Sufficiency of evidence challenge not waived

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Hon. Shirley S. Abrahamson

A criminal defendant does not have to raise a challenge to the sufficiency of the evidence during trial to preserve the challenge for appeal as a matter of right, the Wisconsin Supreme Court held on June 16.

Obea S. Hayes was charged and tried in Rock County with second-degree sexual assault, contrary to sec. 940.225(2)(a). He did not challenge the sufficiency of the evidence during trial.

Nevertheless, he appealed his conviction, arguing the evidence was insufficient on the issue of force. The court of appeals affirmed in a published decision, State v. Hayes, 2003 WI App 99, 264 Wis.2d 377, 663 N.W.2d 351, concluding that, although Hayes was not required to raise the challenge during trial, the evidence was sufficient to support the jury’s verdict.

The Supreme Court accepted review and affirmed the court of appeals in a decision written by Chief Justice Shirley S. Abrahamson and joined by Justices Ann Walsh Bradley and N. Patrick Crooks, holding that sec. 974.02(2) permits an appeal, even though the challenge was not made in the circuit court.

Justice David T. Prosser, Jr., wrote a concurring opinion, arguing that an objection should be waived if not raised, but concluding that, because the courts have long permitted defendants to raise such challenges without first doing so in the circuit court, it would be unfair to suddenly pull out the rug. Prosser agreed the evidence was sufficient to convict.

Justice Diane S. Sykes wrote a concurring opinion, joined by Jon P. Wilcox and Justice Patience D. Roggensack, concluding that sec. 974.02(2) is inapplicable.

Sykes and Wilcox also agreed that a sufficiency of evidence challenge is waived if not made in the circuit court. However, Roggensack did not join that part of the Sykes’ concurrence, writing separately that an objection to the sufficiency of evidence is not waived.

Finally, Bradley wrote separately, to discuss statutory interpretation.

Lead Opinion

The lead opinion of Chief Justice Abrahamson concluded that policy reasons require that a defendant be allowed to challenge the sufficiency of the evidence on appeal, even if he did not do so at the trial level.

The court began with a discussion of sec. 974.02(2), which provides, in relevant part, “An appellant is not required to file a postconviction motion in the trial court prior to an appeal if the grounds are sufficiency of the evidence or issues previously raised.”

The State argued that the statute eliminates only the redundancy of requiring an accused to bring issues, including the sufficiency of the evidence, to the circuit court both during trial and by postconviction motion, but that a defendant must still raise all issues about which he seeks appeal during trial as a prerequisite for appellate review as a matter of right.

Hayes argued that this interpretation would render the words, “sufficiency of the evidence,” surplusage and meaningless.

The court found the statute ambiguous, and both interpretations reasonable, and looked to legislative history for guidance. However, the court found legislative history that supported both interpretations, as well.

Accordingly, the court turned to “an analysis of the purposes and consequences of alternative interpretations of the statute to determine the interpretation that gives the statute its intended effect.”

The court acknowledged strong policy reasons in favor of the State’s argument that a challenge must be made at trial: “such a rule forces attorneys to prepare diligently for trial. … [R]equiring an accused to challenge the sufficiency of the evidence in the circuit court before verdict allows the error to be corrected and might eliminate the need for an appeal. Applying the waiver rule to a challenge to the sufficiency of the evidence … ‘prevents attorneys from “sandbagging” errors,’ when an accused fails to make the challenge for strategic reasons and later claims that the error is grounds for reversal. Requiring an accused to challenge the sufficiency of the evidence during trial and giving the State an opportunity to correct the error, contends the State, is of particular concern because the consequences of an appellate court’s declaring the evidence insufficient are so serious; if an appellate court determines the evidence to be insufficient, constitutional double jeopardy protections would prohibit retrial.”

In addition, the court of appeals would still have discretion to grant relief in the interest of justice, and a defendant could challenge the sufficiency of evidence in the framework of an ineffective assistance of counsel claim.

Nevertheless, the court concluded that even stronger policy reasons support permitting an app
eal as a matter of right.

First, the court found that “Such a claim presents a very serious issue in the administration of justice. If the claim can be proved but is deemed waived, a person whom the State has not proved guilty beyond a reasonable doubt would remain incarcerated.”

Other reasons that have been accepted by courts in other jurisdictions include: the potential miscarriage of justice resulting from a conviction based on insufficient evidence is so great as to justify review even when the issue was not raised in the trial court; and by merely entering the plea of not guilty, the defendant has asked for a judgment of acquittal and has challenged the sufficiency of the evidence by implicitly asserting that the State does not have enough evidence to meet its burden of proof.

Without expressly adopting any particular policy basis, the court concluded, “it is more in keeping with the intended effect of sec. 974.02 to interpret the statute to allow an accused to raise a challenge to the sufficiency of the evidence for the first time on appeal as a matter of right.”

Second, the court found that the possibility of “sandbagging” is minimal, reasoning, “After an accused has been found guilty and convicted, he or she has the burden to prove that no reasonable jury could have come to the conclusion that it did. This burden is heavy, and appellate courts give great deference to jury verdicts. It is therefore unlikely that an accused or defense counsel will try to sandbag the State and the circuit court rather than make the proper objections and motions during trial.”

Finally, because a defendant could still reach the merits of the issue via an ineffective assistance claim, prosecutorial and court resources are not wasted by permitting appeal as of right.

Turning to the merits of the claim, the court found the evidence sufficient to support a jury verdict that Hayes used force, or the threat of force, to compel the victim’s submission, and affirmed.

The Sykes Concurrence

Justice Sykes wrote a concurring opinion, concluding that sec. 974.02(2) is not even applicable to the case, notwithstanding the arguments of both parties that it is, stating, “The postconviction motion statute does not address whether a defendant who neglects to raise a sufficiency of the evidence argument at any time in the circuit court has waived it; the statute is silent on the issue of whether sufficiency of the evidence may be raised for the first time on appeal.

Accordingly, the common-law waiver rule, and not Wis. Stat. sec. 974.02(2), governs the outcome of this appeal.”

Discussing the majority opinion, Sykes wrote, “The majority nonetheless devotes 47 paragraphs to an unusual, free-wheeling method of statutory interpretation as applied to Wis. Stat. sec. 974.02(2), finds the exercise inconclusive, and eventually makes its own policy choice about whether to allow this category of unpreserved argument to be raised for the first time on appeal. The majority assiduously avoids the customary opening articulation of the legal principles that apply to questions of statutory interpretation. This would not be so bad if the accepted legal principles made an appearance later in the opinion. But they do not.”

Sykes added, “the majority interprets Wis. Stat. sec. 974.02(2) as creating a categorical exception to the common-law waiver rule for all sufficiency of the evidence challenges, even though the statute by its terms pertains only to postconviction motion requirements and has nothing to do with the common-law waiver rule at all.

This represents a judicial policy decision, not statutory interpretation; even if it were good policy, it is bad statutory interpretation precedent.”

Both Justice Wilcox and Roggensack joined Sykes up to this point in the concurrence, but Roggensack did not join the remainder, in which Sykes wrote that the lead opinion is not good policy.

Although Sykes acknowledged that the possibility of “sandbagging” by criminal defendants is low, she concluded, “Requiring challenges to the sufficiency of the evidence to be preserved in the circuit court during trial promotes the fairness, notice, and judicial economy objectives of the waiver rule. Automatic preservation without objection or motion at trial deprives the parties and the circuit court of the opportunity to correct the problem prior to appeal and will result in a proliferation of these arguments in the appellate courts. A categorical exception is not needed, as there is statutory and case law authority that allows a reviewing court to ignore a waiver and reach the merits in exceptional cases where necessary to avoid individual injustices. In any event, a waived argument can be raised by way of an ineffective assistance of counsel claim.”

The Roggensack Concurrence

Justice Roggensack wrote separately — agreeing with Sykes that sec. 974.02(2) is inapplicable to the case — but agreeing with the lead opinion’s ultimate conclusion that a defendant should be able to challenge the sufficiency of the evidence on appeal, even if he didn’t do so in the trial court.

Roggensack reasoned, “Appellate reversal based on insufficient evidence means that the State’s case was so lacking in proof that it should not have been sent to the jury. In such a case, society has no interest in upholding the conviction. Therefore, I conclude that the better choice between applying waiver and reaching the issue of sufficiency of the evidence on the merits is the later one.”

The Prosser Concurrence

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Justice Prosser also wrote separately, stating that, while there is compelling evidence to support Sykes’ interpretation that sec. 974.02 is inapplicable, he opposes application of the waiver rule because spotty application of the waiver rule has bred “an expectation on the part of some defendants that it will not be applied to them.”

Furthermore, Prosser noted that even the treatise, Heffernan, Appellate Practice and Procedure in Wisconsin III, secs. 3.3 & 3.4 (3d ed. 2002), states that “sufficiency of the evidence may be raised for the first time on appeal from criminal cases.”

The Bradley Concurrence

Finally, Justice Bradley wrote a concurring opinion, agreeing with the lead opinion that a defendant’s challenge need not be raised during trial to preserve the issue for appeal, but disagreeing with the method of statutory interpretation.

Bradley wrote, “This case presents yet another opportunity for part of the court to engage in vigorous discussions of statutory interpretation. I will not add to the mass of our jurisprudence by continuing to write future concurrences on what I believe will be a continuing discussion. Instead, I invite the reader of our opinions to observe what I am confident will be the well intentioned, but nevertheless early and often misapplication by the Kalal majority of the ‘new’ bright line rules of statutory interpretation.”

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David Ziemer can be reached by email.