RENDERED: SEPTEMBER 28, 2017 TO BE PUBLISHED

# ~upmut**~fond.** 

# nf**~tnfudtJ.!** 2016-SC-000644:..DGE

. . STEPHEN MARCHESE



### v. ON REVIEW FROM COURT OF APPEALS CASE NO. 2016-CA-000262-MR

JEFFERSON CIRCUIT COURT NOS. 16-D-500129 AND 16:..D-500129-:001 ALLISON AEBERSOLD
OPINION OF THE COURT BY JUSTICE VENTERS .REVERSING APPELLANT

APPELLEE

Appellant, Stephen Marchese, app.eals from a**decisi~n** ofthe Court of

. -

- . . Appeals whfoh affirmed the Jefferson .Family Court's issuance ofa 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 ifproperly received;was inadmissible'hearsay; and ('3) the DVO was issued against.Marchese in vio18:tion ofhis due process rights. Upon discretionary review, we conclude that the trial court committed

. structural error and that its.use ofextra judicial.evidence from an undisclosed . source was improper. Accordingly, we reverse the Court ofAppeals' 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 of2016. 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 atnight ... ·:" The court entered an EPO and set a heaii.ng date for the statutorily-mandated DVO hearing. At the DVO hearing, both parties appearedpro

# 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 ofthe 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 ofAebersold 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 ofoccasions. 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

2alone. She also confirmed that Marchese threatened to post on the internet

. - . sexually expli,cit photographs ofhimselfand 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 contactAebersold. 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 contactAebersold. 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 whohad 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 stalkAebersold.

.After hearing the testimony, the trialjudge called for a briefrecess and

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

did so with some·hesitation. When the hearing reconvened, the trialjudge began with a review ofthe 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." Thejudge then said: "we have [Marchese's soqial security 3number}" and "we also have [Marchese'sJ record from other**states~"** Thejudge then announced: "You have**~n** assault and battery from Virginia Beach," to which Marchese responded, "It should have been dropped." The trialjudge replied: "Well, it wasn't... Your brother testified that you have never been violent." The trialjudge 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 ofthe evidence.' The trial court then announced from the·bench that the DVO would be granted. Thejudge next instructed Marchese towa.it·outside. the courtroom for his copy ofthe orde.r. At no·time did the trialjudge**di~close** the source ofher knowledge ofthe alleged Virginia Beach assault conviction or. describe the legal,grounds upon which that**inf~rmation** was**interje~ted** into the DVO hearing; nor did thejudge give Marchese .an opportunity to address

.the issue. Thejudge 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 ofher through 3rd parties after EPO was entered; 4) [Marchese J shoved Petitioner while drunkand threatened her; 5) [Marchese] has a history of.domestic violence; 6) [Domestic violence] could occur in the future. Marchese appealed. The Court ofAppeals concluded that the trial court's extrajudicial research concerning Appellant's criminal record was error,

4but it nevertheless affirmed the.entry ofthe DVO on the basis ofharmless error. We

### gr~ted discretionary review. ' I**II~** THE TRIAL JUDGE'.S RECEIPT OF.EXTRAJUDICIAL EVIDENCE WAS STRUCTURAL ERROR

· ·. Although not raised or addressed as an issue. by the Court ofAppeals, we would be remiss.ifwe chose to overlook the most fundamental flaw in the . issuance ofthe 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) (citingJudicial Canon 3E(l)(a) and KRS 26A.015).. KRS .26A.O 15(2) requires a judge to "dh;qualify himselfin.any proceeding:

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

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

### ~ny other circumstances in which his impartiality might reasonably be questioned." The trialjudge's extrajuciicial investigation, apparently undertaken during the· ·

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

personal knowledge ofa disputed .evidentiary fact-Marchese's hist_ory of violent behavior. Thejudge in

### Alredconducted 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
.5impropriety ofconsidering "potentially incriminating information about [a party.· in litigation],from extrajudicial sources." We said: "Recusal is appropriate only when the**~nformation.** is obtained [by thejudge] from an extrajudicial source.". Wf; further explained: 

### "BecauseJudgeAlredgathered information about the impending matters from extrajudicial sources, he was required to recuse when those cas?s came before himas 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 thejudge, but "[t]hey 

### may do so ifthey reveal an opinion that derives frorri an**e~trajudicial** source; and they 

### will do so ifthey reveal such a high degree offavoritism or'antagonism·as to make fairjudgment impossible." 

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

. After consulting some undisclosed source to obtain extrajudicial information aboutMarchese pertinent to a .contested issue pending before the court, the trialjudge was disqualified and 

### at that point was obligated to recuse

. . 

### sua sponte. Thejudge's bias and antagonism against Marchese was

. l . demonstrated by comments she made 

### afterreceiving 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, thejudge's failure to recuse was structural error which indelibly tainted the remainder ofthe hearing and the issuance ofthe 

### ·nvo. "Structural errors are defects affecting . 6 (.the

### en~re framework ofthe trial and

### ne~essarily render the trial funda:mentally unfair. Such errors preclude application ofthe 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 ofAppeals 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 ofthis opinion·resolves this appeal. _However, for.further guida._nce ofthe bench and bar we address the merits of /**~** . the evidentiary issue· presented. The trial court never explicitly stated a rationale tojustify the use ofthe extrajudidal information she received during

' • I • ·the recess. Marchese and the Court ofAppeals treated the matter as one that implicated the doctrine of judici8.l notice, and the Court ofAppeals·correctly analyzed the situation·as the: erroneous application ofthatdoctrine.I**K~E** 201 governs our application ofthe doctrine of judicial notice, and it ·.provides two "kinds offact" 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 ofthe action is fixed," _KRE 201(b)(l); a.rld facts thatare "[c]apable of accurate arid · ready determination by .resort to sources whose accuracy cannot**re~sonably** be

I Abersold did not file a .briefin the Court ofAppeals. 7questioned," KRE 20l(b)(2). The evidence ofMarchese'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 ofthe 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 LawHandbook§ 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 ofpublic 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 ofmatters reflected in them-the holding ofa hearing, say, or the filing ofa pleading-but

### it will generally not be appropriate to notice the'truth ofallegations 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. 201l)'(upholding trial court's decision to take notice that a criminal charge had been dismissed, but not to take notice ofthe purported reason for the. dismissal).

8

### Rogers v. Commonwealth, 366 S.W.3d**446~** 451-52 (Ky. 2012). 

### See also M.A.B. v. Cabinet/orHealth & 

### 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 ofits own records and rulin"gs, and ofall matters patent on the face of such records, including ·all prior proceedings in the same case."). Because thejudgefailed to disclose'the source ofthe 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 takingjudiciaI notice offue· alleged conviction would be under KRE 20l(b)(2), ifit 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 ofits information, so

the accuracy ofthe source cannot be established. Further, the verity of an ' undisclosed source reporting a criminal conviction iri a foreignjurisdiction is

not a matter that is "capable ofaccurate and ready determination."· The doctrine of judicial notice is a rule ofconvenience that allows a court to use co_mmonly-known assumptions offact as**evide~ce**..In·doing so, however, the rule bypasses some ofthe fundamental requirements for verification and authenticity that otherwise safeguard the integrity pfevidence. For that reason, we construe KRE. 201 as setting a'high standard for admitting

. '**~** . . evidence byjudicial notice and we are not inclined to lower the bar.

. So strong is 9urcommitment to the restrictive interpretation offacts

. . .**"~apable** ofaccurate and ready determination by resort to sources whose 9accuracy cannot reasonably be· questioned" that we have expressly rejected CourtNet, the Kentucky.-Court ofJustice's online database ofcriminal convictions from Kentucky courts, as a valid source for takingjudicial notice of a Kentucky**crimi~a~** conviction. Instead, a true copy ofthe 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 ofcases, 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 ofan out-of-state conviction

. . gleaned from an undisclosed source as 

## a proven fact under. the guise of

.·judicial notice ignores.the clear language ofKRE 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 ofviolent behavior.3 "It is well

.2 The·trial court's use ofthe Virginia:conviction fails to comply with the established procedures for properlyproving 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 notehere the Merriweatherreference on page 452 to "KRS 422.020" is inaccurate; the statute referred to is KRS 422.040.) "Evidence ofprior 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 ofa history ofviolence 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 ofAppeals held in Telek v. Daugherty, 376 S.W.3d 623, 628 (Ky. App. 2012), that evidence that the action of "pushing Kathryn out ofthe way to ep.ter the house was not enough to establish that an act ofdomestic violence had occurred." Marchese presented witnesses who testified that he had no history ofviolence. It follows that the trial court's reliance upon its extrajudicial research was central to its holding to issue the DVO: 10settled that extrajudicial evidence, not part ofthe record, canno_t form.the basis . ofa 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 ofthe rules for taking

.. judicia.J. 'notice, the use ofthe information acquired by thejudge from an unidentified source is simply 

### an inappropriate use ofextrajudicial evidence to guide a ruling in a matter.**~-** Due·Process

.**A~ide** from the use o(**inform~tion** that fails to qualify forjudicial 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 ofdue process into our evidentiary process for takingjudicial 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 oftaking**judi~ial**

.notice and the tenor ofthe matter noticed. In the absence ofprior· notification, t_he request may be made afterjudicial notice has been taken.

. . .

."The fundamental requirement_ofprocedural 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** 

### BasicResources, 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 11 .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 ofKRE 20I, following the lead ofmost commentators, encouraged courts to give advance notification when feasible: Ifa court acts on its own initiative, the parties should be informed ofthe facts noticed arid given an . opportunity to respond. 328 S.W..3d**191~** 194 (Ky. 2010) (citation and quotation marks omitted). After hearing the trialjudge 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 Thetrial court's use ofevidence derived fro:μi an unidentified source also violated the. traditional hearsay rules codified in KRE 80I, 

### et seq. "'Hearsay'is a statement, other than one made by the declarant while testifying at the trial



# . orhearing, offered in evidence to prove the truth ofthe matter asserted." KRE

. . . 

## soi. The information**imp~ted** to the'trialjudge about:Marchese's assault conviction, which was then accepted into evidence, apparently as .ajudicially noticed fact, was relevant to the l.ssue before the trial court 

### only ifit were 

### true. The**~rial**judge relied upon an out-of-court statement from some undisclosed source to establish the truth ofthe matter asserted therein; it is classic 12·. hearsay evidence. Without knowing ofthe source ofthejudge's information,

. we are unable to apply any ofthe exceptions to the hearsay rule. IV. CONCLUSION In summacy, we**conch~de** that the trialjudge'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 presidingjudge inrthis matter. Her failure to recuse·at that point was structural error undermining the integrity ofthe_resulting DVO. Because structural error

·.

### supers~des harmless.error review, we need notreview the finding 

## bfthe Court

of**Appe~.s** that the.error.was harrriless.

· · _For the foregoing reasons, the opinion ofthe Court ofAppeals is reversed, and the Domestic Violenc·e Orderissued 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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