Defendant evaded arrest driving a motorcycle at speeds of more than 140 mph. His defense is that he never knew he was being pursued by police (neither saw the red lights nor heard the siren). State offered to prove Defendant engaged in similar conduct on another occasion (including fact that on both occasions there was methamphetamine being transported), but Defendant objected.

On appeal Defendant challenges sufficiency of the evidence arguing there was no evidence he knew there was a vehicle behind him or that the officer was attempting to arrest him. It occurs to me that where a defendant improperly excludes some of the State's evidence, he cannot then challenge the sufficiency of the evidence. At a minimum, the excluded evidence should be considered by the appellate court. Anyone know of any authority to support (or shoot down) those thoughts? My theory is pretty close to Bryant, 135 S.W.3d at 137 (Chief Justice Gray, dissenting) ( a defendant who gets what he wants shouldn't be heard to complain later).

[This message was edited by Martin Peterson on 08-19-08 at .]

I guess an argument could be made that a re-trial is permitted when the the insufficiency is caused by an error of the trial court. Duffel v. Dutton, 785 F.2d 131, 133-34 (6th Cir. 1986) (double jeopardy clause did not prevent second trial of habitual offender after sentence vacated on appeal for insufficiency of evidence when trial judge made it impossible for state to present sufficient evidence to jury). But see United States v. Ustica, 847 F.2d 42, 46-48 (2d Cir. 1988) (retrial barred when conviction for murder set aside for insufficient evidence, even when failure of proof is result of trial court's erroneous interpretation of statute); Saylor v. Cornelius, 845 F.2d 1401, 1404 (6th Cir. 1988) (retrial barred when trial court and prosecution erred in failing to give jury correct instructions, causing defendant to be charged and convicted of incorrect offense); Webster v. Duckworth, 767 F.2d 1206, 1212-13 (7th Cir. 1985) (retrial barred after reversal of conviction for insufficiency of evidence, whether or not caused by erroneous trial court ruling prejudicing only prosecution), cert. denied, 475 U.S. 1032 (1986).

From 77 GEOLJ 878

I have done some more research. My argument does seem to be contrary to this statement: "We must review the factual sufficiency of the evidence from the same perspective as did the jurors and, therefore, cannot consider materials that were not admitted at trial." Kemmerer, 113 S.W.3d at 515. But that case involved a defense attempt to use properly excluded evidence to challenge sufficiency. The issue was answered directly, however, in Ganesan, 45 S.W.3d at 203-4. I remain unconvinced that a defendant can suffer no consequence from improperly excluding evidence. I cited Jones, 119 S.W.3d at 784 and Arroyo, 117 S.W.3d at 798.

[This message was edited by Martin Peterson on 08-21-08 at .]

I suppose the argument would be more of a waiver -- the only reason the evidence wasn't before the jury was because of the defendant's actions. But sufficiency is supposed to be "did the jury reach a rational result, given the evidence in front of it?" I'm not comfortable with bringing in additional evidence that the jury never saw to decide if they reached a rational decision. It seems that we argue enough against the defendant doing this; I don't like trying to do it ourselves.

It almost gets to be an estoppel argument, and it may be a hard sell to say that a defendant is estopped from challenging sufficiency.