Life Preservers On The Titanic

Issues Not Properly Preserved For Appellate Review

By Beth Brooks Scherer and Allegra Collins

First-Class Error Preservation

Errors Preserved Under Appellate Rule 10(a)

Appellate Rule 10(a)

“To preserve an issue 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. Any such issue that was properly preserved for review … may be made the basis of an issue presented on appeal.”

Basic Components Of Error Preservation Under Appellate Rule 10

To preserve an issue for appellate review, a party generally must: • Lodge a timely request, objection, or motion,

• State specific grounds for the objection, request, or motion, and

• Obtain a ruling from the trial tribunal (preferably in writing).

Second-Class Error Preservation

Life Boats On The Titanic:

Error Preservation Exceptions

Subject Matter Jurisdiction

• So fundamental that preserved for appellate review even when not raised in the trial tribunal or by the appellate briefs

• Examples: • Lower court was not authorized by statute to decide the case

• Order was entered out of term or out of session without the consent of the parties

• Criminal indictment is facially invalid or fatally defective

• One trial judge effectively overrode the decision of a prior trial judge

Apparent From The Context (Exception I)

• A party must state “specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C. R. App. P. 10(a)(1)

• Potential remedy for failure to state specific grounds

• Highly fact-specific inquiry

General Versus Specific Objection

• Default Rule: General Objections Do Not Preserve Issue For Appellate Review.

• General objection does not state why evidence is incompetent, irrelevant, or immaterial.

• Exception I: Not Admissible on Any Other Grounds : General objection will preserve an issue for appellate review only when there was “no purpose” whatsoever for which the evidence could have been admissible.

• Exception II: Apparent from the Context : General objection will preserve an issue for appellate review if the “specific grounds” for the objection were “apparent from the context.”

Failure To Make Offers Of Proof

• General Rule: To preserve error relating to the exclusion of evidence at trial, a party must attempt to:

• Introduce the evidence at trial

• Place the evidence into the record

• Apparent from Context (Exception III): Significance of the excluded testimony is “obvious from the record” or “apparent from the context in which the questions were asked.”

No Findings Of Fact And Conclusions Of Law

• Civil Rule 52(a)(1): Trial court must do the following in writing: • (1) find the facts on all issues of fact joined on the pleadings

• (2) declare the conclusions of law arising on the facts found; and

• (3) enter judgment accordingly

• Appellate courts sometimes treat a trial court’s failure to enter required findings and conclusions as required by Civil Rule 52(a)(1) as an issue preserved for appellate review even when no objection

Issues Preserved By Rule Or Law Without Objection

Any issue “that was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, including, but not limited to, whether the judgment is supported by the verdict or by the findings of fact and conclusions of law, whether the court had jurisdiction over the subject matter, and whether a criminal charge is sufficient in law, may be made the basis of an issue presented on appeal.” N.C. R. App. P. 10(a)(1) (emphasis added)

Preserved By Rule Or Law

• Do the Appellate Rules permit the General Assembly to enact a “rule or law” that automatically preserve errors for appellate review?

• Yes, No, Maybe?

Preserved By Rule Or Law: Duke Power

• N.C. R. Civ. P. 46(a)(1) (Continuing/Line Objections): “[W]hen there is objection to the admission of evidence involving a specified line of questioning, it shall be deemed that a like objection has been taken to any subsequent admission of evidence involving the same line of questioning.”

• See also N.C. Gen. Stat. § 15A-1446(d)(10).

• Duke Power Co. v. Winebarger, 300 N.C. 57, 265 S.E.2d 227 (1980)

Preserved By Rule Or Law Oglesby

• N.C. R. Evid. 103(a) (Pretrial Definitive Rulings): “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”

• State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007)

Preserved By Rule Or Law Mumford

• N.C. Gen. Stat. § 15A-1446(d)(18) (Unauthorized Sentence): Preserves without objection arguments that “sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.”

• State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010)

Preserved By Rule Or Law Meadows

• Court of Appeals: Appellate Rule 10(a)(1) applies fully to sentencing errors, notwithstanding Court of Appeals prior interpretations of State v. Canady (N.C. 1991)

• State v. Mumford

• N.C. Gen. Stat. § 15A-1446(d)(18)

• “Rule or Law” exception

• In re Civil Penalty

• Discretionary Review

Administrative Law Constitutionality Of Statute

• General Rule: Constitutional Challenges Must be Preserved

• Exception: In direct appeals from administrative tribunals, constitutional challenges to a statute “may be raised for the first time in the Appellate Division as it is the first destination for the dispute in the General Court of Justice.”

• Alternative: “May” bring a separate declaratory judgment action to have the constitutionality of an administrative statute determined by a “court”

Statutory Mandate Exception Generally

• “[W]hen a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court’s action” may be preserved notwithstanding defendant’s failure to object at trial.

• State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985)

Statutory Mandate Exception: Requirements and Limitations

• Trial court must be required by a statute to take (or refrain from taking) some specific action

• When the statute uses permissive (rather than mandatory) language, the statutory-mandate exception does not apply

• Probably Contains Some “Fundamental Right” Component • More likely to be applied in death penalty and criminal appeals

Statutory Mandate Examples (Every Judge Should Know This)

• Failing to sua sponte exclude evidence specifically rendered incompetent by statute

• Statute must “renders certain types of evidence inadmissible for any purpose whatsoever.”

• If competent for limited purpose, exception will not apply

• Example: Evidence relating to spouse’s failure to testify-N.C. Gen. Stat. § 8-57

• Trial court’s failure to exercise statutory discretion based on a mistaken belief that it lacked authority to do so

Third-Class Error Preservation Error Preservation Exceptions In Criminal Cases

Statutory Mandate Examples (Right to Representation)

• Failing to appoint second counsel in a death penalty case

• Failing to make an independent determination that criminal defendant’s waiver of right to counsel was knowing and voluntary

• Appellate courts may have implicitly recognized a statutory-mandate exception when a trial court fails to appoint a guardian ad litem to protect the interest of a minor in certain Chapter 7B proceedings. However, the courts have reached these unpreserved errors not as of right, but in the exercise of the courts’ discretion under Appellate Rule 2, leaving it unresolved whether the statutory-mandate exception applies as well.

Statutory Mandate Examples (Fairness At Trial)

• A trial judge’s impermissible expression of his or her opinion before the jury

• Failing to correct gross, flagrant, and prejudicial misconduct of counsel that deprives defendant of a fair trial

Whether A Criminal Charge Is Sufficient In Law

• Appellate Rule 10(a)(1), “whether a criminal charge is sufficient in law” is an error automatically preserved as a matter of law without objection.

• jurisdictional error that may be raised for the first time on appeal

• Fatally Defective Indictments: • wholly fails to charge some offense or fails to state some essential and

necessary element of the offense of which the defendant is found guilty • charge defendant with acts that were not criminal offenses at the time

• Warning: Fatal variances, which involve differences between the indictment and the evidence presented at trial, may not be raised for the first time on appeal.

Motion To Dismiss For Insufficient Evidence

• Governed by Appellate Rule 10(a)(3) not 10(a)(1)

• “In a criminal case, a defendant may not make insufficiency of the evidence to prove the crime charged the basis of an issue presented on appeal unless a motion to dismiss the action, or for judgment as in case of nonsuit, is made at trial. If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, defendant’s motion for dismissal or judgment in case of nonsuit made at the close of State’s evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.”

General Motions To Dismiss for Insufficient Evidence

• Appellate Rule 10(a)(3) does not explicitly require that a criminal defendant identify the specific elements of the offenses being challenged by the motion to dismiss

• General Rule: Because a “general motion to dismiss requires the trial court to consider the sufficiency of the evidence on all elements of the challenged offenses,” challenges as to all elements of the offense are preserved for appellate review.

Specific Motion To Dismiss For Insufficient Evidence

• Warning: When a motion to dismiss argues specific elements of the offense to the trial court, the defendant’s specificity can sometimes foreclose the right to challenge on appeal sufficiency of evidence to support the elements of the claim not specifically discussed by trial counsel

Obtaining a Ruling Exception

• A trial court’s failure to rule on a motion to dismiss before the case is submitted to the jury is preserved for appellate review even when the defendant fails to object at trial.

Fundamental Constitutional Rights

• General Rules: • Appellate courts “avoid constitutional questions, even if properly

presented, where a case may be resolved on other grounds.” • Appellate courts will not consider constitutional questions “not raised or

considered in the court below,” even under plain error review.

• Fundamental Constitutional Rights Exception: • A few constitutional rights are so fundamental that they are not

waivable, and thus, they are considered to be preserved as a matter of law.

• Courts “indulge every reasonable presumption against a waiver” of “fundamental constitutional rights” by a criminal defendant.

Fundamental Constitutional Rights Examples

• Constitutional right to a unanimous verdict of 12 jurors, including that all jurors be present when the trial court relays information to jurors;

• Presence of an alternate juror in the jury room during deliberations;

• Criminal defendant’s right to a valid bill of indictment;

• Criminal defendant’s right to be present at every critical stage of the trial in a capital case; and

• Submission of mitigating circumstances to the jury in a capital case.

• But a defendant may waive a constitutional right relating to a mere matter of practice and procedure.

Post-Trial Sentencing Errors

• Supreme Court has suggested that Appellate Rule 10 “is directed to matters which occur at trial,” and not post-trial sentencing hearings. State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991).

• Sentencing Errors Automatically Preserved: Based on Canady, numerous Court of Appeals panels have concluded that the error-preservation requirements of Appellate Rule 10 do not apply to sentencing errors.

• Sentencing Errors Not Automatically Preserved: State v. Meadows, -- N.C. App. --, 806 S.E.2d 682, 690–95 (2017)

• Error-preservation requirements of Appellate Rule 10 do apply to sentencing errors—including constitutional errors.

• Explicitly rejecting the prior panels’ decisions on this point. • Did not address section 15A-1446(d)(18) and State v. Mumford which permit appellate

review of certain types of sentencing errors even where there was no objection at trial. • PDR Granted May 9, 2018

Plain Error Review • Only available in criminal cases and normally limited to errors involving

instructional and evidentiary error.

• Supreme Court has repeatedly declined to extend plain error review to civil cases.

• Fundamental Error Occurring at Trial

• Warning: Unpreserved error will be afforded plain error review only when the judicial action questioned is specifically and distinctly contended to amount to plain error.

• “A bare ‘assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule.’”

• May not be raised for the first time in the reply brief.

Stowaways Hiding In Steerage

In Freezing Waters, But Clinging

To Floating Wreckage

Appellate Rule 2

• An appellate court has inherent authority to suspend its own rules and requirements “to consider, in exceptional circumstances, significant issues of importance in the public interest, or to prevent injustice that appears manifest to the court.”

• Invoked cautiously, and only in exceptional circumstances.

• Appellate Rule 2 relief in prior, similar cases “cannot create an automatic right to review”

• State v. Campbell, 369 N.C. 599, 799 S.E.2d 600 (2017).

Appellate Rule 2 Relief Factors That Can Increase Likelihood

• Issues of importance to the public interest

• Life, liberty, or other fundamental rights are at stake.

• When unclear whether error preserved, including when a party complied with the spirit (although not the letter) of Appellate Rule 10.

• Unresolved or a recently announced error-preservation principle

• Judicial Economy: Issues are inextricably intertwined, but only some were properly preserved

Appellate Rule 2 Relief Factors That Can Decrease Likelihood

• Issue dependent on undeveloped factual record

• Invited error

• Constitutional questions, unless involves issues of great magnitude

• Civil and administrative appeals

Writ of Certiorari a.k.a. General Supervisory [Super]

Powers

• Writ of Certiorari—Appellate Rule 21 • Equitable power to review the proceedings of a lower court

• Both appellate courts have equitable powers • Only Supreme Court has constitutional superpowers

• Unnecessary to address error preservation problems

• Supreme Court sometimes utilizes its constitutional supervisory powers to address important or significant issues that were not preserved for review

Questions?

• Allegra Collins • Campbell University School of Law • collinsa@campbell.edu • (919) 865-4685 • www.allegracollins.com

• Beth Scherer • Smith Moore Leatherwood LLP • beth.scherer@smithmoorelaw.com • (919) 755-8790 • www.ncapb.com