Error preservation may be the most overlooked aspect of trial preparation and trial practice in criminal cases.

For some criminal defense attorneys, trials are things to be avoided – they take time, they often do not pay any more than a plea would have, and, if your only concern is making as much money as possible with the least amount of time invested, guilty pleas with no trial preparation might be the way to go.

If your goal is to win, however, you must 1) prepare your cases for trial and 2) consider how to raise and preserve issues for a potential appeal.

Error Preservation: If the Attorney Doesn’t Object, You Lose on Appeal

State v. Morales, decided this week by the SC Supreme Court, illustrates the importance of error preservation and highlights multiple failures to preserve potential appellate issues in a CSC with a minor trial.

Although there are many ways to fail to preserve otherwise valid appellate issues at trial, two of the most common are:

1. Failing to make a contemporaneous objection to the inadmissible testimony or evidence, and
2. Failing to identify the exact grounds for your objection.

Failure to Make a Contemporaneous Objection

In Morales, the defendant was accused of sexually assaulting his stepdaughter, and, of course, the State sought to introduce evidence that the defendant had also sexually assaulted the alleged victim’s younger sister, although he was not charged with the second alleged assault.

At the time of Morales’ trial, the controlling law on the issue was State v. Wallace – to oversimply the issue, if “the similarities outweigh the dissimilarities” between the alleged assault and the uncharged assault, it may be admissible to show a “common scheme or plan” under Rule 404(b) if the evidence is also more probative than prejudicial under Rule 403.

Morales argued on appeal that the State failed to establish that the similarities outweighed the dissimilarities as required by State v. Wallace, but the SC Supreme Court refused to consider the issue because Morales’ attorney did not make a contemporaneous objection to the testimony at trial.

Before trial, the prosecutor proffered testimony from the younger sister (had her testify outside the presence of the jury so the trial court could rule on whether the testimony was admissible). The state asked for a “conditional ruling” before the trial started, but the judge declined to rule on the admissibility of the testimony at that time.

During the trial, the prosecutor asked for a “final ruling,” and the judge said, “I’m going to find her testimony will be admissible and I will allow her to testify tomorrow.” The State then called several witnesses to establish similarities between the alleged assault and the younger sister’s allegations before calling the younger sister to testify.

Although it is not clear whether Morales made a valid objection before the testimony, the attorney did not make a contemporaneous objection to the testimony when the younger sister testified in front of the jury – three additional witnesses testified between the judge’s statement that the testimony was admissible and the younger sister’s testimony.

Because the defense attorney did not object when the younger sister was called to the witness stand, the SC Supreme Court held that the issue was not preserved for appeal.

Failure to Raise the Correct Issue in Your Objection

While the case was pending on appeal, the SC Supreme Court reversed State v. Wallace in State v. Perry, holding that the prosecutor must show more than similarities between the alleged crimes for the uncharged acts to be admissible as a common scheme or plan under Rule 404(b).

Now, “[t]he State must show a logical connection between the other crime and the crime charged such that the evidence of other crimes ‘reasonably tends to prove a material fact in issue.”

On appeal, Morales also argued that the younger sister’s testimony was inadmissible under State v. Perry, but the SC Supreme Court found that this issue was unpreserved 1) for the same reason the Wallace issues was unpreserved – there was no contemporaneous objection and 2) Morales’ attorney never argued that Wallace was the wrong standard; therefore, the State never had an opportunity to argue this specific issue and the judge never had an opportunity to rule on it.

To preserve an objection based on the Perry issue, the defendant “was required to be clear at trial that he contended Wallace set forth the incorrect standard and the correct standard for admissibility under Rule 404(b) was a logical connection.”

Error Preservation Matters in Every Trial

Error preservation matters in every trial. Why?

You want to win your trial. Your attorney wants to win your trial. You both might feel confident you can win the trial. But – the only thing that is certain in the practice of law is that nothing is certain.

Some trials are lost unexpectedly – at this point, you have lost the battle, but not the war. If your attorney has made motions and objections throughout the trial that the court has wrongly denied, you may have grounds for an appeal.

Some cases are tried knowing that you might lose at trial and anticipating an appeal, remand, and retrial.

There was a DUI trial I observed years ago, where the defendant was clearly intoxicated. There was a car wreck with minor injuries. There was a blood alcohol result that was around .23 (a high result). There were no field sobriety tests on the roadside because the defendant had to be extricated from their car and had minor injuries.

A motorist that stopped to help just happened to be a nurse, and she testified that there was an overwhelming odor of alcohol and that the defendant was severely intoxicated. The responding officer testified to the same. The driver of the other vehicle was angry, wanted jail time, and was present at the trial.

The prosecutor wanted jail time (on a DUI first offense), and the judge seemed likely to give it, so the defendant went to trial. During the trial, the defense attorney made a series of motions that would be grounds for appeal if the court denied them, and, sure enough, the court denied them.

The defendant was convicted, the judge sentenced the defendant to 30 days in jail, and the defense attorney (who knew it was likely to be a conviction) immediately moved to stay the sentence and filed a notice of appeal.

While the case was pending on appeal in the circuit court, the magistrate refused to send the evidence to the circuit court for appellate review. After several rescheduled appeal hearings in the circuit court and a writ of mandamus to force the magistrate to send up the evidence, it was discovered that the magistrate had lost the evidence from the trial.

The circuit court judge then reversed the conviction and remanded the case for a new trial based on the magistrate’s failure to provide the circuit court with the evidence to review (without even considering the valid appeal issues).

Although the defense attorney was prepared to try the case a second time (and appeal, and try the case a third time, etc.), the prosecutor dismissed the charges on remand because they no longer had the original evidence from the first trial and because the arresting officer had been charged with driving under suspension while the case was pending on appeal…

What Happens to Morales Now?

The Supreme Court denied his appeal because his attorney failed to preserve the potential appellate issues during his trial.

Even after losing a trial and losing an appeal, however, that’s not the end of the road.

Morales should have an opportunity to file a post-conviction relief (PCR) action now, alleging ineffective assistance of counsel based on his trial lawyer’s failure to preserve the issues at his first trial.

If he loses the PCR action in the circuit court, his case may go to the SC Supreme Court again on a PCR appeal. If he wins the PCR action in the SC Supreme Court, then he may have the opportunity to try his case again.

Questions About Error Preservation at Trial?

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts and has extensive trial experience in all types of criminal cases from traffic offenses to murder.

If you have been charged with a crime or believe you are under investigation in the Charleston, Georgetown, or Myrtle Beach areas of SC, call now at (843) 808-2100 or email to schedule a free consultation.