SC Lawyer, January 2009, #2. I Object is not Enough: Tips for Criminal Defense Attorneys on Avoiding Procedural Default.

• Author: By John H. Blume and Emily C. Paavola

South Carolina Lawyer

2009.

SC Lawyer, January 2009, #2.

I Object is not Enough: Tips for Criminal Defense Attorneys on Avoiding Procedural Default

South Carolina LawyerJanuary 2009"I Object" is not Enough: Tips for Criminal Defense Attorneys on Avoiding Procedural DefaultBy John H. Blume and Emily C. PaavolaSince 1991, the S.C. Supreme Court has progressively adopted strict (and, at times) unpredictable procedural default rules in criminal cases. The Court has often refused to consider potentially meritorious issues on appeal because it determined that trial counsel failed to properly preserve issues for appellate review. Furthermore, unlike the overwhelming majority of states and the federal system, South Carolina has no plain error rule allowing the Court of Appeals or the Supreme Court to consider significant issues not preserved at trial. See John H. Blume & Pamela A. Wilkins, Death By Default: State Procedural Default Doctrine In Capital Cases, 50 S.C. L. Rev. 1 (1998). As a result, criminal defendants bear the full brunt of trial counsel's failure to comply with South Carolina's draconian, and sometimes byzantine, procedural default rules.

We do not purport to systematically discuss or critique South Carolina's procedural default jurisprudence in this article. For a more complete analysis of South Carolina's procedural default rules from 1991 to 1998, see John H. Blume & Pamela A. Wilkins, Death By Default: State Procedural Default Doctrine In Capital Cases, 50 S.C. L. Rev. 1 (1998); see also, Robert Dudek, The Honorable Ralph King Anderson Jr.'s Series on Effective Appellate Practice: Preserving the Record for Appeal, available at http://www.scbar.org/member_resources/continuing_legal_education/distance_learning. Our purpose is more practical; we hope to provide criminal defense attorneys with practical advice regarding how to properly preserve issues for appellate review. We begin with some of the basic steps counsel must take to avoid a procedural default.

* Make a contemporaneous objection and obtain a ruling.

Trial counsel must make a contemporaneous objection. In State v. Vazsquez, 364 S.C. 293, 613 S.E.2d 359 (2005), the solicitor referred to the defendant as a "domestic terrorist" in his closing argument and drew a correlation between the events of September 11, 2001, and the defendant's case. Id. at 362 n.3. The S.C. Supreme Court admitted that these statements were "troublesome," but found that they were not preserved for review because trial counsel failed to lodge a contemporaneous objection. Id; see also, State v. Holmes, 361 S.C. 333, 345, 605 S.E.2d 19, 25 (2004), rev'd on other grounds, Holmes v. South Carolina, 547 U.S. 319 (2006) (holding that appellant's claims stemming from the solicitor's closing argument were defaulted where trial counsel objected at trial, but only after the solicitor had finished his entire closing argument). See Record on Appeal (on file with the authors).

In addition to raising a contemporaneous objection, trial counsel must obtain a ruling from the court. See State v. Hudgins, 319 S.C. 233, 460 S.E.2d 388, 390 (1998) (issue procedurally barred where defense counsel objected to solicitor's throwing a ski mask at defendant during cross-examination, but the trial judge did not rule on the objection and counsel did not object further or request curative instructions). If the trial judge ignores the objection or merely indicates "objection noted," there has been no final ruling and therefore no preservation. See Dudek, supra.

* Proffer any excluded evidence.

When an objection stems from the court's exclusion of evidence, trial counsel should seek to proffer the excluded testimony and make any excluded physical evidence a court exhibit. The failure to proffer excluded evidence prevents consideration of the issue on appeal. State v. Nelson, 322 S.C. 377, 471 S.E.2d 767 (Ct. App. 1996), rev'd on other grounds, State v. Nelson, 331 S.C. 1, 501 S.E.2d 716 (1998). If the trial court refuses to allow counsel to proffer the testimony of a witness, counsel must orally state what the proffered testimony would have been. See Dudek, supra.

Where the court refuses to allow voir dire in a particular area, trial counsel must either: (a) get the court to issue a clear ruling about whether the court is disallowing a particular question or line of questioning for every potential juror, or (b) attempt to ask the question(s) of every potential juror and obtain a ruling from the court for each individual voir dire. The excluded questions should be made a court's exhibit, and all grounds in support of the excluded voir dire should be argued on the record. Id.

Where the trial judge refuses to give requested jury instructions, the excluded instructions should likewise be marked as a court's exhibit. Id. Be absolutely certain, however, that if you submit an instruction in...