Preservation of Issues for Appeal

• Jurisdiction: Maryland

IX. Preservation of issues for appeal

In Basoff v. State, 208 Md. 643 (1956), the Court of Appeals held the following:

When a party has the option either to object or not to object, his failure to exercise the option while it is still within the power of the trial court to correct the error is regarded as a waiver of it estopping him from obtaining a review of the point or question on appeal. [This Court] adopted the rule to ensure fairness for all parties to cases and to promote the orderly administration of the law.

Id. at 650 (citing Banks v. State, 203 Md. 488 (1954)).

A. Issue must be raised in, and decided by, the trial court, or it is not preserved for appeal

The appellate courts usually do not address an issue unless that issue was raised in, and decided by, the trial court. Otherwise, the issue is not preserved for appellate review. Md. Rule 8-131(a); see, e.g., Robinson v. State, 410 Md. 91, 103-06 (2009) (denial of public trial not objected to and, therefore, not preserved for appeal); Klauenberg v. State, 355 Md. 528, 544 (1999)7 (defendant did not preserve challenge to admission of evidence by inviting error in question on recross-examination and failing to object); Graham v. State, 325 Md. 398, 411 (1992) (trial court's refusal to disclose entire contents of jury note not preserved for review because defendant did not object); White v. State, 324 Md. 626, 640 (1991) (denial of right to compulsory process not preserved for appellate review); Rose v. State, 240 Md. 65, 69-70 (1965) (issue regarding admissibility of hearsay testimony not preserved where defendant did not object to testimony); Lauder v. State, 233 Md. 142, 144-45 (1963) (issue as to qualification of witness to testify on certain matter not preserved where there was no objection to question, no motion to strike answer, and no cross-examination); Ramirez v. State, 178 Md. App. 257, 278 (2008) (issue regarding alternate juror's improper presence in jury room not preserved); Cantine v. State, 160 Md. App. 391, 407 (2004) (failure to object to prosecutor in jury room to teach jurors how to use playback equipment constituted waiver of issue); Lee v. State, 193 Md. App. 45, 70-71 (2010) (failure to object based on discovery violation, at time of questioning, to medical examiner's opinion as to whether victim was under influence of PCP was waiver); York v. State, 56 Md. App. 222, 232-33 (1983) (general proffer as to what areas defense counsel would question witness on had he not invoked his privilege against compelled self-incrimination insufficient to preserve issue); Jorgensen v. State, 80 Md. App. 595, 600-01 (1989) (no proffer necessary to preserve issue related to trial court's refusal to admit certain testimony when questions objected to clearly indicate thrust of argument); Jackson-El v. State, 45 Md. App. 678, 680 (1980) (Sixth Amendment speedy trial issue not preserved where it was never presented to the trial court); Mitchell v. State, 51 Md. App. 347, 357 (1982) (issue regarding improper jury instruction not preserved where no objection was made at time instruction was given); Walker v. State, 21 Md. App. 666, 672 (1974) ("Failure to object to the admissibility of the evidence results in waiver of the objection.").

In Acquah v. State, 113 Md. App. 29 (1996), where the defendant sought appellate review of the trial court's alleged "pattern of improper conduct," the Court of Special Appeals held:

In order to gain review of the conduct and actions of a trial judge, the aggrieved party must (1) raise the issue during trial, (2) make a record with facts set forth in reasonable detail to show the purported bias of the court, (3) factual assertions supporting the claim must be made in the presence of the judge and opposing counsel, (4) the party must not be ambivalent in setting forth his or her position regarding the judge's actions, and (5) the specific relief sought must be stated with particularity.

Id. at 61. Because the defendant in Acquah failed to raise the issue of "improper conduct" during trial, the Court of Special Appeals declined to consider the issue. Id. at 61-62.

B. Whether to provide a basis for an objection

If defense counsel objects to evidence, he or she (1) may object, without offering a reason, if the court does not request a reason; (2) may object and offer a reason, even if the court does not request a reason; or (3) may object and must offer a reason, if the court requests a reason. See Md. Rule 4-323.

If the trial court does not request the basis for an objection, there is no need to offer a basis, and all correct bases may be argued on appeal. Thomas v. State, 413 Md. 247, 261-62 (2010); Johnson v. State, 408 Md. 204, 222-23 (2009); Boyd v. State, 399 Md. 457, 475-76 (2007).

If trial counsel gratuitously offers a basis for the objection, or if the trial court requests the basis for the objection, and one is given, appellate counsel will be limited to the basis given, and all other grounds are waived. Md. Rule 5-103; DeLeon v. State, 407 Md. 16, 24-25 (2008); State v. Bell, 334 Md. 178, 188-89 (1994); State v. Funkhouser, 140 Md. App. 696, 718-19 (2001). In Giordenello v. United States, 357 U.S. 480 (1958), the Supreme Court held that the Government could not inject a new theory into the case on appeal because that would deprive the Defendant of an opportunity to respond. Id. at 487-88.

In Sifrit v. State, 383 Md. 116 (2004), the Court of Appeals rejected the Defendant's argument that he was simply presenting a more detailed version of an argument that he presented to the trial court. Id. at 136. The Court held: "To accept this argument . . . we would have to require trial courts to imagine all reasonable offshoots of the argument actually presented to them. . . . We decline to place such a substantial burden on the trial court." Id.

In von Lusch v. State, 279 Md. 255 (1977), the Court of Appeals held that when the party "objecting to the admission of evidence, although not requested by the court to state his grounds, goes ahead and delineates the specific grounds for his objection, he will be bound by those grounds and will ordinarily be deemed to have waived other grounds not mentioned." Id. at 263. In Anderson v. Litzenberg, 115 Md. App. 549 (1997), the Court of Special Appeals held:

[C]ounsel may state with particularity the grounds for an objection, either voluntarily or at the trial judge's request. If counsel provides the trial judge with specific grounds for an objection, the litigant may raise on appeal only those grounds actually presented to the trial judge. All other grounds for the objection . . . are deemed waived.

Id. at 569.

If specific grounds are requested by the trial court, but not provided by counsel, the issue is not preserved for appeal. In Bazzle v. State, 426 Md. 541 (2012), the Court of Appeals stated: "[T]he trial court specifically offered to hear grounds for the objection, and said that without grounds, it would overrule. That was sufficient to put defense counsel on notice that the objection would not be preserved, under Rules 5-103(a) and 4-323, unless grounds were provided." Id. at 561-62.

In Banks v. State, 84 Md. App. 582 (1990), the Court of Special Appeals held that, although normally a party is bound by the grounds asserted to support the objection, when that party makes an additional argument, prior to the evidence being shown to the jury, the issue is preserved. Id. at 587-89.

The defendant does not waive an objection to inadmissible testimony by cross-examining the witness, but does waive the objection by offering testimony on the same matter. See Peisner v. State, 236 Md. 137, 144-45 (1964); Mills v. State, 19 Md. App. 614, 616-17 (1974).

C. Continuing objections

A continuing objection may increase the defendant's chance of successful appellate preservation. The defendant may request, and a court may grant, within its discretion, a continuing objection. Md. Rule 4-323(b). However, a continuing objection is only effective as to questions clearly within its scope. Md. Rule 4-323(b). In Johnson v. State, 408 Md. 204 (2009), the defendant requested, and the trial court granted, a continuing objection to a K-9 officer's testimony related to the "currency contamination theory," which preserved the issue for appeal. Id. at 222-23.

In Brown v. State, 90 Md. App. 220 (1992), defense counsel timely objected to evidence related to a handgun. Id. at 223-25. However, the defendant had not sought or obtained a continuing objection and failed to object when the same evidence was again introduced at subsequent points in the trial. Id. The issue was not preserved for appeal. Id. See also Ellerba v. State, 41 Md. App. 712, 725 (1979).

If a continuing objection is granted, followed by a break in testimony, the objection must be renewed, or the appellate court may be unable to determine whether the trial court considered the continuing objection as remaining in effect. See Hall v. State, 119 Md. App. 377, 390-91 (1998).

D. Examples of preservation satisfied

In Braxton v. Faber, 91 Md. App. 391 (1991), the Court of Special Appeals held:

We recognize that counsel is in a precarious position when he or she believes that the trial judge, by his actions, has caused harm to his or her client's case. The dilemma is he or she must choose between, on the one hand, remaining mute and not protecting a client's interest or, on the other hand, incurring the wrath of the trial judge in an effort to preserve a record on which the lower court's actions may be reviewed. Nevertheless, it is incumbent upon counsel to state with clarity the specific objection to the conduct of the proceedings and make known the relief sought.

Id. at 407. In In re Ryan S., 369 Md. 26 (2002), the Court of Appeals stated that

a party need not, in every circumstance, recite a specific litany to constitute an objection to a trial ruling or course of action. . . . [A]s long as the party . . . clearly makes the judge aware of

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