Section 29.15 Preservation of Error for Appellate Review

• Library: Criminal Practice 2012 Supp

A. (§29.15) Preservation of Error for Appellate Review

An appellant who has failed to preserve the appellant’s point or who
has improperly done so will probably lack the prerequisites to
assert that matter on appeal. The reviewing court will not consider
on appeal matters that have been neither properly preserved nor properly presented for appellate review. Rule 30.20; State v. Williams, 521 S.W.2d 29 (Mo. App. E.D. 1975).

Some of the more common errors that have been improperly preserved for appellate review include the following:

· Alleged restriction in voir dire examination or improper examination cannot be reviewed when the transcript does not contain the examination itself. State v. Crow, 487 S.W.2d 461 (Mo. 1972); State v. Ross, 502 S.W.2d 241 (Mo. 1973); State v. McCoy, 458 S.W.2d 356 (Mo. 1970); State v. Paige, 446 S.W.2d 798 (Mo. 1969).

· Claims of prejudice or systematic exclusion of minorities from jury panels requires an excellent record and probably an evidentiary hearing as well. State v. Aikens, 507 S.W.2d 386 (Mo. 1974); State v. Wallace, 504 S.W.2d 67 (Mo. 1973); State v. Brown, 527 S.W.2d 15 (Mo. App. W.D. 1975).

· The defendant’s request for a preliminary hearing or that the matter be remanded because of procedural problems at the preliminary hearing must be asserted before arraignment in circuit court. State v. Brinkley, 189 S.W.2d 314 (Mo. 1945); State v. Caffey, 438 S.W.2d 167 (Mo. 1969).

· Errors in oral argument will not be reviewed when the transcript does not include the argument so as to allow the appellate court to review it. State v. Pryor, 525 S.W.2d 413
(Mo. App. W.D. 1975); State v. Gordon, 527 S.W.2d 6 (Mo. App. W.D. 1975); State v. Taylor, 486 S.W.2d 239 (Mo. 1972).

· Exhibits that an appellant argues are objectionable must be filed with the appellate court for its own examination. State v. Hendrix, 454 S.W.2d 40 (Mo. 1970); State v. Davis, 515 S.W.2d 181 (Mo. App. W.D. 1974); Rule 30.05.

· If the appellant objects to the improper exclusion of evidence, a complete record must have been made in the trial court by means of an offer of proof setting out the nature of the evidence, its relevancy, and its materiality. State v. Bibee, 496 S.W.2d 305 (Mo. App. S.D. 1973); State v. Johnson, 485 S.W.2d 106
(Mo. 1972).

· The trial court’s hostility, misconduct, or arguments must be included in the record, either by testimony or by the statements of counsel. State v. Neal, 476 S.W.2d 547 (Mo. banc 1972);
State v. Abbott...