Judicial Notice of Internet Evidence — 2014 Search of Whitepages.com ≠ Indisputable Evidence of What a 2008 Search Would’ve Shown

People v. McClellan, 2014 Ill. App. Unpub. LEXIS 2116 (Ill. Ct. App. Sept. 24, 2014):

On July 24, 2012, defendant, Eric McClellan, filed a pro se postconviction petition, alleging, in part, his trial counsel and appellate counsel provided him ineffective assistance. ***

On appeal, defendant argues the trial court erred in summarily dismissing his postconviction petition at the first stage of postconviction proceedings. He contends his petition presented an arguable claim of ineffective assistance because defense counsel [*11]  failed to locate and subpoena a witness [Morris] whose testimony arguably could have changed the outcome of his case. ***

According to defendant in the case sub judice, his trial counsel failed to make sufficient attempts to locate Morris, arguing she should have been able to find Morris since he was working for a law-enforcement agency in Arizona. Defendant points out counsel's only attempt to locate Morris was [*13]  to call a cellular-phone number she had been given by the Champaign police department.... Defendant also argues a simple Internet search would have revealed Morris's contact information in Arizona.

The State argues, among other things, a postconviction claim trial counsel failed to "call witnesses must be supported by an affidavit from the proposed witness," citing People v. Enis, 194 Ill. 2d 361, 380, 743 N.E.2d 1, 13 (2000). The state maintains defendant did not comply with the requirements of section 122-2 of the Act, which requires the petitioner to either provide "affidavits, records, or other evidence" to support the petition's allegations or explain the absence of such documentation (725 ILCS 5/122-2 (West 2012)), because he did not attach an affidavit from Morris to his postconviction petition or explain why he did not attach such an affidavit. The State argues such failure is fatal to defendant's claim Morris would [*14]  have provided testimony favorable to his defense. ***

Defendant further argues a "simple [I]nternet search" should have located Morris. Defendant attached to his brief the results of a "whitepages.com" Internet search reflecting an Arizona address and phone number for a Marshall Morris with a previous location of Champaign, Illinois. He explains the search, last visited on March 4, 2014, yielded seven results for Marshall Morris in Arizona, the fourth of which listed the person with a previous address in Champaign, Illinois. Defendant asks this court to take judicial notice of this Internet search pursuant to Illinois Rule of Evidence 201 (eff. Jan 1, 2011), arguing the search results "constitute [*18]  facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, i.e., an [I]nternet search and its result." Defendant cites People v. Crawford, 2013 IL App (1st) 100310, 118, n. 9, 2 N.E.3d 1143, stating the court may take judicial notice of information on a public website even though the information was not in the record on appeal. In Crawford, the court took judicial notice of the distance between two points as determined by the Google Maps website. Id. 39 "[A]n appellate court may take judicial notice of matters not previously presented to the trial court when the matters are capable of instant and unquestionable demonstration." Boston v. Rockford Memorial Hospital, 140 Ill. App. 3d 969, 972, 489 N.E.2d 429, 432 (1986) (citing May Department Stores Co. v. Teamsters Union Local No. 743, 64 Ill. 2d 153, 159, 355 N.E.2d 7, 9 (1976)). The standard legal meaning of "judicial notice" is a "court's acceptance, for  purposes of convenience and without requiring a party's proof, of a well-known and indisputable fact." Black's Law Dictionary 863-64 (8th ed. 2004). The fact a 2014 search of the Whitepages website resulted in a possible address for Morris is not an indisputable fact of what a similar search may have shown in 2008. The likelihood defense counsel could have found Morris's Arizona address on Whitepages in 2008 is subject to dispute, and this court will not take judicial notice of what [*19]  was discovered on Whitepages in 2014.

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