State v. Morozko

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48710
STATE OF IDAHO, )
) Filed: June 16, 2022
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
KURT ALLEN MOROZKO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Shoshone County. Hon. Scott L. Wayman, District Judge.
Order denying motions to take judicial notice and for new trial, affirmed.
Kurt Allen Morozko, Eloy, Arizona, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LORELLO, Chief Judge
Kurt Allen Morozko appeals from the district court’s order denying his motions to take
judicial notice and for a new trial. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A jury found Morozko guilty of three counts of unlawful discharge of a firearm at an
occupied building, I.C. § 18-3317, and two counts of possession of a controlled substance,
I.C. § 37-2732. This Court affirmed Morozko’s judgment of conviction in an unpublished opinion.
State v. Morozko, Docket No. 46689 (Ct. App. Sept. 28, 2020).
1
Morozko subsequently filed a motion requesting judicial notice of “records, exhibits and
transcripts from the case file” and a motion for new trial,1 arguing that materials “located on
[evidence discs] after trial” or allegedly “not disclosed until after trial” constituted newly
discovered evidence that entitled him to a new trial. The district court denied Morozko’s motions
without a hearing, concluding (among other things) that Morozko had not identified any “specific
items” or “adjudicative facts” for judicial notice and failed to satisfy any of the elements necessary
to obtain a new trial. Morozko appeals.
II.
STANDARD OF REVIEW
A decision on a motion for new trial is reviewed under an abuse of discretion standard.
State v. Egersdorf, 126 Idaho 684, 687, 889 P.2d 118, 121 (Ct. App. 1995). The decision to take
judicial notice of an adjudicative fact is also reviewed for an abuse of discretion. Newman v. State,
149 Idaho 225, 226, 233 P.3d 156, 157 (Ct. App. 2010). When a trial court’s discretionary decision
is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the
trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries
of such discretion; (3) acted consistently with any legal standards applicable to the specific choices
before it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261,
270, 429 P.3d 149, 158 (2018). This Court exercises free review over the application and
construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003).
III.
ANALYSIS
Morozko argues that the district court erred by denying his motions for judicial notice and
for a new trial without holding a hearing before denying the motions. The State responds that
Morozko has failed to provide a sufficient record to substantiate his claims on appeal and has
otherwise failed to show error in the denial of either motion. We hold: (1) Morozko has failed to
show error in the district court’s order denying his motion for judicial notice because he failed to
provide the necessary information to support a request for judicial notice or timely request to be
1
This was Morozko’s second motion for new trial. The district court denied Morozko’s first
motion for new trial prior to his initial appeal.
2
heard on that motion; and (2) Morozko has also failed to show error in the district court’s
determination that his motion for new trial did not disclose newly discovered evidence unknown
to him at the time of trial. The district court’s orders are, therefore, affirmed.
A. Record on Appeal
Initially, we address the State’s argument that Morozko has failed to provide a sufficient
record to support appellate review of his claims. It is the responsibility of the appellant to provide
a sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872,
873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on appeal to support
the appellant’s claims, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d
1009, 1011 (Ct. App. 1991).
The State asserts that it is “impossible for . . . this Court to analyze, the merits of Morozko’s
appellate challenges” due to the condition of the record on appeal. In support of this assertion, the
State describes the documents Morozko submitted with his motions for judicial notice and for a
new trial--noting that the documents consist of “dozens of indecipherable photographs, lists of
computer files contained on a USB media drive, exhibits that were admitted at the trial . . ., other
state firearm analysis documents, jail inmate request forms, academic reference materials, and
witness statements.” Some of the documents allegedly contained on the USB media drive were
not submitted to the district court with Morozko’s motions but, rather, were identified as being
“available upon request.” Other than the conclusory assertion that this record is insufficient “to
fully review Morozko’s claims raised on appeal,” the State does not elaborate specifically what
aspects of the district court’s decisions denying Morozko’s motions are unreviewable due to the
condition of the record. Ultimately, we need not resolve the State’s challenge to the sufficiency
of the record because, as set forth below, the record is sufficient to affirm the denial of both
Morozko’s motion for judicial notice and motion for new trial.
B. Judicial Notice
Idaho Rule of Evidence 201(b) authorizes a court to take judicial notice of an adjudicative
fact when the fact is capable of accurate determination by resort to sources whose accuracy cannot
reasonably be questioned. Under I.R.E. 201(c), a court must take judicial notice of records,
exhibits, or transcripts from the court file in the same or a separate case if a party so requests and
supplies the court with “the necessary information.” To provide the necessary information, the
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party requesting judicial notice must “identify the specific items for which judicial notice is
requested or offer to the court and serve on all parties copies of those items.” I.R.E. 201(c). A
court may, without a request, take judicial notice of its own record in the case before it. Larson v.
State, 91 Idaho 908, 909, 435 P.2d 248, 249 (1967). If a party makes a timely request, that party
is entitled to be heard “on the propriety of taking judicial notice and the nature of the fact to be
noticed.” I.R.E. 201(e).
Idaho Rule of Evidence 201(c), by its terms, requires specificity in the identification of
what documents or items the district court is to notice. See, e.g., Taylor v. McNichols, 149 Idaho
826, 835, 243 P.3d 642, 651 (2010). The Idaho Supreme Court has held that, where a party is
requesting judicial notice of a document or items, the party must state with particularity what he
or she is asking the court to notice. Id. at 835, 243 P.3d at 652. Where a party does not meet this
requirement, it is improper for a court to take judicial notice under I.R.E. 201(c). Taylor, 149
Idaho at 835, 243 P.3d at 652. If a party fails to specify which material from the underlying case
he or she is seeking to have noticed, judicial notice is not mandatory. See id. (holding that, where
it was erroneous for the district court to take judicial notice, such notice was not mandatory).
Morozko’s motion for judicial notice sought an order taking “judicial notice of records,
exhibits and transcript from the case file.”2 The district court denied Morozko’s motion for judicial
notice without a hearing, expressly noting that the motion was “appropriate to be decided without”
one. In denying Morozko’s motion for judicial notice, the district recognized that I.R.E. 201 is
limited to judicial notice of adjudicative facts and that judicial notice is appropriate only if the
requesting party has supplied the necessary information to support its request for judicial notice.
The district court determined that Morozko’s motion for judicial notice “failed to comply with
[I.R.E.] 201” because, among other things, the motion failed “to identify any adjudicative facts”
or “the location of the listed items in the record” by, for example, “setting out their respective
2
Morozko’s motion did not expressly identify specific items to be judicially noticed. Rather,
the motion referenced an “attached list of items from the case file . . . included with this request.”
The list indicated that some of the items enumerated therein were included with Morozko’s motion
for new trial and others were exhibits from the case file that were “available on request.” None
of the items listed, however, were attached to the motion for judicial notice.
4
filing dates where applicable.” Consequently, the district court denied Morozko’s motion for
judicial notice.
Morozko first faults the district court for denying his motion for judicial notice without
holding a hearing. According to the plain language of I.R.E. 201(e), a party must make a timely
request to be heard in relation to a motion for judicial notice to be entitled to a hearing. Morozko
asserts he made the necessary request to be heard. The record belies this assertion. The notice of
hearing contained in the appellate record indicates that Morozko sought a hearing only in relation
to his motion for new trial, not his motion for judicial notice. Because the record does not indicate
that Morozko timely requested a hearing on his motion for judicial notice, he has failed to show
the district court erred by denying his motion without a hearing.
Morozko further argues that the district court erred by denying his motion because the
items he sought to have judicially noticed were “true and correct copies from the State’s case file.”
As previously stated, a party must provide the trial court with “the necessary information” to
support a request for judicial notice. I.R.E. 201; see also Rome v. State, 164 Idaho 407, 414, 431
P.3d 242, 249 (2018) (interpreting what is now designated as I.R.E. 201(c)(2)). To satisfy this
requirement, the party seeking judicial notice of a record, exhibit, or transcript must identify the
adjudicative fact or facts contained in the items to be judicially noticed that are relevant to the
issues before the court. See Rome, 164 Idaho at 414, 431 P.3d at 249. Even if I.R.E. 201 authorized
trial courts to take judicial notice of materials from “the State’s case file,”3 Morozko did not
identify a relevant adjudicative fact that the district court was to judicially notice. Consequently,
Morozko has failed to show error in the denial of his motion for judicial notice.
C. New Trial
Morozko also contends that the district court erred by denying his motion for new trial
based upon newly discovered evidence without holding a hearing.4 A motion for new trial based
3
Notably, I.R.E. 201 applies to judicial notice of adjudicative facts and records, exhibits, or
transcripts from the court file, not files created or maintained by the State or prosecutor.
4
The State notes in its appellate brief that Morozko “appeared to assert” various claims in
support of granting a new trial in his motion filed with the trial court, in addition to newly
discovered evidence. However, the district court interpreted Morozko’s motion as seeking a new
trial solely due to newly discovered evidence, analyzing and denying it as such. Moreover,
5
on newly discovered evidence is disfavored and should be granted with caution, reflecting the
importance accorded to considerations of repose, regularity of decision-making, and conservation
of scarce judicial resources. State v. Jimenez, 159 Idaho 466, 473, 362 P.3d 541, 548 (Ct. App.
2015). A motion for new trial based on newly discovered evidence must disclose that: (1) the
evidence is newly discovered and was unknown to the defendant at the time of trial; (2) the failure
to learn of the evidence was due to no lack of diligence on the part of the defendant; (3) the
evidence is material, not merely cumulative or impeaching; and (4) it will probably produce an
acquittal. State v. Drapeau, 97 Idaho 685, 691, 551 P.2d 972, 978 (1976).
We begin with Morozko’s argument that the district court abused its discretion and violated
his due process rights by denying his motion for new trial without first holding a hearing.5
Although Morozko filed a written notice of hearing seeking to be heard on his motion for new
trial, the district court denied the motion without a hearing after concluding it was “appropriate to
be decided without further hearings.” According to Morozko, this constituted an abuse of
discretion and violated his right to due process. We disagree.
Neither I.C.R. 34 nor I.C. § 19-2406, both of which apply to a motion for new trial,
expressly require a hearing on such a motion. Morozko has neither cited relevant authority
supporting his assertion that due process mandated a hearing on his motion for new trial, nor has
he presented more than a conclusory assertion that denying him a hearing on his motion for new
trial constituted an abuse of discretion. A party forfeits an issue on appeal if either authority or
argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). Consequently,
Morozko does not argue that the district court erred in denying his motion for new trial because of
any error related to the other claims the State recognized. Consequently, we will not address these
other ostensible claims.
5
Morozko also argues that the State’s failure to file a memorandum supporting its objection
to his motion for new trial precludes consideration of “the State’s objection” and, consequently,
“should not be considered on appeal.” As the appellant, Morozko bears the burden of
demonstrating error on appeal. See State v. Wallace, 98 Idaho 318, 320, 563 P.2d 42, 44 (1977).
The State need not cite legal authority or provide cogent argument for this Court to affirm the
denial of Morozko’s motion for new trial. See Allen v. Campbell, 169 Idaho 125, 129, 492 P.3d
1084, 1089 (2021).
6
Morozko has forfeited consideration of whether the denial of his motion for new trial without a
hearing was error.
We next address Morozko’s argument that the district court erred in denying his motion
for new trial. Morozko’s brief in support of his motion for new trial exceeds forty handwritten
pages in length and was accompanied by more than one hundred pages of supporting
documentation, including dozens of obscured copies of photographs, trial exhibits, state firearm
analysis documents, jail inmate request forms, academic reference materials, witness statements,
and a list of computer files contained on a USB media drive. The district court determined that
these voluminous filings failed to satisfy any of the four prongs of the Drapeau test, observing
that:
Morozko has not alleged, much less shown, a viable basis for a motion for
a new trial based upon newly discovered evidence. He has not explained how any
evidence was newly discovered. He has not claimed that at the time of trial, he was
unaware of the existence of such evidence. He does not state how or when he
became aware of [the evidence] or how or when it came into his possession. He
has not indicated why he could not have learned about it with reasonable diligence
at the time of trial.
The district court further observed that:
Morozko claims that certain evidence was not discovered by him until after trial.
Such a statement could mean that he neglected to review evidence in his possession
at trial until after the trial’s conclusion, and that his post-trial review of that
evidence resulted in a greater understanding of that evidence--that greater
understanding being expressed by him as “newly discovered evidence.”
The district court noted that this would not constitute newly discovered evidence under Drapeau
and that Morozko’s failure to make “the showing mandated by Drapeau” prevented determination
of the precise meaning of his assertion that he possessed “newly discovered evidence.”
Additionally, the district court determined that Morozko failed to disclose “any newly discovered
evidence that was material, not merely cumulative or impeaching,” or that would probably result
in his acquittal if retried. Accordingly, the district court denied Morozko’s motion for new trial.
Morozko challenges the district court’s application of each prong of the Drapeau test.
Because we affirm the district court’s determination that Morozko failed to disclose any newly
discovered evidence that was unknown to him at the time of trial, it is unnecessary to address his
other arguments. See State v. Pugsley, 119 Idaho 62, 63, 803 P.2d 563, 564 (Ct. App. 1991)
7
(observing that a motion for new trial based upon newly discovered evidence fails if a single
element of the Drapeau test is not satisfied).
In Morozko’s brief supporting his motion for new trial, he claimed that “multiple pieces of
evidence were not disclosed” to him prior to trial. Morozko’s appellate brief focuses on a portion
of the materials he submitted with his motion for new trial to support his argument that his motion
disclosed newly discovered evidence, including part of the list of computer files allegedly
contained on a USB drive that were “available upon request” and “photographs of ballistics
evidence” purportedly showing that “these bullets do not match.” Other than vague, conclusory
assertions that these materials were “located” after trial or were “not disclosed” prior to trial,
Morozko does not affirmatively claim he was unaware of these materials prior to trial6 or, even if
he was unaware of the materials, does not describe how he became aware of them after trial.
Moreover, not only are the copies of these photos in the appellate record so obscured as to be
indecipherable, Morozko has neither identified the source of the supposed bullets depicted therein
(other than making the vague assertion that some are “‘test fires’ from evidence”) nor explained
the significance of the purported mismatch between the bullets to the crimes of which he was
convicted. To the contrary, Morozko failed to even authenticate the photos or other materials as
evidence relevant to this case. Thus, Morozko’s photos and other materials submitted with his
motion for new trial do not constitute admissible evidence that the district court could rely upon
to grant a motion for new trial. See I.R.E. 901 (requiring “evidence sufficient to support a finding
that the item is what the proponent says it is”). For all the above reasons, Morozko has failed to
show error in the district court’s determination that his submissions accompanying his motion for
new trial did not constitute newly discovered evidence.
6
Notably, the list of materials allegedly contained on the USB drive that Morozko submitted
with his motion for new trial indicates that the materials were found on “evidence disks” bearing
the same identification numbers as disks the prosecution disclosed to Morozko’s then counsel
months in advance of trial. Additionally, Morozko acknowledges in his appellate brief that he
received the photos of ballistics evidence on November 30, 2018. This is eleven days prior to the
first day of his trial, which began on December 11, 2018. Furthermore, the date Morozko alleges
that he received the ballistics evidence is only two days after the district court granted his
court-appointed attorney leave to withdraw as counsel. Thus, it appears that most, if not all, of the
allegedly newly discovered evidence Morozko cites on appeal was in his possession prior to trial.
8
IV.
CONCLUSION
Morozko failed to provide the necessary information to support a motion for judicial notice
or timely request to be heard on that motion. Thus, Morozko has failed to show error in the district
court’s order denying his motion for judicial notice. Morozko has also failed to show error in the
district court’s determination that his motion for new trial did not disclose newly discovered
evidence unknown to him at the time of trial. Consequently, the district court’s order denying
Morozko’s motion for judicial notice and for new trial is affirmed.
Judge GRATTON and Judge HUSKEY, CONCUR.
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