STATE of Louisiana, Appellee,
v.
Spencer Newton GREEN, Appellant.
Court of Appeal of Louisiana, Second Circuit.
*1274 R.H. Madden, III, Ruston, for Appellant.
Richard Ieyoub, Attorney General, Robert W. Levy, District Attorney, A. Scott Killen, Assistant District Attorney, for Appellee.
Before MARVIN, C.J., and HIGHTOWER and BROWN, JJ.
MARVIN, Chief Judge.
This appeal by Spencer Green of his conviction of four counts of indecent behavior with a juvenile has produced a disagreement between the majority of the three-judge panel and the third panelist who was initially assigned to write the opinion of the panel for the court. One of Green's complaints on *1275 appeal is that the evidence was legally insufficient to convict.
The disagreement arises because the sufficiency issue is presented to us "merely by assignment of error [La.C.Cr.P. arts. 920, 921] rather than by motion for post-verdict judgment of acquittal [La.C.Cr.P. art. 821]," to use the words of the third panelist. Brackets supplied by panel majority.
The third panelist wrote that when not raised by the Art. 821 pоst-verdict motion, but only by the Art. 920 assignment of error, "this [sufficiency] issue is not properly before us ... [but] we opt to address the assignment," citing authorities. Italics supplied. The panel majority disagreed with the third panelist's statement that this court could choose whether or not to address the sufficiency assignment, an issue of constitutional proportion. Simultaneously, other judges on this court called this panel's attention to apparent inconsistencies in opinions of this and other сircuits as to when and how the sufficiency issue is properly raised and resolved, either or both in the trial court and the appellate court. Compare Arts. 821 and 920.
The panel majority holds that the correct pronouncement of our appellate responsibility is that this court has the obligation, and may not opt or choose whether, to review the sufficiency issue when that issue is raised solely by an assignment of error. The panel majority desires to state its reasons for this holding, believing that the criminal bench and bar may benefit from this attempt to state precisely our appellate responsibility and to not further contribute to the inconsistencies in the cases that have addressed this particular issue.[1]
After resolving the issueobligation v. optionthe majority affirms Green's convictions and sentences, adopting, as an unpublished appendix to this opinion, the discussion of the evidence and applicable authorities originally written by the third panelist that resolves Green's assignments.
Appellate Review of Sufficiency Issue; Arts. 920, 921 Obligation or Art. 821 Option?
Before the Supreme Court decided Jackson v. Virginia in 1979, sufficiency of the evidence to convict was reviewable on appeal in Louisiana when it was raised in the trial court, either by a motion for a new trial, a motion for directed verdict, or by post-conviction habeas corpus. See La.C.Cr.P. arts. 778, 851, 920, 921, as originally enacted in 1966 Code of Criminal Procedure and Official Revision Comments.
Comments (c) and (d) to Art. 851 in the original code observed that when the issue was raised by defendant's motion for a new trial in the trial court, the trial judge had the duty to pass on the sufficiency of the evidence under Art. 851(1) and to determine whether the verdict was "contrary to the law and the evidence." We shall discuss infra, in the light of Jackson, the amendments of some of those articles and the adoption of other articles that occurred after the Cоde of Criminal Procedure was enacted in 1966.
As the concurrences in Jackson v. Virginia emphasized, the sufficiency standard to test a jury verdict of guilty, pre-Jackson, was the "no evidence" rule applicable in the trial and the appellate court. Appellate review was of the trial court's ruling on a post-verdict motion, usually one for a new trial. This prior standard began with post-verdict motions in the trial court, such as the Louisiana motions mentioned abovе, the rulings on which were subject to more limited appellate review than under the post-Jackson v. Virginia standard.[2]
After Jackson v. Virginia and amendments to the Code of Criminal Procedure that corresponded with Jackson and the current Louisiana constitution, the applicable standard and procedure for resolving, on appeal, the sufficiency issue no longer requires *1276 the foundation for the issue to be laid in the trial court. When and how the sufficiency issue may be raised, and at what court level, either or both trial and appellate, the issue shall оr may be resolved, is controlled by post-Jackson law and criminal procedure in Louisiana:
A trial judge is not authorized to entertain a motion for a directed verdict of acquittal in a criminal jury trial. See La. C.Cr.P. art. 778 as amended in 1975; State v. Brooks,
An issue "designated in the assignment of errors shall be considered on appeal." Art. 920(1), as amended in 1974. The sufficiency issue pre-Jackson was properly raised in the trial court by defendant's motion for new trial. The Official Revision Comment to the amended Art. 920 explained: "It is now clear that a defendant does not have to apply for a new trial [in the trial court] in order to urge an issue on appeal. Clause (1) [of Art. 920] only requires that the error ... be urged ... in the written assignment of errors." Emphasis and brackets supplied.
The adoption of Art. 821 in 1982 facilitated resolution of the sufficiency issue in the trial court under the Jackson standard: "The defendant may move for a post verdict judgment of acquittal ... [which] must be made and disposed of before sentence." Emphasis suрplied. Art. 821 "clearly manifests an intent to adopt the Jackson standard as the proper degree of deference which both the trial and appellate courts owe to the jury's verdict." Cheney C. Joseph, Jr., Developments in the LawPostconviction Procedure, 44 La.L.Rev. 477, 480 (1983). Italics supplied.
The official revision comment of Art. 821 explains:
Since the abolition of the directed verdict in jury cases, the Supreme Court has recognized its authority to reverse convictions and dismiss the charges if the evidence does not support the сonviction.
The test on appeal to determine the "sufficiency" of evidence is no longer the "total lack of evidence" test. The test now is whether a reasonable fact finder must have a reasonable doubt. The test incorporated as the standard for judgments of acquittal defers to the jury's finding by requiring that the evidence be viewed in a light most favorable to the state. However, if the еvidence is legally insufficient the verdict must be set aside and either a modified verdict or a judgment of acquittal must be entered.
The trial court or appellate court may modify the jury's verdict if the verdict is not supported by the evidence but a lesser included responsive verdict would be supported.
The district attorney may seek review of a post verdict judgment of acquittal or a judgment modifying a vеrdict. Such review does not violate double jeopardy because if the appellate court merely reinstates the jury's verdict no new trial is necessary.
The appropriate appellate court and mode of seeking review are, of course, determined by reference to La. Const. art. 5, §§ 5 and 10 (1974).
Citations omitted. Emphasis supplied. Shortly after Jackson, our supreme court, recognizing the Art. 920 alternative, summarized the develoрments in the law regarding raising and resolving the sufficiency issue:
In State v. Peoples,383 So.2d 1006 (La. 1980), this court abandoned the rule that a defendant must file a motion for new trial in order to preserve the issue of sufficiency of evidence for appellate review. As a matter of due process, the court concluded that the issue could be considered when raised "upon formal assignment of error," notwithstanding the defendant's failure to move for new trial.383 So.2d at 1007 .
State v. Temple,394 So.2d 259 , 261 (La. 1981); see also State v. Raymo,419 So.2d 858 (La.1982). Emphasis supplied.
Peoples, cited аbove, discussing the sufficiency issue, stated: "[It] would be ... a substantial denial of due process to deny a defendant the right to obtain review by this court ... simply because he did not file a motion for a new trial ... Hence, whether or *1277 not a defendant raises a claim ... in a motion for a new trial, upon formal assignment of error, we will review whether the defendant's claim ... has merit."
After being given the responsibility of exercising, except in cаpital appeals, criminal appellate jurisdiction, this court, albeit on only a few occasions, has said that sufficiency errors must be reviewed on appeal regardless of how the error is brought to the attention of the court. See, e.g., State v. Otis,
Jurisprudential adoption of the Jackson standard in Louisiana was initially criticized. See C.J. Summers' dissent in State v. Mathews,
Korman was cited in a footnote in State v. Marshall,
Korman and Marshall and their progeny apрarently sowed the seeds that produced the inconsistencies in the case law about the proper way to raise and resolve the sufficiency issue.
In our earlier case, State v. Seay,
After reviewing the current authorities, including the case law post-Jackson, the majority reaches two conclusions: It is proper, but not mandatory, for the sufficiency issue to be raised in the trial court by an Art. 821 motion. It is also proper to raise the issue solely by an Art. 920 assignment of error to the appellate court without the necessity of any foundation motion, under Art. 821 or otherwise, in the trial court.
As explained by its comment, Art. 821 contemplates that either or both the trial cоurt and the appellate court shall review the sufficiency of the evidence to convict in a criminal jury trial when that issue is "properly" raised in either court. The trial court review of the sufficiency is authorized only before sentence under Art. 821 A. Appellate review of a conviction raising the insufficiency issue is authorized only after sentence is imposed. Otherwise the appeal of the sufficiency error or any аssigned error is premature. State v. London,
*1278 Art. 821 expressly provides two options: "The state may seek review" if the trial court ruling on the Art. 821 motion acquits the defendant either wholly or partly. Art. 821 D. A defendant is not required to, but "may move for a post verdict judgment of acquittal" in the trial court before sentence. Art. 821 A. Our emphasis. Nothing in Art. 821 or its revision comment impliedly or expressly prohibits a defendant from seeking the due process sufficiency review "merely" by an assignment of errоr in the appellate court if he does not exercise his option in the trial court to file the Art. 821 motion. The sufficiency issue may be properly raised either by the Art. 821 motion in the trial court or by the Art. 920 formally assigned error in the appellate court. Appellate review of the issue is available in either instance, notwithstanding the defendant's failure to exercise his option to file the Art. 821 motion in the trial court. Neither method is the only proper method.
An assigned error "shall be considered on appeal." Art. 920. Art. 5 of the Code of Criminal Procedure tells us that the word "shall" is mandatory and that "may" is permissive.
While the Code of Criminal Procedure recognizes that the "option" to review may exist as to insubstantial or non-constitutional assigned errors, we simply are not allowed to choose not to review the constitutional due proсess sufficiency when it is assigned as an error. Arts. 920, 921. The panel majority takes this opportunity to state its holding in a published opinion.
ON THE MERITS
Notwithstanding the testimony of character witnesses called by Green, the victim's testimony is legally sufficient to convict beyond a reasonable doubt because it was believed by the jury and not internally contradictory or in conflict with physical evidence. State v. Thomas,
DECREE
We affirm the convictions and sentences for reasons given in the unpublished appendix to this published opinion.
AFFIRMED.
HIGHTOWER, J., concurs as to the result only, with written reasons.
HIGHTOWER, Judge, concurring.
In a wordy discourse apparently repenting from their previous "inconsistent statements," the other two panel members ultimately declare that a defendant's evidence-sufficiency contentions, although never presented in the trial court, must be addressed on appeal. Their apparent explanation: to do otherwise would be a denial of constitutional due process. Simply put, however, they аre simply wrong.
Even in a federal forum, a defendant's failure to follow consistently-applied state procedural rules for raising constitutional claims will usually not be excused in either direct review or habeas proceedings.[1]Wainwright v. Sykes,
Thus, no constitutional barrier precludes a strict application of Louisiana's procedural requirement that sufficiency challenges be raised in the district court through a post-trial motion for acquittal. Indeed, the U.S. circuit courts apply a similar standard in examining federal convictions. When a defendant fails to move for a judgment of acquittal at the close of all the evidence, the *1279 appellate court's review is limited tо the prevention of clear and gross injustice. See, e.g., U.S. v. Devoll,
Not oddly then, other states with mandatory procedures for raising sufficiency challenges first in the trial court apply their rule at the appellate level by declining to address the assignment, by considering only instances of "plain error," or by "electing" to discuss the evidence very briefly. See, e.g., Hornsby v. State,
The rationale embraced by the Supreme Court of New Hampshire, concerning the demand that sufficiency claims be presented to the trial court, is particularly impressive. After observing that the requirement constitutes a rule "founded in common sense and judicial economy," the court continued:
The requirement that trial counsel object to insufficiency of the evidence in order to properly preserve the issue for appeal ensures that: "First, appellate courts will not be required to expend time and energy ... [where] no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the neеd for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the [objection] requirement ... remove[s] [any] advаntage [to] the unprepared trial lawyer who [would look] to the appellate court to compensate for his trial omissions."
State v. McAdams, supra, at 440-449,
As conceded by the other two members of the present panel, Louisiana's appellate courts have repeatedly held that a challenge to the sufficiency of the evidence must be raised though a motion for post-judgment acquittal per La.C.Cr.P. art. 821. Yet, after acknowledging that our court has only rarely "said that sufficiency errors must be reviewed on appeal regardless of how the error is brought to the attention of the court," these two panelists proceed to rely upon those "few occasions." Their reliance is misplaced, however. In one of the two cited examples of such infrequent departures, State v. Otis, supra, the defendant indeed filed a motion for judgment of acquittal which the trial court denied. Thus, any other statement there concerning the present *1280 issue is plainly diсta. Nor can I subscribe to the reasoning of State v. Wesley, supra, where another member of the instant panel, relying on Otis, recently made the initial announcement that this court had an obligation to review such errors.
Likewise, in quoting from State v. Peoples, supra, the author for the other two panelists twice omits the wording "(claim) of no evidence." (Emphasis added.) The Peoples decision, of course, predated by more than two years the Legislature's enactment of Article 821 as the instrument for addressing sufficiency issues. Similarly, both State v. Temple, supra, and State v. Raymo, supra, cited by the other two panelists, preceded that same legislatiоn. Quite interestingly, too, the Temple court actually found itself unable to reach the sufficiency question but still and here, again, is that wordopted to discuss the evidence extensively in deciding what otherwise would have been the result.
Understandably, if the appellate courts of Louisiana routinely ignore procedural defaults as to sufficiency-of-evidence claims, then the legislatively adopted mechanism, Article 821, will be relegated intо desuetude by both the trial bench and bar. As a result, our trial courts will not be accorded the opportunity to serve their proper function. Obviously, as McAdams alluded, if a reversal is necessary because the evidence does not support the conviction, the trial court stands in the sole position for granting that relief without the cost and delays of an appeal. Conversely, if the defendant can require the preparation of a full record transcript by merely assigning insufficiency for the first time on appeal, the public fisc will suffer needless expense in numerous cases.
Neither can such a policy be supported upon the suggestion that, by addressing the unpreserved complaint on direct appeal, post-conviction petitions alleging ineffective counsel are somehow forestalled. To the contrary, by establishing the obligation to address sufficiency issues irrespective of any proper initiative in the district court, defendants are simply invited to challenge additionally the effectiveness of their appellate counsel who fails to raise sufficiency in the reviewing court. This approach, logically extended, merely exchanges a one-headed PCR demon for a two-headed monster of the same breed. Moreover, the broadened post-conviction complaints (aimed at counsel's actions before the appellate court) must not only be filed in the district courts, see La.C.Cr.P. art. 925, but also paradoxically will require trial judges to declare what would have transpired in the superior court if the sufficiency issue had originally been presented there.
As stated, the Legislature's 1982 enactment of Article 821 established the procedural vehicle for processing sufficiency complaints. That measure sets forth the standard to be utilizedthe evidence will be "viewed in a light most favorable to the state"and states that the motion "must be made and disposed of before sentence." (Emphasis added.) If Louisiana's courts are to superimрose an "obligation" to address sufficiency issues without regard for Article 821, then that departure should come from our supreme court in a broadly articulated analysis designed unequivocably to govern all future cases. Until then, I cannot be a party to fostering the "obligation" advocated by the other two members of this panel.
Having so indicated, my concurrence here extends only to the rеsult.
NOTES
[1] Each member of the panel majority acknowledges he is included among the appellate judges who have concurred in or signed opinions that contain inconsistent statements on the issue. See discussion, infra, p. 1277.
[2] See, e.g., State v. May,
Notes
[1] If a federal habeas petitioner can demonstrate both "cause" for his failure to raise the issue properly and "prejudice," his claim may be addressed.
[2] Although noting that the defendant's procedural default in the trial court resulted in the availability of only a miscarriage-of-justice review, the appellate court "opted" to apply its ordinary standard of review in concluding that there was clearly adequate evidence to sustain the conviction.