This article appeared in "The Campbell Law Observer," Vol. 23, No. 7, September 2002.
In 1972 I became a research assistant to the Honorable Earl W. Vaughn at the North Carolina Court of Appeals. My solo practice is limited now to presenting defense appeals in criminal cases to our appellate courts. After 30 years of reading trial transcripts, I have a few suggestions to share with criminal trial lawyers. I hope to assist in better protecting the rights of criminal defendants.
For many trial lawyers, the conventional wisdom has been to decide before trial if you are going to try to win at trial or attempt to win on appeal after conviction. To win on appeal you must state your objections and argue strongly at trial, creating a record for the appellate courts. But, the theory goes, by objecting, moving to strike, etc., the trial lawyer calls undue attention of the jury to potentially damaging evidence or rulings. The lawyer reasons that if such activity is minimized, the jury may ignore or forget it and the chances of winning a verdict increase.
In my experience, this is not a mandatory "either or" choice.
Trial lawyers who discuss their cases with juries after verdict have discovered, more often than not, that objections and motions by trial lawyers impress a jury with the seriousness of the procedure and zealousness of the advocate. They seem to have about the same impact on the verdict as does not calling attention to procedures.
Failure to preserve a full and clear trial record, for whatever motivation, assures failure on appeal, however.
The bar review course I took in 1972 made no mention of appellate procedure or techniques. By 1985 the Practical Skills Course offered by the NC Bar Foundation included a 210-page booklet authored by M. Gordon Widenhouse, Jr., titled "Appeals." In it, Widenhouse, then an Assistant Appellate Defender, urged lawyers to "think appeal."
By that phrase, one was encouraged to prepare and try the case as if there would be an appeal.
Widenhouse's advice is still excellent. Even if they plan to never perfect an appeal, criminal defense trial lawyers need to know a few very basics concepts about appellate law.
Reading trial transcripts has demonstrated to me that too many lawyers are waiving their clients' appellate rights. The objections lodged at trial are not specific enough to assist in appellate review.
In a recent transcript, the defense lawyer objected, "for the record," for many evidentiary offerings from the State. Finally, a potentially appealable issue was presented and the defense lawyer said, "Objection, your Honor. Seriously!"
The ruling? "Overruled. Seriously." The issue had been waived by trial counsel.
Pretrial review of Rule 10, the Rules of Appellate Procedure, might have saved the day. This rule is at the heart of most trial-lawyer errors.
The defense trial lawyer's job is to present the objections properly and get rulings into the record to preserve the opportunity for appellate review. That directive comes from Appellate Rule 10(b):
In order to present a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion (emphasis added).
App. R. 10(b).
A timely objection is one that comes before the damaging answer from the State's witness is heard by the jury.
A timely and proper objection includes a citation to the rule of evidence that supports your objection. "Objection, your Honor. Seriously!" doesn't make the grade. But "Objection, your Honor, a violation of Rule 404(b)" has a better chance of preserving your client's rights.
Supported objections offer the trial judge an opportunity to consider your point of view and make an informed ruling. Such objections state the specific grounds for the ruling you want, as Rule 10 directs.
Pretrial preparation will permit use of the proper rule to support the objection.
An example of a timely motion is the motion to strike the offending answer from the witness as soon as that answer comes in. Often I have seen trial transcripts where the objection was made, overruled, the witness testified and then — silence from defense counsel. The trial moved on.
Without the motion to strike the potentially offending evidence, the issue will be waived.
It is as if the defense lawyer has agreed with the ruling of the trial judge after hearing the actual answer.
Such a conclusion by the appellate court is not unreasonable under those circumstances.
Be sure to move to strike the answer when your objection is overruled.
Even the best of trial arguments about jury instructions often will waive the issue on appeal if the lawyer does not object to the charge before the jury retires. App Rule 10(c) covers the point.
A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection... (emphasis added).
App. R. 10(c).
Once again, tell the trial court what your objection is and the grounds for it. This must done after the instructions are presented to the jury, even if you made your good argument for the record during the charge conference.
If the jury later has a question and additional instructions are provided, be sure to renew all your objections to the instructions.
No more than a handful of trial transcripts I have read show the trial lawyer specifically cited GS 15A-1227. Get into the habit or your client may be stuck!
Rule 10(b)(3) provides that a defendant who fails to make a motion to dismiss at the close of all the evidence may not attack on appeal the sufficiency of the evidence at trial. State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995).
Where the defendant moved to dismiss the charge at the close of the State's case for insufficient evidence and the trial court denied the motion, appellate review was waived when the defendant did not renew his motion to dismiss at the close of all the evidence. State v. Hinnant, 131 N.C. App. 591, 596-597, 508 S.E.2d 537 (1998).
In pertinent part, the statute reads:
GS 15A-1227. Motion for dismissal.
(a) A motion for dismissal for insufficiency of the evidence to sustain a conviction may be made at the following times: (1) Upon close of the State's evidence. (2) Upon close of all the evidence. (3) After return of a verdict of guilty and before entry of judgment. (4) After discharge of the jury without a verdict and before the end of the session.
(b) Failure to make the motion at the close of the State's evidence or after all the evidence is not a bar to making the motion at a later time as provided in subsection (a).
(c) The judge must rule on a motion to dismiss for insufficiency of the evidence before the trial may proceed.
After presenting a written motion in limine, having it heard and denied (and after making certain that a written order, with findings and conclusions, has been entered and is in the record), still make the objections at the trial.
When the trial judge tells you that you may have a continuing or running objection to that line of inquiry, politely inform the judge that the appellate courts will not allow the issue to be raised on appeal unless you actually make each objection.
North Carolina appellate courts have consistently held that rulings on motions in limine are not appealable. See State v. Hayes, 350 NC 79 (1999).
Our Supreme Court wrote: "This Court has consistently held that '[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial' (citations omitted). Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and 'thus an objection to an order granting or denying the motion "is insufficient to preserve for appeal the question of the admissibility of the evidence"' (citations omitted)." Hayes, 350 N.C. at 80, 511 S.E.2d at 303.
Also, don't forget to move to strike the evidence if your objection has been overruled!
My intention has really been to make my job as an appellate attorney easier. If criminal trial lawyers review just the few rules mentioned here and use them at trial, I may never have to blush during appellate oral argument again!
In closing, I echo the words of the appellate judge as he handed down his ruling: "Of course, this is only an opinion."
[Material for this article was extracted from a CLE of the same title presented by Hall in July, 2002, to the Wake County Academy of Criminal Trial Lawyers.]
Earning his J.D. in 1972 from UNC, Hall has been: Assistant District Attorney in Wake County; the first Director of the Pre-Hearing Research and Screening Staff at the Court of Appeals; the first Special Counsel for Indigent Patients at Dorothea Dix Hospital; the first Marshall and Assistant Clerk for the Court of Appeals; and the first Chairman of the Tenth Judicial District Grievance Committee. Jack is a Visiting Lecturer in the Communication Department at NCSU.