*1 Plaintiff-Respondent, State of Wisconsin, Defendant-Appellant-Petitioner. Obea S. Hayes,
Supreme Court argument No. 02-1542-CR. Oral January 2004. Decided June 80WI 203.)
(Also reported in 681 N.W.2d *3 J., concurs. Bradley, J., concurs.
Prosser,
Sykes, J., concurs. J., joins J., Roggensack, part. Wilcox, joins; J., concurs. Roggensack, were there defendant-appellant-petitioner
For the Brehm, Janesville, and oral J. argument Philip briefs J. Brehm. by Philip argued the cause was plaintiff-respondent
For the Wellman, with L. attorney general, assistant by Sally Lautenschlager, A. attor- Peggy was on the brief whom ney general. ABRAHAMSON, C.J. This is S. SHIRLEY court of appeals1 decision of the of a published
review Hayes, of Obea S. of conviction affirming judgment *4 County, for Rock defendant, in the Circuit Court the 1 377, 663 Hayes, App 264 Wis.2d State 2003 WI N.W2d
4 Deininger, Judge.2 The con- defendant was David G. second-degree pursuant to Wis. victed of sexual assault 940.225(2)(a) (2001-02).3 Stat. judgment appeals
¶ 2. The court of affirmed the of concluding conviction, that the defendant did not have challenge evidence to a of the raise challenge preserve appeal during trial to for a right and the evidence sufficient to matter of was jury's beyond support doubt, a verdict, reasonable guilt second-degree assault. the defendant's sexual Two issues are raised review. first challenge the defendant's to the suffi- issue is whether ciency during of the evidence must have been raised challenge appeal preserve the for as a matter of trial to right. issue, if the reaches was Second, court present support sufficient in the to evidence case jury's beyond verdict, doubt, a of the reasonable second-degree guilt of sexual assault. defendant's appeals the court is af- 4. The decision of Bradley and N. Patrick firmed. Justices Ann Walsh opinion concluding join Crooks the author of this of the evidence did preserve trial to the issue not have to be raised right evidence as a matter of that the jury's support present in the case was sufficient beyond doubt, defendant's verdict, reasonable second-degree guilt David T. sexual assault. Justice concurring opinion, adopts the inter- Prosser, Jr., in a pretation Gomez, out in State v. of the statute set sitting Deininger G. was Appeals Judge David Court pursuant circuit court to the Judicial special assignment Program. Exchange are to the 2001-02 All references the Wisconsin statutes unless otherwise indicated. version *5 4 (Ct. 1993) App. 400, 402, Wis. 2d 507 378 N.W2d Thus, four members of the court reach the same result Sykes on the statute. Justices Diane S. and Jon E concurring opinion, Wilcox, in a conclude that applies sufficiency rule waiver lenges of the evidence chal- "sufficiency challenges and that of evidence [cannot] appeal be made for the first time on as a right."5 Roggensack, matter of Justice Patience D. in a concurring opinion, right concludes that an accused's challenge of evidence is "bottomed requirement prove the State must an accused's guilt beyond a doubt, reasonable and that to relieve the any point process State of that burden at in the under- principle mines the fundamental constitutional that a presumed proves defendant is innocent until the State guilty by requisite degree proof."6 him or her
HH ¶ 5. The defendant did not move the circuit court for a directed verdict at the close of the State's evidence or the close of all the evidence and made no motions judgment. challenged after The defendant the suffi- ciency appeal. evidence for the first time on He continues raise this issue before this court on review. argued appeals ¶ 6. State in the court of argues challenge here that the defendant waived his of the evidence because he failed to raise timely during the issue in a manner trial.
¶ 7. Whether preserve evidence must be raised trial to right question issue on aas matter of is a of law concurrence, Justice Prosser's 70. Sykes' concurrence, Justice Roggensack's concurrence, Justice requiring statutory interpretation. This court decides independently appeals, of the court of but this issue *6 analysis.7 benefiting from its principal
¶ at Stat. 8. The statute issue is Wis. 974.02(2), provides § as follows: which posteonviction and relief in criminal Appeals
974.02 cases.
(2) a required posteonviction An to file appellant is prior appeal an if the motion in the trial court to sufficiency previ- the evidence or issues grounds are ously raised. disagree on the and the defendant 9. The State argues
meaning that Wis. of this statute. The State 974.02(2) § exempts appellants from fil- criminal Stat. sufficiency challenging ing posteonviction motion the a appellate prerequisite review. a to of the evidence as 974.02(2) § position is Stat. The State's only posteonviction not to- motions, toward directed during sufficiency challenging of the evidence ward right. appeal preserve as matter the issue trial According State, an must to the accused by challenge sufficiency a motion right appellate during preserve review trial to 974.02(2), argues § that claim. Wisconsin Stat. redundancy requiring only an State, eliminates including bring of the issues, accused during trial and court both evidence, to the circuit argues posteonviction an ac- The motion. State Cole, 2003 WI See State N.W.2d all
cused must raise issues about which he seeks during prerequisite appellate trial as review as a right. matter of argues
¶ 11. The defendant that the State's inter- 974.02(2) pretation of The Wis. Stat. is erroneous. interpretation, according defendant, ren- State's "sufficiency surplusage ders the words of the evidence" meaningless. The defendant contends that if a challenge to the has evidence to be trial, the raised equated every
the evidence is with other claimed error statutory phrase fall would within "issues previously urges raised." defendant that because "sufficiency uses both of the evidence" and previously phrases raised," "issues the two must have *7 meanings. different phrases meanings
¶ 12. The have different if 974.02(2) § interpreted signifying challenge that a sufficiency previously of the evidence need not be during position raised trial. The defendant's can be by saying summarized that there would no be reason legislature language for the to have included the "suffi- ciency along previously of the evidence" with "issues raised" if failure to raise issue trial would preclude raising an accused from issues right. as a matter of argument by
¶ defendant The bolsters his pointing appeals' to the court of decision State v. (Ct. 1993). App. Gomez, 400, 179 2dWis. 507 N.W.2d378 convicted of Gomez was child enticement and various appealed other sex crimes. Gomez his conviction on the arguing insufficiency offense, child enticement argued evidence. The State Gomezthat the defendant challenge had waived the because he had not raised the during, before, issue in the circuit court or after trial. 974.02(2) § analysis Without of Wis. Stat. or the waiver 8 appeals simply issue, the court of concluded that "Gomez correctly argument upon his is based asserts that convict, under of the evidence to which sec. 974.02(2), require prior postconviction Stats., does not motion."8 appeals concluded in the 14. The court analysis,
present it bound to case, without that was recognize, decision. as does the follow Gomez We although precedential, State, decision, that the Gomez persuasive precedential and value for the has limited following decision not ana- reasons.9 Gomez does 974.02(2). § lyze it consider the Stat. Nor does arguments competing whether an accused who about of the evidence dur- does not right ing trial should be held to have waived argue appeal. the issue on referring The text of Wis. Stat. supports
only
postconviction motions
the State's
974.02(2) referring
interpretation. The text of
previously
"sufficiency
raised"
of the evidence or issues
interpretation.
supports the defendant's
(Ct.
Gomez,
400, 404,
2d
State v.
2002 WI
Cook,
166, 186,
1;
560 N.W2d 246
Cook v.
208 Wis.
N.W.2d
15,
(1997);
Luety, 156 Wis. 2d
456 N.W.2d
Vollmer v.
Bd.,
*8
(1990);
State ex rel. Swan v. Elections
(1986) (Abrahamson, J., dissenting). A decision
A 974.02(2) § ¶ 18. Wisconsin Stat. must be viewed chapter chapter in the governs context 974 as a whole. This procedure appeals, trials, criminal new Nothing chapter explicitly writs of error. ad- dresses the issue of whether a to the suffi- ciency of the evidence must raised in the circuit court be during preserve trial to the issue for as a matter right. 974.02(2)
¶ 19. Wisconsin Stat. must also be chapter governs viewed in the context of 972, which 972.10(4) governs criminal trials. Wisconsin Stat. provides motions trial. Section that at may case, conclusion of the entire an accused move ground on record for a dismissal. One for dismissal insufficiency is the of the evidence. for a Motions directed verdict and motions to at the dismiss close the State's case or at the close of all are evidence accepted practice. The court has held if an accused grounds insufficiency moves to of evidence, dismiss *9 may to allow the exercise its discretion circuit court testimony after the State additional to introduce State has rested.10 the court to examine Wis. The State asks 974.02(2) 805.14(6), § § in the context of Wis. Stat.
Stat. practice governing in civil actions. Rules of civil a rule proceedings apply "unless in all criminal actions manifestly requires construc- a different context of a rule 805.14(6) any "[i]n provides motion that tion."11Section grounds challenging evidence, the particularity.... If stated of the motion shall be with challenging grants a motion the court the record or the court shall state on evidence, the writing evidentiary particularity defect under- with acknowledges lying a court the order." State against guilt an accused but a verdict of cannot direct argues 805.14(6) § applies crimi- civil and both challenging compels that a motion nal cases and trial or be be made appeal. on waived argues consider also that we must 21. The State general rule in the context of
Wis. Stat. appellate practice in the not raised "that issues the first time not be considered for circuit court will important appeal."12 rule serves several This waiver judicial objectives Failure to administration. in sound 10 State, 283, 212 N.W2d 117 Grover v. 61 2d Wis. (1973).
11 Stat. 972.11. Wis. 12 Gee, 378, 384, Corp. v. 2d 577 N.W.2d Apex Elecs. 217 Wis. Huebner, (1998). 10-12, See also State v. 2000 WT ¶¶ 433, 443, Ehly, Wirth v. 727; 2d 93 Wis. 611 N.W.2d (1980). 287 N.W.2d deprives in the both the raise an issue circuit court adversary opportunity and the circuit court of *10 perhaps remedy and the defect with- address issue necessity appeal. The out the ages attorneys of an waiver rule encour- prepare for and conduct trials more diligently prevents attorneys sandbagging and from adversary counsel and the circuit court.13 argues nothing
¶ 22. The State in the statu- tory provisions governing suggests criminal trials that a challenge sufficiency might to the be from other and therefore different subject kinds claims not general arguments to the rule that not raised at trial are deemed waived. 974.02(2) § Examining
¶ 23. Stat. in the con- Wis. general appellate text of other statutes and the practice rules of definitively question does not answer the critical legislature sought to eliminate in whether Wis. 974.02(2) § requirement challenge Stat. sufficiency to the
of the evidence be made the trial in preserve appeal order to the issue for as a matter of right.
B statutory legisla- ¶ 24. next We consider 974.02(2) § history gain insight into tive Wis. Stat. 974.02(2) legislature intended. what the Section was part complete enacted in of a first overhaul of appellate practice Wisconsin with creation of Appeals. Court of Wisconsin enacted Stat. When 974.02(2) differently was worded than it is now. The seemingly provided statute that a 13Huebner, 11-12. ¶¶ necessary of the evidence was not to raise right. the claim on as a matter of Section 974.02(2) stated: challenging
A motion of the evidence is necessary to raise on appeal evidence.14 Legislative Analysis
¶ 26. The Reference Bureau Bill 148, of 1977 Senate created the Judicial Council printed displayed with and on the bill introduced in legislature, seems to limit the motion to a motion Although for a new trial. the word "motion" in the bill any refer motion, seems to the reference in the 1977 may merely version of have been intended to eliminate the need to make a motion for a new trial *11 preserve challenge sufficiency to a the to appeal. according Analysis, for In words, other to the apparently "postconviction the word "motion" meant Analysis motion." The reads as follows: (2) Subsection is intended to eliminate the need for a judgment motion for new trial to set aside the because insufficiency the of of evidence as a condition to raise sufficiency appeal. the of evidence on It does not change quantum of evidence needed for the court to accept guilty plea. a Analysis sug-
¶ 27. Neither the statute nor the gests, however, of whether the removal the need to file a motion for a trial need new also eliminated the to file challenge a motion ciency trial in order to the suffi- appeal right. of the evidence on as of ¶ 28. This court of considered 1977 version 974.02(2) § per in in Wis. Stat. a curiam decision State (1982). Monje, The N.W.2d added). § (emphasis ch. Laws of 1977 argued, for reconsid- on a motion in that case offender 809.30(1)(f) (Rule) entirely § eration, that Wis. Stat. postconviction motions because the need for eliminated 809.30(l)(f) provided language that of Rule appeal seek- or motion shall file notice "defendant days ing postconviction of the service of relief within 30 transcript."15 Monje, held that Wis. Stat. In the court 809.30(l)(f) (Rule) postcon- § the rule that did not alter challenges necessary preserve were viction motions Monje 809.30(l)(f) right. appeal further The court as a matter for in referred the word "or" Rule concluded 974.02(2) challenges exception to the under Monje court concluded of the evidence. a matter of to be considered as that "for issues on right, postconviction except in must be made
motions challenges the evidence."16The Monje specify whether the elimination court did not respect postconviction file a motion with the need to of the evidence also on the during trial. the need to raise the issue eliminated Monje decision, Stat. In the wake of the response apparently to a amended, was prepared position paper Vetzner, Bennett Charles Appellate the State Public Division of Chief paper, Attorney position In Office. Defender's appellate had, concerns that counsel Vetzner raised Monje, postconviction prior as not viewed motions previously required had been raised when the issue *12 issue The rationale was that the same the trial court. presented Attor- to the circuit court. not be twice need 15 695 Monje, 2d 325 N.W.2d State v. 109 Wis. (1982).
16 138, 153a, Monje, 327 N.W.2d State v. 109 Wis. clarifying court's hold (denying motion for reconsideration ing). 974.02(2)
ney urged that Vetzner be amended to practice avoiding presentation reflect the this double of the issues to the circuit court. Attorney primarily Vetzner was thus not challenges sufficiency
concerned with of the previously evidence. He was concerned about issues briefly in did, raised the circuit He however, court. challenges comment on of the evi- interpretation dence and on his of this court's decision Monje [Monje] "[T]he in as follows: court concluded necessary that it is still to raise all issues twice except court, trial A evidence. presented claim of insufficient evidence need never be initially appeal in the trial court and can be raised in an Appeals."17 in the Court of explained Nevertheless, Vetzner that his
proposed any way statute "would affect tradi- concepts preclude pursuing tional of waiver which an objection if issue after conviction an or motion was not properly change only tendered beforehand. The would unnecessary bring make it an additional trial court proceeding again previously raise those issues de- adversely cided Vetzner, to the convicted offender."18 apparent language, drafter of the seemed to believe of the evidence claim could be raised having on without been raised at trial. remedy Monje decision, 33. To the effect of the proposed
Vetzner to recreate as follows: Paper Position Vetzner, Proposed Charles Bennett (on Change in Sec. 974.02 at 2 file in the Records of the Judicial Wis.). Council, Madison, Library, Wisconsin State Law 18 Id. at 3. *13 in the post-conviction motion necessary to file a
It is are grounds appeal to an when prior trial court raised.19 previously or issues sufficiency of the evidence 974.02(2) §to amendment Vetzner's proposed 34. unanimously and Judicial Council by was discussed in 1983 meet- January its the Council adopted Reference Legislative made to the A was request ing.20 in the for introduction the proposal to draft Bureau in placed A letter was Vetzner's legislature. copy 1983 background.21 file as drafting the language amended legislature The form, in to its current 1983 Wis. Stat. the same as substantially is language adopting Refer- The Legislative amendment. proposed Vetzner's Bill which of 1983 Senate Analysis Bureau's ence it was on the bill when displayed was with printed reads as follows: in the legislature, introduced (2) amended to eliminate NOTE: Subsection in the trial court an issue twice to necessity presenting Monje, appeal. In State v. preserve it for order to (2) (1982), construed to sub. was Wis. 2d right preserve motion to require postconviction any than of the evidence. issue other doctrine, modify requiring the waiver does not This bill alleged error. It timely objection preserve or motion to postconviction merely eliminates the need for additional again in the trial raising those same issues proceedings court.
19 Jd. Vetzner, B. L. Fullin to Charles Letter from James (on Council, 14,1983 Records of the Judicial February file Wis.). Madison, Library, Law Wisconsin State 21 Id. argues State is an Vetzner's letter anomaly holding Monje. an incorrect view of the It *14 argues conveyed even if that Vetzner's view had been to position conveyed the Council, Judicial his was not to the legislature Instead, that the law. the enacted State takes position Legislative the that the Reference Bureau Analysis legislature suggests to the communicated that requirement timely the waiver doctrine and the of mo- objections during preserve alleged tions or trial to error were not modified the 1983 amendment to 974.02(2). § position
¶ In 37. the contrast, defendant takes the § interpretation that Vetzner's of Stat. strong
and his draft of the of amendment are indicia the adopting reasons for the statute as enacted and are legislative supporting position. evidence of intent his statutory legislative history The and lend support party's respective meaning each of to views the 974.02(2). of Wis. Stat. 1983 amendment was designed codify seemingly interpretation to Vetzner's challenge sufficiency that no need of exists to the the during evidence trial. Neither the text of the 1983 Legislative nor amendment the Reference Bureau Analysis conclusively support or the bill Vetzner's interpretation. history short, defendant's In the 974.02(2), like statute, the text and context of the supports interpre- the and the defendant's both State's tations of the statute.
C analysis We turn to an the therefore interpreta- purposes consequences of alternative interpretation statute the that tions to determine gives the statute its intended effect. argues strong policy there are 40. The State challenge to the suffi- an accused must raise
reasons preserve ciency trial to the issue of the evidence right. According State, to the as a matter of for attorneys diligently prepare. for rule to such a forces requiring an accused trial. The State asserts challenge the circuit allows the error be corrected court verdict before appeal. Applying might for an eliminate the need challenge waiver rule to attorneys "prevents according State, evidence, 'sandbagging' errors,"22 an fails to from when accused challenge strategic and later reasons make Requir- grounds for the error is reversal23 claims that ing an accused giving opportu- *15 during the State an
evidence trial and nity error, State, is of correct the contends the consequences particular of an concern because the declaring appellate are the evidence insufficient court's appellate serious; if determines the evidence so an court jeopardy pro- insufficient, to be constitutional double prohibit retrial24 tections would 22Huebner, 486, 235 Wis. 2d 23 argues at trial the did not The State that defendant the find evidence on jury assert that the should the insufficient violence; the element of use or threat force or that defendant did on the lesser crime of sexual not ask an instruction use or threat of or contact without consent but without force violence; that the agreed and that the defendant with the State credibility his and that of the victim. The State claims issue was give did fair he was that the defendant not it notice that on element contesting sufficiency the of the evidence the force the sequence the of events described crime based on the trial, during Had the defendant alerted the State victim. argues, been clarified at that time. State the record could have (1984). Ivy, v. 119 Wis. N.W2d State argues application ¶ 41. The State that the prevent appellate waiver rule will not an court from considering challenge a to the of the evi- exceptional dence in cases even an when accused has preserved during may the issue trial. This court grant exercise its discretion to hear a claim and relief urges even when issue has been waived.25The State appeals that the did not defendant ask the court of or grant justice. this court to relief interest Finally, appropri- ¶ 42. the State asserts that the way analyze challenge ate a failure trial is within the framework of argues ineffective assistance of counsel. The State the defendant has claimed never that his trial counsel constitutionally postconviction ineffective, was and no factual record exists on this issue. manifestly
¶ 43. The defendant asserts that it is unjust appellate apply for an court to the waiver rule to a of the evidence. He relies Harrington, State 512 N.W.2d261 (Ct. 1994), App. appeals in which the court of held a circuit court's failure to find factual basis to support guilty plea the accused's constituted manifest injustice warranting though appellate even relief plea negotiation. plea accused's was result significance Harrington by State minimizes the not- manifestly ing authority that no Wisconsin holds it is unjust appellate apply for an *16 court waiver rule to challenge a to the of the evidence. Although good
¶ 44. makes a number of State policy, consequence arguments, ultimately purpose, persuaded by we not are them. 25 See, Schumacher, e.g., State v. 388, 406-07, (1988).
19 challenges the suffi- First, when an accused arguing ciency that the evidence, he or she is proving the commis- has not carried its burden of State beyond a claim a doubt. Such of a crime reasonable sion very presents of a in the administration serious issue justice. proved waived, is deemed If the claim can be but beyond guilty proved person the State has not a whom remain incarcerated. a reasonable doubt would them, not all of have courts, 46. Several but agreed public policy argument the defendant with the potential conclude that the mis- makes. These courts carriage justice resulting from a conviction of based justify great evidence is so as to review even insufficient was not raised the trial court.26Other when the issue sufficiency of that a courts conclude if trial is not waived even not raised evidence by merely entering guilty, plea of not because judgment acquittal for a of and has defendant has asked challenged by implicitly of evidence 26 McGovern, 1298, 494 N.E.2d 1300-01 Commonwealth (Mass. 1986) ("[T]he did move for find required defendant not However, ings guilty. findings legally of based on insufficient a inherently enough are to create substantial evidence serious Dion, miscarriage justice."); 575 risk Commonwealth v. 1991) (Mass. (same, McGovern);, 759, App. quoting N.E.2d 764 Ct. (Mass. Sims, App. Ct. Commonwealth v. 565 N.E.2d 1991) (sufficiency of evidence issue not treated as waived because miscarriage justice); Commonwealth v. of substantial risk (Mass. 1987) (same). Baldwin, App. 509 N.E.2d Ct. (Tenn. Miller, 115374; WL *2 Crim. See also State v. 2004) waiver, sufficiency of App. (despite court addressed evi- Otto, justice"); dence in "interest of State v. 717 A.2d issue 1998) (Conn. (addressing Ct. App. because it was constitu- although evidence claim waived "of magnitude alleging the violation of fundamental tional review"). right... adequate permit and the record is *17 asserting enough that the State does not have evidence proof.27 to meet its burden of challenges
¶ 47. Federal courts have reviewed to challenge of the evidence when was during not made trial or was not renewed trial including prevent standards, under various "to a mani- miscarriage justice," "plain fest error,"28 to avoid
27 805.17(4) (in See Wis. Stat. actions tried to the court jury, sufficiency a without may evidence be on raised appeal regardless objected whether the party in the trial court trial); South, a or moved for new 619, United States v. 28 F.3d (7th 1994) (in trial, 627 plea Cir. a bench guilty of not is the a acquittal); same as formal motion for United v. States Atkin (9th son, 1993) 501, (same, F.2d 5th, 6th, 990 503 Cir. following 7th, Circuits); States, and D.C. Hall 676, v. United 286 F.2d 677 (5th 1960) (same); Himmerick, Cir. State v. 568, 499 N.W.2d 571 (N.D. 1993) (holding trial, that a bench merely pleading "not guilty" preserve is sufficient to a Osier,
challenge appellate review); for 441, v. State 569 N.W.2d (N.D. 1997) (same, citing Himmerick); Miller, 443 2A Wright & (3d Federal Practice and at Procedure: Criminal 469 322-23 2000) (arguing ed. entering plea guilty of not should trials). preserve issue for jury trials as well as bench 28 (9th v. Barragan, 919, United States 263 F.3d 922 Cir. 2001) (claim presented after all the evidence was in is ordinarily waived, appeals but court of claim "to pre reviews miscarriage justice, error."); vent a manifest plain or for (6th 2001) v. Emuegbunam, United States 268 F.3d Cir. (failure to challenge raise to of evidence at end government's only case or at end of all evidence reviewed miscarriage justice); Finley, manifest United States v. (2d 2001) (failure F.3d 202-03 Cir. renew sufficiency of evidence end of all puts at evidence burden persuade plain injustice); accused court of error or manifest (8th (defense Cole, 2001) United States 262 F.3d Cir. counsel's failure to claim for renew insufficient evidence follow ing normally waiver, all of the evidence would constitute but government defendant's prove "assertion failed to one unjust" grossly "clearly prevent conviction.29 *18 by employed Although language these the general case, the from case to varies somewhat courts challenge the a to from the cases is that because sense sufficiency goes to the heart of a of the evidence guilt trial, courts will in a criminal of determination challenge way on merits. The the its find a to address finding guilt integrity protect of is such the of a to need waived. The to treat the issue as that courts hesitate right it of is muted because limits doctrine waiver beyond prove a its case an to have the State accused doctrine is the waiver doubt because reasonable imported fully considering civil without from actions justice. system of criminal the accusatorial challenge that a courts conclude 49. These import sufficiency of evidence is sufficient appeal entitled to raise it on an accused should be that challenge right was not even when the raised as during interpret Stat. 974.02 as trial. could We prejudice his substantial the elements of his crime would correct, sufficiency be and we thus review his rights, proven if Pruneda-Gonzalez, United States claim."); 953 evidence (5th 1992) (manifest justice); miscarriage of Cir. 193 F.2d (7th 1990) Caudill, United States v. F.2d Cir. (same). an provides 29 of Criminal Procedure
Federal Rule an when the evidence is may acquittal accused move for after the close of the a conviction either insufficient to sustain evidence, a government's evidence, of all after after the close discharges jury. Federal Rule guilty or after the court verdict 29(c)(3) required to move for provides "[a] defendant is case to the acquittal before the court submits the judgment a making jury jury for such a motion after prerequisite as discharge." (1st 1991) Richard, 115, 117 United States v. 943 F.2d Cir. motion, court would review
(despite proper failure to make injustice). gross of the evidence claim requiring challenge to the of the evidence to be made the circuit be court or as a matter waived right by deciding of sufficiency and then undercut the statute some mechanism, as such plain keeping error.30 We conclude that it is more in interpret with the intended effect of 974.02 statute to an allow accused to raise a of the evidence for the first time on right.
a matter of although Second, the State is correct that it give preferable opportunity an State to correct insufficiency ap- an of evidence trial to avoid peals, possibility "sandbagging" is minimal. After guilty an accused has been convicted, found he or *19 prove jury she has the to burden that no reasonable could have come to the conclusion that it did. This heavy, appellate give great burden is and defer- courts jury unlikely ence to It verdicts. is therefore an try sandbag accused or defense counsel will to the State proper and the circuit court rather than make the objections during and motions trial. points
¶
Furthermore,
51.
as the defendant
out,
persons facing
delay
incarceration have little reason to
making
they
to
motion
dismiss because
will be
waiting
prison
being
appeal
litigated.
while an
is
"sandbagging."
These factors
limit
will
Third,
because the
an
State concedes that
claim,
ineffective assistance
counsel
which would
require proof
essentially
issues,
the same
could be
676, 687,
Gustafson,
See State v.
119 Wis. 2d
350 N.W.2d
(1984) ("[P]lain
error is 'error so fundamental
that a new
or
granted
though
trial
other relief
be
even
must
the action was
time.'")
objected
(quoting
Sonnenberg,
not
to at the
State v.
(1984)
159, 177,
State,
(quoting Virgil
Wis. 2d
brought and court these, in cases like subject greater as a to taxation not be will resources decision. result our designed, justice system is The criminal only punish possible, those who have it
insofar as by supported If a is not crimes. conviction committed upon legal evidence, it is incumbent sufficient system conviction is over- certain that to make guilty punished, whose but those should be turned. guilt by beyond proved the State not been has punished. doubt should not be reasonable analysis policies, of an 54. On the basis interpreta- consequences purposes, of alternative parties proposed bar, in the case at we tions gives following interpretation best conclude legislative A effect: its intended Wis. Stat. challenge different of evidence is from challenge previously types reused other justifies challenge allowing a difference trial. This be raised right despite the fact that the was a matter of interpretation in the circuit court. This not raised histoxy, purposes comports context, text, with the including consequences of alternative statute, interpretations. *20 may Having concluded that the defendant right
challenge sufficiency of the evidence as even though trial, we he did raise the the merits of his claim. turn to determining The standard of review support a evidence was sufficient to con- whether the appellate may "an viction is that court not substitute its judgment for that of trier of fact unless the evi- favorably dence, viewed most to the state and the probative conviction, lacking is so value and force acting reasonably, fact, no trier of could found have guilt beyond a reasonable doubt."31
¶ 57. Our review of a very give great claim is therefore narrow. We deference to the determination of the trier fact.32 We must support upholding examine the record to find facts that jury's decision to convict. ¶ 58. The defendant concedes in this court that the evidence showed that he had sexual contact with the victim, M.M., and that the sexual contact occurred without M.M.'s consent. The defendant thus concedes 940.225(2)(a) first two elements are satis- fied.
¶ 59. The sole claim is defendant's that the evi- prove dence was insufficient to that the nonconsensual sexual contact was achieved force or threat of force. The second-degree or "use threat force or violence" element of
sexual
assault
under Wis. Stat.
940.225(2)(a)
is satisfied if the use or
of force or
threat
compelling
violence
directed to
is
victim's submis-
sion.33 The
element
satisfied whether the force is
part
used or threatened as
of the sexual contact or
part
whether it is
or
used
threatened
sexual
Poellinger,
State v.
493, 507,
153 Wis. 2d
32Id.
Bonds,
See State v.
contact testimony argument at trial is that M.M.'s defendant's of force or violence connect the use or threat did not contact, and therefore the nonconsensual sexual with jury's support the the evidence was not sufficient to beyond a doubt. verdict, reasonable According disagree ¶ 60. We with the defendant. (who record, M.M. 4T1" and the defendant and to weighs pounds) rela- were involved an intimate together tionship. In two lived four months. apparently her rela- 1999, M.M. terminated October tionship October, That the defen- with the defendant. argument in dant and M.M. had an which the defen- and threatened kill dant kicked down M.M.'s door police, defendant her. M.M. called the and the was jailed. signed Upon release, the defendant a 72-hour his immediately order, which he violated no-contact returning to house. M.M.'s March 24, 2000, 61. M.M. testified that on dwelling. way appeared her He forced his defendant at home, her and He her of into a scuffle ensued. accused "messin1around" and stated that he wanted to have sex her, wall, her. He shoved her into a with choked vagina repeatedly her while she touched breasts struggled get He tore her t-shirt and bra. He free. finger. broke her He told her he wanted throw her down on the floor and have sex with her. contrast, In he the defendant testified that grabbed buttocks, or or at-
had never M.M.'s breasts tempted vaginal physi- area, her or tried to fondle cally harm her. reprint, pertinent direct verbatim, 63. We
and cross-examination M.M.: 34 Id
Q: go evening Let's back to the of March 24. You said Hayes door, Mr. you opened knocked on the it. Right.
A:
Q: you Hayes Did invite Mr. inside? No,
A: I did not.
Q: Hayes Did Mr. come inside? Yes,
A: he did.
Q: How did happen? in, put
A: He his foot so—between door.
Q: happened? Then what right
A: He walked on in. Q: Hayes Mr. say you time, What did at if anything? you
A: you Where have been? Apparently, must have there, been out messin' around.
Q: you say? did What him, A: I told no. I told him that was none of his business.
Q: happened What after that? up A: putting He ended his hand on me and touched places My me in he supposed where wasn't to be. breasts, my plus vagina.
Q: many Hayes you How did on times Mr. touch breasts?
A: or About two three times. you mentioned?
Q: the other areas What were part. My sitting A: vaginal area?
Q: you referring your Are Right. A:
Q: you he touch there? many And times did how times. A: Two or three
Q: you Did touch the buttocks? he A: Yes.
Q: many How times?
A: Two. period of
Q: you say anything Did he time? my and then tored grabbed
A: ahold to clothes He T-shirt, along the bra. my with [sic] any Q: Okay. he indicate—make statements Did you point? you wanting to have with at some about sex Yes, A: he did.
Q: that occur? When did night.
A: The same Q: during— occur Did that A: During. your off?
Q: taking —the clothes time he was Right. A:
.... [M.M. testified that her shirt and bra were ripped.]
Q: long How did struggle go on? A: It went on for a really little while. I pinpoint can't exactly know about you what time. When are scuf- fling fighting, you looking are not at no watch to out, you find know?
Q: particular injuries What did the defendant inflict you? choking A: He ended up hand, me with the left and he ended up shoving against my me bathroom corner wall. Q: Okay.
A: And up putting then he end my [sic] a scar on chest. Then grabbing my he ahold to trying hand and my fingers, break finger. but he broke the one Q: Going Hayes back to your when Mr. was in apart- ment on March specifically 24th of you what do saying recall him wanting about him to have sex with you?
A: I Because hadn't had sex him with since heaven knows when.
Q: beg your I pardon?
A: I hadn't had sex with him at all.
Q: specifically What say? did he A: He said I had way been out with someone else. The it, puts gonna he he was have me sex with because he that, called thing. his
Q: you Did police he—did tell the officer that he told you you that he wanted to throw down on the floor and you? have sex with Right.
A: today? you happening, recall Q: that what Is Right. A: explained: M.M. further cross-examination,
On what was apartment, Q: got as he inside As soon thing happened? the first around. accusing me of messin' up He done end A: you that he to touch Q: before he tried So it was fooling around? you of you he accused accused —that Right. Right. A: time, you say?
Q: what did Okay. At the my wasn't, him that it was I told I told him I A: go find him someone else. I told him to business. your Q: then touched breast? He Right. A: you at the time?
Q: standing in front of heWas Right. A: your shirt?
Q: put up he his hand Did Right. A: your bra?
Q: put hand inside of Did he his Right. A: go
Q: long did that on? How awhile, kept I Well, quite it because A: went on stuff, try him, all of that kind of wrassling with away from me. get him *25 Q: right. doing All But this was —he was this under- your neath clothing; is that correct? Right.
A: Q: well, At the how it he stopped touching was time — your you push away, just breast? Did him or did he stop? pushed away.
A: I him Q: you your When testified that he vagi- fondled he — nal area. Right. A:
Q: your Was that also underneath clothing?
A: right. pants That's I had on.
Q: your And he pants? reached down inside Right. A:
Q: your Same with when he touch [sic] buttocks? Right.
A: agree appeals ¶ 64. We with the court of testimony chronological M.M.'s did not follow a A order. could, reasonable factfinder however, draw the infer- verbally ence that the defendant threatened to have retaliatory sex with M.M. and that the sexual contact wrestling struggling occurred while he was with Wrestling, struggling, her to overcome her resistance. verbally threatening tearing sex, unwanted the victim's breaking finger clothes, her are a sufficient use or support threat of force or violence a conviction under 940.225(2)(a). Stat. testimony support ¶ 65. M.M.'s was sufficient to jury beyond verdict, doubt, a reasonable that force or prior the threat of force or violence used was or *26 compel during sub- the victim's sexual contact the sup- in conclude that the evidence mission. We cannot lacking port in is so defendant's conviction of the probative a matter said, and force that it can value be have drawn trier of fact could law, that no reasonable threat of force or violence inference that force or the compel during prior or the sexual contact to used was Accordingly, we do not disturb the victim's submission. jury's decision of the verdict, and we affirm the appeals. court appeals
By decision of the court of the Court.—The affirmed. {concurring). BRADLEY,J. I WALSH 66. ANN agree majority opinion defendant's with sufficiency of the evidence need not be to the preserve the issue for as a raised trial to right. agree in this matter of I also that the evidence support jury's I did verdict. As case was sufficient County, Circuit Court Dane in State ex rel. Kalal v. for 633, 110, I write 58, 271 2d 681 N.W.2d 2004 WI Wis. spirited separately of the discussions of statu because tory majority interpretation in the forth in the set Sykes. Although again I com concurrence Justice join ultimately discussion, I of the mend both authors neither. my past, on 67. Based observations statutory interpretation "bright re-
new line" rules majority cently by in Kalal often set forth will be always applied. but not Earlier this term mouthed Keup DHFS, 59, WI majority purported clearly N.W.2d concisely the same "bright statutory line" rules of set forth the substantially interpretation different from which are bright majority.1 line rules of the Kalal The now- bright statutory interpretation defunct line rules of Keup majority were honored as much in the Although hardly breach as in the observance. the ink is dry Keup bright statutory interpre on the line rules of they tation, now branded are
a s presents yet opportunity ¶ 68. This case another part engage vigorous of the court to discussions statutory interpretation. I will not add mass of jurisprudence by continuing our to write future concur- continuing I rences what believe will be a discussion. opinions Instead, I invite the reader of our to observe *27 what I am confident intentioned, will be the well but early misapplication nevertheless and often majority bright statutory Kalal of the "new" line rules of interpretation. respectfully For the reasons, above I concur. {concurring).
¶ PROSSER, 69. DAVID T. J. As a general presented rule, issues not to the circuit court appeal. will not be considered for the first time on State (1997). Caban, 597, v. 210 2d 604, Wis. 563 N.W.2d501 1 recently majority As ago, two months set forth a relatively lengthy line bright discussion of the defunct rule now statutory interpretation. in majority part: The stated unambiguous, give If the statute is we must effect to the words according meanings.
within the statute
to their
DNR
common
v.
Co.,
Light
403, 407,
&
Wis. Power
108 Wis. 2d
This it be honored to sense, normally preserve must to circuit courts. deference appellate is that rules problem general frequently moment, At the of the have exceptions. evidence to be one of appears exceptions rule of waiver. general to trace the attempt 71. This concurrence will vote to explain my separate
source of this exception affirm.1 Beek, In State v. Van (1966), claimed that
N.W.2d 873
the defendant
at
trial
not sufficient
to prove
evidence adduced
his
was
a reasonable doubt. He
guilt beyond
neglected,
his
however,
jury's
to move for a new trial or to set aside the
this court
to evaluate the
verdict. On
refused
appeal,
evidence,
saying:
The failure to
a motion for a new trial
present
deprived
opportunity
the trial court of the
to examine
very
upon appeal.
question
presented
which is now
years
past
At least four times
six
this court
appellant
has asserted that such an omission barred an
right
from the
to have the evidence evaluated
this
[citing
cases]....
[W]e
court
find no factors
the case
appellant from
prompt
at bar which
us to relieve this
quicksand
trapped.
in which he is
*28
1
opinion
This concurrence will refer to the
of the Chief
"majority" opinion.
as
of the court
Justice
the
Three members
Abrahamson,
Shirley
—Chief Justice
S.
Justice Ann Walsh
Bradley,
agree
Patrick
Justice N.
with
statu
Crooks—
tory interpretation
opinion.
reluctantly
in the
The writer
interpretation of
set out in
adopts the
the statute
State
(Ct.
1993).
Gomez,
400, 404,
App.
179 Wis. 2d
34 Id. at 52-53. Thompson,
¶ 73. A later, month State v. 31 Wis. (1966), 365, 367,142 779 court N.W.2d reiterated point, saying: effect, appeal In this is a to the suffi- ciency supporting the conviction.... appellant no made motion the trial court for a trial, new nor did he move to have the verdict set aside grounds on the Accordingly, of insufficient evidence. Thompson right Mr. does have the to have the upon appeal. evidence reviewed Escobedo, See also State v. 44 89-90, Wis. 2d 170 (1969); Schneidewind, N.W.2d 709 State v. (1970);
110, 119-20, State, 176 N.W.2d303 Davis v. (1970); 180, 184, Wis. 2d N.W.2d State v. (1971). Charette, 51 531, 536, Wis. 2d 187 N.W.2d203 part comprehensive In as of a revision appellate procedure, legislature approved a stat- "Appeals post-conviction criminal, ute relief in juvenile, youthful offender and mental commitment (1977-78). majority cases." Wis. Stat. 974.02 As the opinion points originally out, "A read: mo- challenging sufficiency tion of the evidence is not necessary appeal to raise on Majority op., evidence." did not This subsection (1) in isolation, stand however. Subsection stated that appeal appeals "an ... or a motion court felony post-conviction in a taken in case must be relief provided the time and manner in s. 809.40." The post-conviction reference to "motion for relief' in sub- (1) (2) implies read section subsection should be challenging [post-conviction] "A follows: motion necessary of the evidence is not to raise on added.) (Emphasis of the evidence." quite change long- It would have been odd to *29 of the in a section of trial practice rule established procedure. postconviction with dealing statutes 1978, Ap- manual on Wisconsin In their R. Martineau and Richard Practice, Robert J. pellate statute: the revised described Malmgren Motions § 2706. Post-Conviction Motions Necessity Filing Post-Conviction A. The mo filing post-conviction procedure for direct substantially changed. Under cases is tions in criminal jury case in a trial procedure, a defendant the former order to for a new trial in required to file motion was right. appeal as a matter of any issue on raise Sanford (1977). State, This 2d 250 348 v. 76 Wis. N.W.2d file counsel to required post-conviction prior procedure asking it to the trial court usually futile motions with at several earlier often raised review issues were particularly Supreme the trial. The Court was points in insufficiency of the evi a claimed reluctant to review on such assertion. State a motion based dence without (1971). Charette, 2d 187 N.W.2d v. 51 Wis. recom Indeed, Supreme Court even in bench trials filed the trial court that motions be with mended evidence, notwithstanding asserting lack of sufficient 974.02(5) repealed Section specific provision State, unnecessary. making Gilbertson such motions (1975). 230 N.W.2d provides that a mo- specifically Section sufficiency of the evidence is challenging tion necessary to raise on 809.30[(l)](f) addition, all under Rule evidence. In optional. This is not motions become post-conviction any after conviction can raise say that a defendant clearly requires appeal. The law Wisconsin issue properly raised on in order for an issue be preliminary at a more it has to be raised appeal, often as in a motion to proceedings, in the such point *30 law, primary change . The in as reflected dismiss .. 809.30[(l)](f) and the Judicial Council in Rule Note, not is that the errors need be Committee's if they after have been raised at reasserted conviction point proceedings. in earlier appropriate Malxngren, Richard R. Wiscon- Robert J. Martineau & (1978). Appellate Practice 172-73 sin part ¶ above- This court took issue with 76. Monje, interpretation quoted in State (1982). Discussing 974.02(2), 138, 325 N.W.2d695 court stated: 974.02(2), only is Stats.
It under sec. 1979-80 that appeal given is to take an without a authorization being first We con- postconviction motion made.... prior being rule consistent with case law strue this as appeal that for to be and hold issues considered right, postconviction motions must be made matter of challenges to the except 974.02(2).
under sec.
Id. at 153a. legislature responded In 77. 974.02(2).
Monje by revising It now reads: decision required postconviction appellant is to file a "An not prior to an if the motion in the trial court previ- grounds of the evidence or issues are postcon- ously plainly refers to This raised." subsection analysis accompanying Moreover, viction motions. modify the waiver the bill "This bill does states: timely objection requiring pre- or doctrine, motion Majority op., alleged error." See serve refining During was the time Wisconsin postconviction procedure, the United States Su- its preme States, 437 Burks v. United U.S.
Court decided (1978). jeopardy held that double case, In this the Court
precludes reviewing a second trial once a court has jury's found the evidence insufficient to sustain the guilty. verdict of year
¶ 79. The
Burks,
after
this court stated in
State,
Thiesen v.
¶ inconsistency 80. There is an obvious in this pronouncement. In view of the Burks decision, a circuit may grant court not the state a new trial when the court concludes there is insufficient evidence to convict. may permit There be times when the trial court can reopen state to the case to introduce additional evi- dence after the state has State, rested. Grover v. 61 Wis. (1973); 2d 282, 283, 212 N.W.2d 117 Wis. Stat. 972.10(3). § point However, if the case has reached the evidentiary of no return when the record is closed, "[T]he only remedy case must be dismissed. available to judgment acquittal." the court is to order a State v. Ivy, (1984). Wis. 2d 608, 350 N.W.2d622 way,
¶ 81. Put another when a defendant believes produce the state has failed to sufficient evidence to convict, the defendant should move to A dismiss. defen- dant should grounds, not move for a new trial on these either before conviction or after conviction, because a insufficiency new trial based on of the evidence would jeopardy. constitute double
¶ is The issue for us is whether defendant 82. equivalent required dismiss, an to to or make move goes in order motion, before the case to the fact-finder preserve to the issue of evidence right. as of Sykes that is 83. Justice contends 974.06
postconviction not excuse a statute does preserve the issue of evidence defendant's failure sufficiency during point trial, con- at some before support compelling There this viction. is evidence view. points made. Nonetheless, two must be judicial "waiver" is a rule of
First, because the rule opposed prohibition, inflexible administration an as disregarded appellate reasons it courts. The is often may policy in the be in the discussions for this majority opinion found concurring opinion Roggensack. The fact the waiver rule is Justice part consistently applied expectation on the breeds an applied them. it will not be defendants that some case Second, some defendants see Gomez establishing exception waiver rule. State an (Ct. App. Gomez, 507 N.W.2d378 179 Wis. 1993). interpreting decision 974.02 Gomez upon by quite imprecise it has relied defen but been for more a decade.2 dants than *32 Gomez, In State 507 N.W.2d (Ct. 1993), argued that was insuffi App. the defendant there The court him of child enticement. cient convict evidence said: directly postconviction but did not motion instead Gomez file
appealed this court. challenges of to convict him Gomez 948.07, State of a in violation sec. Stats. The enticement child In his valuable treatise on appellate prac- tice, Michael S. Heffernan writes: argues argument that Gomez waived the because he did not present before, during this issue to the trial court or after the trial. correctly argument Gomez upon asserts his is based 974.02(2) convict, of the evidence to which under sec. Stats., require prior postconviction Therefore, does not motion. preserved appeal.
the issue is
for
Gomez,
In its appeal the State said: "The appellant's challenge to the sufficiency of the evidence to rejected by convict was (19:40-41). trial court The appellant failed present any challenge to the applicability 948.07, Stats., sec. to the enticement of a child into her own bedroom." appellant's position 948.07, It Stats., is the that sec. aas apply
matter of law was not intended to to the fact situation presented by this case.... appellant presented The applica- never this bility 948.07, Stats., any point before, of sec. at or after has, consequently, trial. He properly preserve failed to this chal- lenge appellate review. properly preserve objection, appellant -To his must at least present postconviction motion, the claim in a if it was not raised 974.02(2)... earlier. Sec. . appellant's properly preserve failure to this issue of statutory construction at the trial court level is fatal to his claim appeal. brief, In reply his the defendant said: The state ... asks this court to refuse to address an issue theory.... based on some argued waiver Gomez has that his conduct, assuming alleged true, the facts were did not meet the legal just definition way of the crime saying ... That is another prove any that the by state failed to conduct Gomez that would guilty violating allow him to be found the crime defined 948.07. It argument, is a evidence plainly postconviction states that a motion the trial court is not added) necessary (Emphasis in such a case. *33 general is the on review major limitations One of for issues raised courts to consider appellate refusal 974.02(2) and . . . Sections appeal. on the first time may the evidence be provide that cases criminal appeal time on raised from for first the court. and trials to Appellate and Procedure Practice Heffernan, Michael S. - Avoiding [§ Waiver 3.3], Trial Record III. in Wisconsin (3d 2002). Raising ed. Trial Court. in the [3.4], Issues is as- Heffernan certain whether It is not 87. obligation serting no to has criminal defendant that a objection preserve an right,
during on this issue as trial in order way. read that can be his comment but scholarly precedent light In of both commentary, enforce set out and for me to it is difficult in this situation. a strict waiver rule questionable, appears Although be Gomez think with its now is to stick course for I the better interpretation a matter of perceived statute, as of the by hope policy, be clarified statute will that the with through judicial legislature rule- or this court governing Creating a making. when and how clear rules challenge of the evi- should defendant high priority, ought a to he in the trial court dence majority opinion is that the result because sandbagged by who defendants can and will be state say that a defendant explicitly not The Gomez case did objection as to evidence suffi- timely make a required to preserve issue in order to trial ciency point at some record, it into the digging deeper right appeal. Without as general appeals permitted though the court appears to suffice sufficiency of the evidence proof. challenge to the state's narrower *34 remain silent until it is too late for the court to I react. join majority opinion cannot because it has the effect turning "quicksand" urgent into solid rock. It is now prosecutors develop techniques for courts and to force hand, a defendant's so that a defendant cannot euchre making the court into an avoidable and irrevocable error. any agree ¶ 90. In event, I with the court of appeals that the defendant's conviction must be af- support firmed because the evidence was sufficient to jury's verdict. ¶ (concurring). Anyone SYKES, DIANE S. J. attempts apply who follows and the decisions of this justifiably exasperated by court will be this case. The majority opinion fundamentally misconstrues the issue appeal. really statutory interpre- on this This application tation case. The issue on this is the the common-law waiver rule to a of the argument appeal. evidence raised for the first time on Having mischaracterized the issue in case, this majority compounds analytical confusion inex- plicably refusing apply legal principles governing statutory interpretation recently clarified in State ex Court, rel. Kalal v. Circuit 58, 2004 WI 271 Wis. 2d 681 N.W.2d110.
hH
Hayes
¶ 92. The defendant Obea
was convicted of
appeal challenged
sexual assault and on
having
of the evidence without ever
raised the issue in
principle
the circuit court. "It is a fundamental
appellate
preserved
review that issues must be
at the
preserved
circuit court. Issues that are not
at the circuit
alleged
generally
court, even
constitutional errors,
will
appeal."
not be considered on
Huebner,
State v.
2000 WI
N.W.2d 727. This is
2d
10, 235 Wis.
(even though might
it
rule"
as the "waiver
denominated
rule")
precisely
the "forfeiture
because
he labeled
more
preserved
Id.,
are deemed waived."
are not
"issues that
and well-
rule is a fundamental
11. The waiver
merely
judicial administration, "not
rule
established
technicality
convenience; it is an essential
or a rule of
justice."
orderly
principle
Id.
administration
"[t]he
emphasized
reasons
have
93. We
go
common
the heart of the
law
rule
waiver
adversary system."
Caban,
State
tradition and the
(1997). The
rule
597, 604,
563 N.W.2d
objections.
objections
timely
Such
"exists to cultivate
*35
efficiency
Erickson,
promote
fairness." State v.
and
both
(1999). The
758, 766,
the waiver objec- important rule serves several waiver level allows the Raising at the trial court issues tives. in the alleged error correct or avoid trial court to It also eliminating appeal.... the need for place, first of the issue judge and the trial notice parties both gives objection... . to address opportunity and a fair Furthermore, encourages attorneys rule waiver diligently Finally, prepare for and conduct trials. ... errors, prevents attorneys "sandbagging" the rule from failing object strategic or to an error for reasons and claiming grounds later that the error is for reversal.... reasons, For all of these rule waiver is essential adversary system the efficient and fair conduct of our justice. (citations omitted).
Huebner, appellate authority ¶ 95. While courts have the overlook waiver and address the merits of an issue not procedure in court, raised the circuit "the normal criminal cases is to address waiver within the rubric Erickson, the ineffective assistance of counsel." 227 Wis. exceptional Also, 2d at 766. cases, Wis. Stat. §§ provide authority 751.06 and 752.35 for discretion- ary despite review and reversal waiver. State Schumacher, 388, 399-401, N.W.2d672 (1988). short, In rule fundamental, waiver is a firmly-established principle appellate
essential, jurisprudence necessary in Wisconsin, to both fairness justice. and the efficient administration of The law provides safeguards by reviewing remedial which courts may ignore appropriate waiver where in individual cases. *36 jettisons majority it, then, 97. How is that the "fundamental," "essential,"
rule deemed and at adversary of "heart the common law tradition and the system," categorically sufficiency all authorizes of challenges the evidence to be raised for the first time on appeal right? by as a of matter It does so a novel and subjective ultimately approach interpretation to the inapplicable approach, an statute —an moreover, that principles statutory interpretation conflicts with just Kalal, ¶¶ in 44-52. clarified Wis.
hH hH majority ¶ 98. The has concluded that Wis. Stat. 974.02(2), sufficiency § provides that of the evi- which by arguments preceded appeal on need not be dence postconviction in court, motion the circuit somehow governs question of the broader whether challenges preserved during all, must at the evidence be initially or at the close of the trial when the state rests question requires only consider- evidence. This broader majority rule, waiver but the ation of the common-law interpretation opinion question of the treats it as 974.02(2). § It is not. Wis. Stat. § only addresses Stat. 974.02 Wisconsin requirements
postconviction motions or motion —not objections at trial or the waiver rule on —and (2) "[a]n appellant specifies not at subsection postconviction required in the trial to file a motion grounds prior appeal if the are court to an previously or issues raised." statute the evidence or a motion to dismiss its face does not address whether objection of the evidence is other during required in or at the close of the evidence trial appeal. preserve for Motions to order to the issue governed by are trial criminal cases dismiss 972.10(4), generally by § more Wis. Stat. Stat. insufficiency grounds (requiring particularity), is made stated with which evidence be 972.11(1). applicable criminal cases Wis. Stat. postconviction motion statute does 100. The neglects to raise a a defendant who address whether sufficiency argument any at time *37 it; has waived the statute is silent on the circuit court may of whether of the evidence be issue Accordingly, appeal. time on raised for first 974.02(2), § rule, common-law waiver and Wis. Stat. governs appeal. the outcome of this analytical fairness, In confusion sur rounding appeals' this issue started with the court of Gomez, decision State v. 179 Wis. 507 N.W.2d (Ct. 1993). App. appeals Gomez, In the court of analysis, concluded, without that because Wis. Stat. 974.02(2) § require postconviction does not motion for challenges, challenges such preserved appeal are for even when not in the raised at circuit court trial or the close the evidence. sequitur Id. at 404. This non formed the basis for the majority appeals' case, decision in and the court this by treating perpetuates as now the mistake this issue though interpretation an it is controlled of the By postconviction statute, motion which it is not. its governs only postconvic terms, Wis. Stat. procedure. says nothing tion motion The statute about preserve arguments what must be done at trial to general matter, as a or whether arguments exempt particular evidence are from the general preserved if not at trial. rule of waiver majority para-
¶ 102. The nonetheless devotes 47 graphs freewheeling statutory unusual, to an method of 974.02(2), interpretation applied to Wis. Stat. finds eventually inconclusive, the exercise policy makes its own category choice about whether to allow this unpreserved argument to be raised for the time on first appeal. majority assiduously customary avoids legal opening principles apply articulation of the questions statutory interpretation. This would not be *38 accepted legal principles appear- if the so bad made an opinion. they in ance later But do not. majority begins Instead, a recita- with parties' proffered interpretations
tion of the (as parties' interpretations if statute controlled the analysis), and then moves into a consideration of the (this "context of the statute" an includes inconclusive Chapters of discussion 972 and 974 and the common waiver). legislative law of history next enter the realm of We
(where contradictory we discover and mislead- information) ing up majority and then take what the "policies, purposes consequences" calls the of alter- (where interpretations apparently native there are no guide principles decision-making real other than the judiciary's policy preferences). Ultimately, own in- this (at journey terpretive stage leads nowhere each we are around), good arguments told there are all so majority interpretation decides that "best" is one recognizes that that of the evidence chal- lenges types challenge are "different from other not "justifies previously allowing trial," raised which challenge of the evidence to be right despite as a matter of the fact raised not in the circuit that the was raised court." Majority op., ¶ 54. Apart reality from the fundamental statutory interpretation case, I
this is not a cannot majority's agree approach it conflicts with the because important respects accepted principles in certain from statutory interpretation in our It is found case law. certainly statutory interpretation true that our cases always consistent; it is also true that have not been opinions appeared depart recent from the some have statutory interpretation. standard rules of Neverthe- general principles prevail, less, certain well-established very recently clarified, and, as this court has general principles Kalal, clarified, reaffirmed those recognize ¶¶ I these 44-52. 271 Wis. may general application principles and therefore are by special require supplementation or additional rules problems interpretation applicable specific they general legal particular Also, because are cases. application, they may provide principles of broad statutory interpre- difficult answers to all or the most principles statutory questions. But the inter- tation pretation ig- simply in Kalal cannot be as restated nored.1
Ill A statutory purpose interpretation "[T]he ¶ 105. of may it is to determine what the statute means so that given proper, Kalal, full, and effect." 271 be its intended "judicial ¶ 633, in Kalal 2d 44. We held Wis. by policy deference to the choices enacted into law statutory interpretation legislature requires that focus primarily language of the statute. on the We assume legislature's expressed that the intent is the statu- tory language," Id. statutory interpretation "begins
¶ Thus, 106. language meaning the statute. If the with the ordinarily stop inquiry." plain, Seider statute is we ¶ O'Connell, 76, 43, 211, v. 2000 WI 236 Wis. 2d 612 Setagord, 397, 211 659; N.W.2d see also State v. Wis. 2d 1 statutory principles interpretation Neither can the Court, in State ex rel. Kalal v. Circuit articulated this court 58, 44-52, 633, 110, 2004 271 Wis. 2d. 681 N.W.2d be WI ¶¶ "spirited "vigorous or discus dismissed as mere discussions" Bradley, the court." by "part sions" Concurrence of Justice Kalal is 66, say, binding precedent. 68. Needless ¶¶
48 (1997); 406, Williams, 565 198 N.W.2d506 State v. Wis. (1996); Martin, 516, 525, 2d 544 N.W.2d406 State v. 162 (1991). Statutory 883, 893-94, 2d N.W.2d Wis. 470 900 language ordinary, accepted given common, is its and meaning, except specially-defined technical or phrases given special words or are their technical or meaning. County, definitional Bruno v.Milwaukee 2003 ¶¶ 28, 20, 656; 2d 8, 633, WI 260 Wis. 660 N.W.2d see 990.01(1). also Wis. Stat. "[Statutory language interpreted
¶ in the is part used; context which it is not in isolation but surrounding language whole; in relation of closely-related or reasonably, statutes; and to avoid absurd ¶ Kalal, 633, or unreasonable results." 271 Wis. 2d (citing Delaney, 2d 9, 13, 77, State v. 2003 WI 259 Wis. Physicians Wis., 416; 658 N.W.2d Landis Ins. Co. of ¶ 16, 893; 86, 1, 2001 WI 245 Wis. 2d 628 N.W.2d 43). Seider, 2d are read where Wis. Statutes give every possible word, effect to avoid reasonable surplusage. ¶ Martin, Kalal, 46; Wis. analysis plain, process yields "If 2d at 894. this statutory ambiguity, meaning, then is
clear there no according applied is to this statute ascertain- meaning." Bruno, ment of its statutory unambiguous, language there is no
Where *40 interpretation, of such need consult extrinsic sources legislative history. ¶ Kalal, 633, 46 271 Wis. 2d (citing ¶ Bruno, 633, 7; 260 Wis. 2d State ex rel. Cramer ¶ Schwartz, 86, 473, 18, 2000 Wis. 2d 613 v. WI 236 ¶ Martin, Seider, 211, 591; 50; Wis. 2d and N.W.2d 236 893-94). at 162 2d
49 process point ¶ in the It is at this —the unambiguous/ambiguous line of demarcation —that analysis.2 As we sometimes blurred the cases have many Kalal, "If a this statement: noted in cases contain ambiguous, reviewing court turns statute is 2 this appeared of recent have cross Some our cases analysis traditionally re analytical into a threshold mode.of ambiguous initial statutes without an determination served for Messer, 145, v. statutory ambiguity. of See Hubbard 2003 WI 676; 9, 92, v. Village 673 N.W.2d Lannon 267 Wis. 2d Contractors, 13, Inc., 150, 2003 WI 267 Wis. Woodland 158, 275; Highland Bast, 2003 WI N.W.2d Manor Assocs. 672 152, 15-19, 1, 672 also 268 Wis. 2d N.W.2d See ¶¶ 92, J., Hubbard, 44-47 concur- (Roggensack, ¶¶ ring) departure this from standard methodol- (commenting on 14, M.C., 269 ogy); Courtney App F. v. Ramiro WI (same). I do not read these cases as Wis. 2d 676 N.W.2d plain-meaning rule or an representing an abandonment of interpretation in to extrinsic sources of endorsement resort say that statutory interpretation all While it is fair to cases. they that have often incorporate interpretive inquiries certain threshold, ambiguity far fallen on the side of the traditional they way actually go in a do so does behind statutory ambiguity in or a consideration of law search of into sources, history. legislative classic extrinsic such as items of Legislative customary aid" history purposes is the "extrinsic Singer, statutory interpretation, see Norman J. Sutherland (6th 2002), § 45:14 at 109 ed. and can Statutory Construction array material, and potentially include a broad reliable event, unreliable, objective any and In the extent subjective. area, have that there was some confusion in this we clarified Kalal, govern statutory interpretation principles majority with opinion Wis. 2d 44-52. The conflicts ¶¶ analysis. majority important aspects Kalal in some its history engages wide-ranging legislative in a examination of competing "purposes policy-based evaluation of consequences" interpretations, of alternative where the statute This, my judgment, plain language apply. its does not *41 history, scope, purpose context and of the statute." Cramer, ¶86, 18, 473, 2000 236 WI Wis. 613 N.W.2d formulation, said, 591. This we "is somewhat mislead ing: scope, purpose perfectly context, and are relevant meaning plain interpretation unambiguous to a of an long scope, purpose as context, statute are from ascertainable the text and structure of the statute legislative itself, sources, rather than extrinsic such as history." Kalal, 271 633, Wis. 2d any In we in event, reaffirmed Kalal it generally remains true that Wisconsin courts do not interpretation, consult extrinsic sources such as legislative history, ambiguous. unless the statute is "Traditionally, Kalal, ¶¶ 633, 271 2dWis. 50-51. 'resort history legislative appropriate is not in the absence finding ambiguity.'" Seider, a 236 Wis. 2d 50 (quoting Sample, 2d 487, 495-96, State v. 215 Wis. 573 (1998) (quoting Setagord, turn, N.W.2d State v. 406)). legislative history 2d at While will verify plain sometimes be consulted to confirm or meaning interpretation, Seider, general legislative history— ¶¶ 51-52, matter, as a unquestionably statutory an "extrinsic source" for in- terpretation purposes except re- consulted —is ambiguity Kalal, solve an the statute. 2dWis. language ambigu- ¶¶ 50-51. If the the statute light textually ous when considered in even its scope, purpose, context, ascertainable then the primary analysis intrinsic has been exhausted and secondary interpretation extrinsic sources of become relevant. statutory
represents departure generally accepted from our interpretation jurisprudence, clearly and is inconsistent with See, 12-20, Kalal. ¶¶ infra. *42 principles, Kalal, are
¶ we said in 110. These fundamentally important Kalal, of to the rule law. explain majority its does not Wis. apply or mention them here. to even refusal
BIll go no Here, need further than the text we 974.02(2) § that it does of apply, Stat. to discover the Nonetheless, I have discussed above. unnecessary, majority upon lengthy, and a embarks ultimately conflicting legisla- fruitless consideration of position history. Majority op., paper ¶¶ A 24-38. tive Vetzner of the State Defender's Charles Bennett Public figures prominently; from this flows the office "seemingly majority's supposition the statute that was codify position designed" the to Vetzner's —also challenges of the evidence defendant's —that op., Majority out, cannot be 38. As it turns waived. Legislative Analysis however, the Reference Bureau’s - supports opposite the conclusion: Wis. Stat. modify, § nothing with, has to do and does not Majority op., ¶ 35. the common-law waiver doctrine. potential The whole exercise illustrates one unnecessary forays legislative history: pitfalls of into sought the risk that the views of those who to influence legislative process might straightforward, skew a reading statutory plain-meaning itself. text majority eventually any ¶ 112. In con- event, the legislative history inconclusive, and cludes that the is lengthy equally an ventures into discussion what analytically "purposes consequences" or labeled "policies, consequences" purposes in- of alternative 974.02(2). Majority op., terpretations of Wis. Stat. statutory ¶¶ tell, I this our 39-54. As far as can is new to majority interpretation jurisprudence, no and the cites authority "purposes for it. This alternative and conse- quences" approach statutory interpretation appears to entirely policy consist focusing discussion, in this instance analysis
on an of the common-law waiver doc- justifications. judicial trine If, and its aas matter policy, majority has decided carve out a common- exception law common-law rule of waiver for all challenges, say so, it should attempt disguise analysis interpre- and not as an 974.02(2). majority tation is, Wis. Stat. As it appears endorsing concept statutory to he interpretation judicial policy judgment based involves *43 upon weighing balancing competing "purposes a and of consequences" interpretations. and of alternative This judiciary's subjec- leaves room for the substitution of the policy legislature, phenom- tive choices for of those a plain-meaning approach text-based, enon that a to statu- tory interpretation guard against. to seeks majority ultimately
¶ Indeed, concludes "policies, purposes analysis consequences" that its and day,leading interpretation an carries to of Wis. Stat. 974.02(2) sufficiency that treats of the evidence chal- lenges types as "different from other previously during Majority op., raised trial." 54. That majority interprets is, the Wis. Stat.
creating categorical exception a to the common-law sufficiency waiver rule for all of the evidence chal- lenges, though pertains even the statute its terms only postconviction requirements to motion and has nothing to do with the common-law waiver rule at all. represents judicial policy statutory This decision, not interpretation; good policy, if even were it it is bad statutory interpretation precedent.
IV good I not believe it to be Moreover, do policy. refuse There is no sound reason to common-law apply evidence rule to of the the wavier challenges. challenges Requiring preserved in the circuit court to be the evidence economy judicial promotes notice, fairness, and trial preservation objectives Automatic of the waiver rule. parties objection deprives the or motion at trial without opportunity correct the of the the circuit court proliferation prior problem in a and will result categori- arguments appellate A in the courts. these statutory exception needed, is not as there is cal reviewing authority that allows a court case law exceptional ignore a waiver and reach the merits injustices. necessary In to avoid individual cases where argument by way any can event, waived be raised claim. of counsel an ineffective assistance weighs in another factor that 115. There is applying rule to of the the waiver favor challenges: as Justice Prosser discusses at evidence jeopardy length greater concurrence, bars his double insufficiency is based on retrial where reversal Ivy, 591, 608, 350 N.W.2d evidence. State v. (1984). objection sufficiency of the A evidence *44 or at the of in the circuit court trial close raised sufficiency potentially cured; can be the evidence challenge for the first time raised evidence (whether otherwise) strategically will, or if suc recognize to retrial. I that cessful, result bar strategically generally will not want to defendants arguments sufficiency evidence until "save"their "sandbagging" appeal, with and therefore risk arguments sufficiency is of the evidence low. But part promote to of all exists in resolution waiver rule potential arguments court, in the circuit and a rule preservation objection automatic without or motion at purpose. trial frustrates that argue
¶ 116. The defendant did not ineffective §§ assistance of counsel or invoke Wis. Stat. 751.06 or getting 752.35 as a means of to the merits of his argument despite having of the evidence any upon it. he waived Nor did offer basis which the authority ignore court should exercise inherent its to categorical exception I waiver. would not create a to the waiver rule at common law to allow challenges evidence appeal to be made for the first time on § right. as a matter of Wisconsin Stat.
pertains only postconviction requirements to motion apply. Accordingly, respectfully therefore does not I con- cur.
¶ 117. I am authorized to state that JON Justice joins concurring opinion; E WILCOX this Justice PA- joins D. II, A, TIENCE ROGGENSACK sections III I, III B. {concur- ROGGENSACK, 118. PATIENCE D. J. ring). agree IWhile with the conclusions reached majority opinion, Hayes required that was not challenge raise a
during trial and that the evidence was sufficient to support jury's separately verdict, I I write because right an conclude that accused's the suffi- ciency grounded the evidence is not Stat. 974.02(2)1 subject nor it waiver if not at raised requirement Rather, trial. it is bottomed in the prove guilt beyond State an must accused's a reasonable I joined Sykes's regard As have Justice concurrence in 974.04(2), the interpretation of Wis. Stat. I will not address issue further. *45 of that burden at doubt, and that to relieve the State any process point fundamental in undermines the presumed principle a defendant is constitutional guilty by proves him or her innocent until the State Virginia, requisite degree proof. See Jackson (1979). 443 U.S. Winship, In re In the landmark case of 119. (1970), Supreme ex the United States Court
U.S. 358 plained Fourteenth that the Due Process Clause of the protects defendant in a criminal case Amendment a beyond proof against a reasonable conviction unless charged has to the crime been submitted doubt Accordingly, at when a claim fact-finder. Id. examined raised, insufficient evidence is the evidence is reverse State, in and we the view most favorable jury only no from a if the record contains evidence which beyond finding guilt a reasonable doubt. could reach Co., Elec. Power 2003 WI See v. Wisconsin Hoffman Appellate ¶ 9, reversal 664 N.W.2d evidence means that State's based insufficient lacking proof been case was that it should not have so society jury. case, In has no interest sent to the such upholding I Therefore, the conviction. conclude that the reaching applying choice waiver and better between on the is the issue of merits Accordingly, respectfully I concur. latter one.