Preserving the Record for Appeal: Tips and Pitfalls
| Publication year | 2024 |
| Citation | Vol. 85 No. 1 Pg. 0020 |
| Pages | 0020 |
An appellate practitioner is tied to the trial record. If something does not appear in the record, it did not happen for purposes of appeal. So, make sure everything appears on the record.
That seems simple enough. But even when an objection appears in the record, a motion in limine is filed, or an argument is made, the intended issue is not necessarily preserved for appeal. Instead, the rules governing issue preservation dictate that objections must be properly timed, grounds must be stated, and an adverse decision must be memorialized, among other nuanced rules that are not always intuitive. And our appellate courts do not shy away from refusing to address an arguably unpreserved issue on appeal.1
Issue preservation has been and always will be the key to success on appeal. Today, the need to preserve the record is greater than ever even in our most serious cases with the now discretionary application of plain error review to death cases.2 Certainly, issue preservation is easier said than done considering the pressures of trial practice. But we hope the following tips and pitfalls can assist the trial practitioner in preserving the record for appeal.
The Nuts and Bolts Of Issue Preservation
The general principle of issue preservation is that our appellate courts will only address issues timely and properly raised in the trial court.3 As the Alabama Court of Criminal Appeals often puts it: "[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof. . . .An issue raised for the first time on appeal is not correctly before this court."4
The ground or grounds stated for the objection at the trial level binds the appellate practitioner to the same previously raised ground as "[t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial."5
And the purpose of this specifically timed objection? It is to allow the lower court notice of the issue and an opportunity to correct it.6
But what do these timing and specificity requirements mean in the context of cases resolved by a guilty plea, at trial, and in the probation revocation context? Each of these scenarios offer different considerations for purposes of issue preservation.
Considerations in Plea Cases: Issue Preservation Versus Issue Reservation
There are limited ways to avoid the guilty plea waiver on direct appeal.7 "An issue raised on an appeal from a guilty plea must be preserved by an objection, a motion to withdraw the plea, or a motion for a new trial."8 As with all properly preserved issues, they must first be brought to the trial court's attention.9
One area of possible confusion deals with reserving and preserving issues for appeal in plea cases. In the case of a guilty plea, the defendant can avoid the normal guilty plea waiver rule by "expressly reserv[ing] the right to appeal with respect to a particular issue or issues."10
Simply put, reserving an issue for appeal means placing the trial court on notice that the defendant intends to appeal a particular issue before the defendant enters their guilty plea.11
Practically speaking, the trial practitioner makes a record during the plea hearing that a specific issue will be appealed prior to the defendant's guilty plea. In addition to making the appropriate record at the plea hearing, however, a diligent trial attorney can also memorialize the reserved issue on any plea agreement filed with the trial court. If applicable, they can also ensure that the standard form felony sentencing order appropriately reflects that an issue has been preserved for appeal.12
While making a specific record of the reserved issue is by far the preferred method to ensure that the guilty plea waiver rule does not prevent an appeal, our caselaw recognizes a limited exception. That is when the record, taken as a whole, demonstrates the trial court understood that the defendant had reserved an issue for appeal.13 As an example, in Mullins v. State, the Alabama Supreme Court held that the record overall indicated a reserved issue based on the trial court's comments at the conclusion of the plea hearing, sentencing, and at a plea withdrawal hearing.14 Thus, based on all of the court's comments on issue reservation, the record demonstrated that the court understood that the defendant intended to appeal a suppression issue.15 But this search of the record for a "pre-plea reservation of the right to appeal" as Ex parte Mullins put it, is the exception not the rule.16
Properly reserving the issue is just one of the two necessary steps to overcome the guilty plea waiver rule for appeal. Take, for example, Mitchell v. State.17 There, at the plea hearing, trial counsel made a record that the defendant intended to appeal the interpretation of a drug manufacturing statute.18 Counsel also memorialized the reserved issue on the plea agreement.19 All good, right? Not the case. Instead, the Alabama Court of Criminal Appeals refused to address the reserved issue indicating that "Mitchell never presented [the] issue . . . to the trial court before reserving it for appeal."20 As the court of criminal appeals succinctly put it, "[r]eserving the right to appeal an issue is not the equivalent of preserving an issue for appellate review. To preserve an issue for appellate review, the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained."21
Thus, both steps must be taken to properly pursue an issue on appeal following a guilty plea: (1) raise the issue to the trial court and obtain an adverse ruling and (2) place the trial court on notice of the intent to appeal the issue before the defendant enters their guilty plea.22 For example, in the context of a Fourth Amendment issue, this means that counsel needs to do three things: (1) file a motion to suppress; (2) get a ruling on the motion; and (3) properly reserve the issue before the client pleads guilty.
Preserving the Record at Trial
There are four basic considerations in preserving the record at trial: (1) object on the record;23 (2) make the objection timely, preferably before the objectionable evidence is introduced;24 (3) state specific grounds;25 and (4) obtain an adverse ruling.26
In addition to these four basic considerations, the circumstances of trial and the issue in play often dictate additional considerations for preserving the record.
Objecting on the record would seem to be a simple task during trial. But as any experienced practitioner knows, this is not always the case. Sidebars are often a necessary occurrence during a trial to flesh out objections without engaging in the type of speaking objections that judges despise. During these sidebars, defense counsel often asserts their grounds to an objection and the trial court may make findings or a ruling outside the earshot of the court reporter. Remember, if it does not appear in the record, it did not occur for the purposes of appeal.27 This means that unless the court reporter was party to the sidebar, your carefully crafted argument is unknown for purposes of appeal.28 Sidebars must be recounted on the record as soon as possible - typically the next time that the jury is not in the courtroom.
The timeliness of objections is also key to issue preservation. In general, an objection must be made as soon as the grounds are apparent.29 This means that when, for example, an objection comes after a witness has already responded to an objectionable question, nothing has been preserved for appeal.30 The only way to remedy this is both to object and to move to strike the witness's response to the objectionable question.31
Take, for example, a not so uncommon exchange from Gross v. State, between the prosecution and the defendant's alibi witness:
[State:] How long have you known this defendant, Tommy Gross? How long have you known him?
A. Well, I have known him ever since he has got [sic] out of jail.
(Defense Counsel): I object.
THE COURT: Well, it was responsive.32
In the above example, the State's question was not objectionable. However, the witness's response drew an objection. But as the Alabama Court of Criminal Appeals stated: "Since defense counsel did not move to exclude the witness's response, it was properly before the jury."33
The Gross v. State exchange also suffers from two...
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