FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 28, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 247
Jerome Wesseh Koon, Jr., Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20230139
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Reid A. Brady, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Kiara C. Kraus-Parr, Grand Forks, N.D., for petitioner and appellant.
Jason Van Horn, Assistant State’s Attorney, Fargo, N.D., for respondent and
appellee.
Koon v. State
No. 20230139
Tufte, Justice.
[¶1] Jerome Wesseh Koon, Jr., appeals from a district court judgment denying
his application for postconviction relief. He argues the district court erred in
denying his application and committed reversible error by considering
evidence outside the record. We affirm the judgment.
I
[¶2] Jerome Koon was convicted by a jury of reckless endangerment,
tampering with physical evidence, unlawful possession of a firearm, and
terrorizing as a result of a shooting in Fargo in January 2021. Koon appealed
the criminal judgment, challenging the sufficiency of evidence, and we
summarily affirmed. State v. Koon, 2022 ND 142,
977 N.W.2d 740.
[¶3] Koon filed an application for postconviction relief. An evidentiary
hearing was held on March 10, 2023. Trial counsel and Koon testified. After
the hearing, the district court issued a notice of intent to take judicial notice of
the clerk’s trial notes to determine whether Koon was present in the courtroom
when the parties discussed a jury question. Koon objected. The district court
did not take notice of the clerk’s notes. The court denied Koon’s application for
postconviction relief.
II
[¶4] Koon argues the district court committed reversible error by considering
evidence outside the record.
[¶5] Koon argues he was not present for a question from the jury on October
11. The October 11 transcript does not explicitly note Koon’s presence while
addressing the jury question. At the evidentiary hearing, Koon testified, “Yes,
I believe they called me into the courtroom when a question was presented.”
He later stated he could not remember. Finally, after refreshing his recollection
with the transcript, and in response to prompting from his counsel, Koon
stated, “No, I don’t think I was there.”
1
[¶6] After the hearing, the district court provided notice under N.D.R.Ev.
201(c)(1) of the court’s intent to take judicial notice of the clerk’s trial notes
recorded in the trial court case management system in the underlying criminal
case, stating, “On the record with counsel and Defendant present; Parties
discuss jury question” at 1:28 on October 11, 2021. The court cited N.D.R.Ev.
201(b)(2) as authority. The court sought any objection from the parties.
[¶7] Koon objected, arguing the “record is disputed by Mr. Koon and the
official transcript of the proceeding, it is hearsay without an exception, and
lacks both foundation and authentication.” The State responded, citing
Chandler v. United States, 378 F.2d 906, 909-10 (9th Cir. 1967), explaining “any
information which the court finds acceptable as establishing what the official
record is, may provide the basis for judicial notice of the court’s records.”
[¶8] The district court’s findings on the disputed fact of Koon’s presence or
absence explained that it had not relied on the clerk’s trial notes:
During deliberations on the fifth day of trial, Koon was held
in a holding cell at the courthouse. As Koon initially, and most
credibly, testified, Koon was brought into the courtroom when the
jury question was discussed at approximately 1:30 p.m. that day.
The Court thus does not deem it necessary to take judicial notice
of the clerk’s trial notes.
A
[¶9] Rule 201, N.D.R.Ev., governs judicial notice of adjudicative facts.
N.D.R.Ev. 201(a). “The court may judicially notice a fact that is not subject to
reasonable dispute because it: (1) is generally known within the trial court’s
territorial jurisdiction; or (2) can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” N.D.R.Ev. 201(b).
“The court may take judicial notice at any stage of the proceeding.” N.D.R.Ev.
201(d). “[A] party is entitled to be heard on the propriety of taking judicial
notice and the nature of the fact to be noticed. If the court takes judicial notice
before notifying a party, the party, on request, is still entitled to be heard.”
N.D.R.Ev. 201(e).
2
[¶10] We have explained the notice requirement is paramount. Atkins v. State,
2021 ND 83, ¶ 10,
959 N.W.2d 588 (explaining a court may take judicial notice
under Rule 201 of prior postconviction proceedings but must give the applicant
notice and an opportunity to respond before summarily dismissing the
application on the basis of matters outside the record); see also Chisholm v.
State,
2014 ND 125, ¶ 12,
848 N.W.2d 703 (explaining in a postconviction relief
proceeding a court may consider matters outside the pleadings but it was
reversible error to grant summary disposition when the applicant was not
provided with notice and an opportunity to present evidence supporting his
claims); Overlie v. State,
2011 ND 191, ¶ 12,
804 N.W.2d 50; Wong v. State,
2010 ND 219, ¶ 13,
790 N.W.2d 757.
[¶11] We review a district court’s decision to take judicial notice under an
abuse of discretion standard. Orwig v. Orwig,
2021 ND 33, ¶ 6,
955 N.W.2d 34.
“A court abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, it misinterprets or misapplies the law, or if its decision
is not the product of a rational mental process leading to a reasoned
determination.”
Id.
[¶12] The district court followed the procedure of Rule 201, N.D.R.Ev.,
providing notice to the parties of its intent to judicially notice the clerk’s trial
notes. Both parties briefed the issue. The court ultimately found it is not
“necessary to take judicial notice of the clerk’s trial notes.” The district court
explained it had not considered the clerk’s trial notes in making its findings.
Under these circumstances, the court’s examination of its own records,
including records not published in the public docket, was within the scope of
exercising its discretion to take judicial notice on its own motion. This situation
is analogous to any situation where the court is exposed to evidence it
concludes is inadmissible. The court’s mere exposure to inadmissible evidence
is not error, because we presume the court considers only admissible evidence.
See Senger v. Senger,
2022 ND 229, ¶ 16,
983 N.W.2d 160. The court did not
misinterpret or misapply the law. The district court did not abuse its discretion.
3
B
[¶13] Koon argues he was denied his due process right to a fair and impartial
factfinder because the district court conducted its own investigation. We
disagree.
[¶14] We have explained a fair trial in a fair tribunal is a basic requirement of
due process:
Concededly, a “fair trial in a fair tribunal is a basic requirement of
due process.” In re Murchison, 349 U.S. 133, 136 (1955). This
applies to administrative agencies which adjudicate as well as to
courts. Gibson v. Berryhill, 411 U.S. 564, 579 (1973). Not only is a
biased decisionmaker constitutionally unacceptable but “our
system of law has always endeavored to prevent even the
probability of unfairness.” In re Murchison, supra,
349 U.S., at 136;
cf. Tumey v. Ohio, 273 U.S. 510, 532 (1927). In pursuit of this end,
various situations have been identified in which experience
teaches that the probability of actual bias on the part of the judge
or decisionmaker is too high to be constitutionally tolerable.
Among these cases are those in which the adjudicator has a
pecuniary interest in the outcome and in which he has been the
target of personal abuse or criticism from the party before him.
Mun. Servs. Corp. v. State By & Through N. Dakota Dep’t of Health & Consol.
Lab’ys, 483 N.W.2d 560, 562 (N.D. 1992).
[¶15] “At a minimum, [due process] requires the proceedings be overseen by
an impartial fact-finder.” Dunn v. N. Dakota Dep’t of Transp.,
2010 ND 41,
¶ 12,
779 N.W.2d 628. “A fact-finder is not impartial if the fact-finder prejudges
the case, if the fact-finder harbors an actual bias towards a participant or if a
high probability exists the fact-finder harbors bias towards a participant.”
Id.
Koon does not argue the district court prejudged the case, the court harbors
actual bias towards Koon, or a high probability exists the court harbors actual
bias against Koon. Instead, Koon, relying on State v. Dorsey,
701 N.W.2d 238,
250 (Minn. 2005), argues reversible error results when a judge, sitting as the
factfinder, conducts his own investigation into the accuracy of a witness
statement. Koon’s reliance on Dorsey is misplaced.
4
[¶16] In Dorsey, the district court made findings of fact based on evidence it
investigated, and brought into the record by judicially noticing it without
objection. 701 N.W.2d at 243. Here, the court reviewed its own record and took
the proper steps to judicially notice the clerk’s notes to the parties. See Orwig,
2021 ND 33, ¶ 9 (“It was not error for the court to review the file in the current
case before trial.”). As discussed above, here the district court properly
provided notice and an opportunity to be heard under N.D.R.Ev. 201 before
declining to take judicial notice of the clerk’s notes.
[¶17] To the extent Koon argues the district court’s review of the clerk’s notes
automatically created a biased factfinder, we have consistently acknowledged
a judge is capable of distinguishing between admissible and inadmissible
evidence when deliberating the ultimate question. We have explained, in the
trial of a nonjury case, it is virtually impossible for a trial judge to commit
reversible error by receiving incompetent evidence, whether objected to or not.
Senger v. Senger,
2022 ND 229, ¶ 16. “In a bench trial, it is presumed the
district court only considered competent evidence because a judge, when
deliberating the ultimate decision, is capable of distinguishing between
admissible and inadmissible evidence.”
Id. The finding here turned on which
of Koon’s conflicting statements was more credible. See Miller v. Nodak Ins.
Co.,
2023 ND 37, ¶ 12,
987 N.W.2d 369 (citations omitted) (“In a bench trial,
the district court is the determiner of credibility issues and we will not secondguess the district court on its credibility determinations. Findings of the trial
court are presumptively correct.”). The court’s review of the clerk’s notes stored
in the court’s computer system prior to disregarding them and making a
finding in reliance on other evidence does not establish bias. Dittus v. N.
Dakota Dep’t of Transp.,
502 N.W.2d 100, 103-04 (N.D. 1993) (explaining
advance knowledge of adjudicative facts that are in issue is not alone a
disqualification for finding those facts, but a prior commitment may be).
[¶18] Koon received a fair proceeding overseen by an impartial factfinder.
III
[¶19] Koon argues that because he received ineffective assistance of counsel,
the district court erred by denying his application for postconviction relief.
5
[¶20] “Postconviction relief proceedings are civil in nature and governed by the
North Dakota Rules of Civil Procedure. The applicant bears the burden of
establishing grounds for postconviction relief.” Bridges v. State, 2022 ND 147,
¶ 5,
977 N.W.2d 718 (citations omitted). This Court reviews district court
orders on applications for postconviction relief as follows:
When we review a district court’s decision in a post-conviction
proceeding, questions of law are fully reviewable. The district
court’s findings of fact in a post-conviction proceeding will not be
disturbed on appeal unless they are clearly erroneous under
N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is
induced by an erroneous view of the law, if it is not supported by
any evidence, or if, although there is some evidence to support the
finding, a reviewing court is left with a definite and firm conviction
a mistake has been made.
Morris v. State, 2019 ND 166, ¶ 6,
930 N.W.2d 195 (citations omitted).
[¶21] Our review of a claim of ineffective assistance of counsel is well
established:
To prevail on a claim for ineffective assistance of counsel, the
applicant must show: (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. The question of
ineffective assistance of counsel is a mixed question of law and fact
and is fully reviewable on appeal.
Kratz v. State, 2022 ND 188, ¶ 12,
981 N.W.2d 891 (cleaned up) (explaining the
Strickland test).
[¶22] “If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course should be
followed.” Thomas v. State,
2021 ND 173, ¶ 17,
964 N.W.2d 739; Rourke v.
State,
2018 ND 137, ¶ 6,
912 N.W.2d 311 (citations omitted) (“Courts need not
address both prongs of the Strickland test, and if a court can resolve the case
by addressing only one prong it is encouraged to do so.”). “To establish the
second prong, the defendant must specify how and where trial counsel was
6
incompetent and the probable different result. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
[¶23] The district court found Koon failed to establish there was a reasonable
probability that the result of trial would have been different. The district
court’s findings are supported by the record. Koon has not shown prejudice.
Under our standard of review, the court did not clearly err in finding Koon
failed to show a reasonable probability of a different outcome.
IV
[¶24] We affirm the judgment.
[¶25] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
7
