State v. McAdams

Decision Date24 July 1991
Docket NumberNo. 89-423,89-423
Citation134 N.H. 445,594 A.2d 1273
PartiesThe STATE of New Hampshire v. John Stephen McADAMS
CourtNew Hampshire Supreme Court

John P. Arnold, Atty. Gen. (Peter G. Beeson, Sr. Asst. Atty. Gen., on the brief, and Cynthia White, Atty., orally), for State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, on brief and orally, for defendant.

THAYER, Justice.

The defendant, Stephen McAdams, was tried before a jury in the Superior Court (Smith, J.) on charges of arson and escape. He was acquitted on the arson charge and convicted on the escape charge. The defendant failed at trial to challenge, either by an appropriate motion or by a contemporaneous objection, the sufficiency of the evidence on the escape charge, but he argues that he should be entitled to raise the issue for the first time on direct appeal. The defendant, assuming a holding in his favor on the preservation issue, then asserts that no rational trier of fact could have found beyond a reasonable doubt that he had a "conscious object" to escape. We hold that because the defendant failed to raise the insufficiency of the evidence claim at trial, the issue is not procedurally preserved for appellate review and thus is not properly before this court. Accordingly, we affirm the conviction.

In support of his position on appeal, the defendant argues, first, that the contemporaneous objection rule, N.H.R.Ev. 103(b)(1), is not applicable to a sufficiency of the evidence claim because the rule applies only to the admission or exclusion of evidence. This argument ignores the general procedural requirement that all issues be presented to the trial court to adequately preserve them for appellate review. See State v. Johnson, 130 N.H. 578, 587, 547 A.2d 213, 218 (1988) (legal sufficiency of charge not properly preserved for appeal because defendant failed to object at trial); State v. Stearns, 130 N.H. 475, 486, 547 A.2d 672, 678 (1988) (defendant's contention that police misrepresented statements in affidavit not raised before trial court and therefore not preserved for appeal). This court has consistently held that we "will not consider issues raised on appeal that were not presented in the lower court." State v. LaLiberte, 124 N.H. 621, 621, 474 A.2d 1025, 1025 (1984); see State v. Menard, 133 N.H. 708, ----, 584 A.2d 752, 754 (1990); State v. Cassell, 129 N.H. 22, 24, 523 A.2d 40, 41 (1986). This rule, "grounded in common sense and judicial economy,"Johnson supra, gives the trial court an opportunity to "consider alleged errors and to take remedial measures when necessary," State v. Kelly, 120 N.H. 904, 905, 424 A.2d 820, 821 (1980), including, in its discretion, allowing a party to reopen evidence, State v. Petkus, 110 N.H. 394, 398, 269 A.2d 123, 125 (1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1522, 28 L.Ed.2d 867 (1971); State v. Comparone, 110 N.H. 398, 399, 269 A.2d 131, 132 (1970).

In the case before us, the policy of conserving judicial resources is served by allowing the trial court to direct a verdict before submission of the case to the jury. Further, this rule of reviewing only those issues preserved ensures that this court serve its proper function as an appellate court. See State v. Nadeau, 126 N.H. 120, 125, 489 A.2d 623, 626 (1985). To allow a direct appeal of a sufficiency claim without first providing the trial court the opportunity to rule on a motion to dismiss or other appropriate motion would place this court in a position of exercising its original jurisdiction. See State v. Todd, 264 S.C. 136, 139, 213 S.E.2d 99, 100 (1975); R. McNamara, 2 New Hampshire Practice, Criminal Practice and Procedure § 954, at 148 (1980) ("Supreme Court's original jurisdiction will be exercised sparingly, and only in exceptional cases").

Second, the defendant argues that this court's decision in State v. Fennell is illustrative of why sufficiency of the evidence questions should be permitted to be raised on direct appeal for the first time. In State v. Fennell, 128 N.H. 383, 513 A.2d 363 (1986), rev'd in part per curiam, 133 N.H. 402, 578 A.2d 329 (1990) ("Fennell I "), the defendant appealed to this court, challenging the sufficiency of the evidence concerning one of four charges against him. The defendant in Fennell I, however, failed to preserve at trial the issue of the sufficiency of the evidence, and this court refused to address that issue. Id. at 384, 513 A.2d at 364. The defendant then filed a motion to vacate the convictions based on ineffective assistance of counsel for failure to move to dismiss one of the charges for insufficient evidence. The trial court denied the motion and an appeal was taken. State v. Fennell, 133 N.H. 402, 578 A.2d 329 ("Fennell II "). This court vacated as to one conviction, finding that the defendant was prejudiced by trial counsel's failure to make a motion to dismiss on insufficiency grounds. Id. at 409, 578 A.2d at 333.

The defendant in the case before us suggests that valuable judicial resources were expended on Fennell I and Fennell II which could have been saved by addressing the sufficiency of the evidence claim on direct appeal, rather than in the context of a collateral attack based on ineffective assistance of counsel. The defendant asserts that because this court in Fennell II applied the same sufficiency of the evidence standard in assessing the ineffective assistance of counsel claim as it would have applied on direct appeal, Fennell II could have been avoided. We disagree.

Although the court in Fennell II addressed the sufficiency of the evidence as part of the defendant's ineffective assistance of counsel claim, a defendant raising sufficiency of the evidence on collateral review is exposed to a different legal standard than a defendant who properly preserves the issue for direct appeal. In a review of a conviction based upon the ineffective assistance of counsel, predicated on a failure to make a motion to dismiss because of insufficient evidence, the claim is reviewed on appeal under the Strickland v. Washington dual inquiry of whether counsel's performance was deficient, and whether the defendant was prejudiced by that performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); State v. Faragi, 127 N.H. 1, 5, 498 A.2d 723, 726 (1985). If we were to review on direct appeal issues not properly preserved, issues more appropriately raised in the context of a collateral attack would receive the benefit of a different standard on direct appeal. We decline to merge the direct and collateral avenues of review.

Under our current rule, trial counsel has an affirmative duty to raise meritorious issues below. 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 need 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] advantage [to] the unprepared trial lawyer who [would look] to the appellate court to compensate for his trial omissions."

Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 259, 322 A.2d 114, 116-17 (1974). "Errors discovered by combining the record after trial and never properly presented to the trial judge should not be utilized to set aside a verdict." State v. Cass, 121 N.H. 81, 83, 427 A.2d 1, 3 (1981).

In this case, because trial counsel raised a sufficiency of the evidence claim regarding the arson charge, but not the escape charge, it could appear that such a motion on the latter charge was rejected by counsel as not meritorious. If so, it would be a waste of judicial resources to adopt a rule requiring this court to hear on appeal claims which would merely be dismissed as frivolous. If a motion to dismiss based on insufficient evidence should have been raised at the trial level by defendant's counsel, the defendant has recourse through a claim of ineffective assistance of counsel.

Finally, the defendant argues, in the alternative, that this court should permit him to raise the sufficiency question on direct appeal under a plain error standard. We declined to adopt such a standard in State v. Fennell, 128 N.H. at 384, 513 A.2d at 364, for the very type of error alleged by the defendant here, and we affirm that holding. See State v. Johnson, 130 N.H. at 587, 547 A.2d at 218 (in New Hampshire, unlike under the federal plain error rule, objections not raised at trial are waived).

Because we hold that the defendant's appeal is procedurally barred, it is not necessary to reach his argument that the evidence in this case was insufficient to convict.

Affirmed.

BATCHELDER and JOHNSON, JJ., concurred specially; the others concurred.

BATCHELDER and JOHNSON, JJ., concurring specially: We would adopt a plain error standard to address claims of insufficient evidence raised for the first time on appeal, and therefore we concur in the result only.

New Hampshire is one of only thirteen jurisdictions that have not yet adopted some form of the plain error rule, which allows an appellate court to reverse a decision for "plain error" or "manifest injustice," even where the error was not brought to the attention of the trial court. See Gerbige v. State, 571 So.2d 401, 401 (Ala.Crim.App.1990); Aaron v. State, 300 Ark. 13, 14-15, 775 S.W.2d 894, 895 (1989...

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