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Issue-Preservation: Sufficiency of Evidence – Trial-Level Challenge Unnecessary

State v. Obea S. Hayes, 2004 WI 80, affirming 2003 WI App 99, 264 Wis. 2d 377, 663 N.W.2d 351
For Hayes: Philip J. Brehm

Issue: Whether challenge to sufficiency of evidence must be raised during trial in order to preserve the right to raise the challenge on appeal.
Holding: State v. Gomez, 179 Wis. 2d 400, 507 N.W.2d 378 (Ct. App. 1993), essentially re-affirmed:

¶54. On the basis of an analysis of the policies, purposes, and consequences of alternative interpretations proposed by the parties in the case at bar, we conclude that the following interpretation best gives Wis. Stat. § 974.02(2) its intended legislative effect: A challenge to the sufficiency of evidence is different from other types of challenge not previously raised during trial. This difference justifies allowing a challenge to the sufficiency of the evidence to be raised on appeal as a matter of right despite the fact that the challenge was not raised in the circuit court. This interpretation comports with the text, context, history, and purposes of the statute, including the consequences of alternative interpretations.

A bit of nose-counting is required. See ¶4. The lead opinion, from which the quoted paragraph is culled, gets 3 votes (CJ Abrahamson, and JJ Bradley and Crooks). A 4th, majority-creating vote comes from Justice Prosser, albeit “reluctantly” so, ¶71 n. 36. Reluctant, indeed:

¶89. Although Gomez appears to be questionable, I think the better course for now is to stick with its perceived interpretation of the statute, as a matter of policy, with the hope that the statute will be clarified by the legislature or by this court through judicial rule-making. Creating clear rules governing when and how a defendant should challenge the sufficiency of the evidence in the trial court ought to be a high priority, because the result of the majority opinion is that the state can and will be sandbagged by defendants who remain silent until it is too late for the court to react. I cannot join the majority opinion because it has the effect of turning “quicksand” into solid rock. It is now urgent for courts and prosecutors to develop techniques to force a defendant’s hand, so that a defendant cannot euchre the court into making an avoidable and irrevocable error.

“Euchre”? Not, one would think, a phonetic reference to a certain Hall of Fame announcer but, rather, intended in its colloquial sense, which is to cheat or more charitably, to outwit. If there really is an urgent need to protect vulnerable prosecutors from being dry-gulched by wily defense attorneys no empirical support is forthcoming. How likely is that a trial attorney will intentionally fail to move to dismiss in order to gull the prosecution into failing its burden of proof – in the expectation that relief would follow from on high months or years later? Nor is it as if the appellate courts are flooded with sufficiency challenges, let alone any occasioned by sandbagging attorneys. “I think the better course for now …”: this might suggest a tenuous majority, but we’re not quite done with the vote-counting. Although Justice Roggensack disagrees with the majority’s construction of § 974.02, she nonetheless does not support a waiver rule, essentially on policy grounds (waiver would undermine the State’s burden of proof), ¶¶118-19. In sum, then, there’s a somewhat shaky 4-3 majority construction of § 974.02, but a more solid 5-2 majority opposed to waiver. On the larger question, then, the center holds, at least for now. A statutory change, of course, would be something else.

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