated, and the matter is remanded for additional·

proceedings consistent with this opinion ..

All sitting. All concur.

COUNSEL FOR APPELLANT:

Ryan C. Van~ease.
600 West Main Street,. Suite. 500
Louisville, KY 40202

COUNSEL FOR APPELLEE:

Courtney Kellner
600 West Main Street, Ste. 100·
·Louisville, KY 40202

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