Fighting the Trial Without Losing the Appeal

A good criminal defense attorney not only tries to win the trial in front of the jury but works to preserve any legal issues for appeal.  In North Carolina, this can be tricky.

Under North Carolina law, it is not sufficient to file a written motion to suppress evidence and then litigate that at a pretrial motion hearing.  The attorney must also make an on-the-record objection at the time the evidence is offered into evidence in front of the jury.  If the attorney fails to do this, then the defendant will be held to have waived appeal of this issue.

The fact that this is a common mistake by criminal defense attorneys is illustrated by two opinions handed down on the same day, February 21, 2017, by the North Carolina Court of Appeals.  In State v. Gullette, the defense attorney had moved to suppress an out-of-court photo identification of the defendant on the grounds that it was unfairly suggestive and was obtained in violation of a new state statute.  However, after the court ruled against the defense during a pretrial hearing, the defense attorney failed to object to this evidence when it was offered into evidence during the trial.  The Court of Appeals rejected appellate review of the issue because the defendant failed to preserve the issue.

Similarly, in State v. China, the defense attorney had filed a pretrial motion to exclude evidence of the defendant’s recent release from prison.  He had also objected during trial to the State’s stated intention to elicit such evidence from a witness.  However, he did not object when the prosecutor asked the witness questions which elicited the testimony about the defendant being in prison.  Therefore, the Court of Appeals held that the defense had failed to preserve this issue for appellate review and dismissed the defendant’s appeal of that issue.

The moral of the story:  a criminal defense attorney in North Carolina must timely object to admission of evidence before trial, but if the judge denies the motion, must also object again when the evidence is offered into evidence in front of the jury.  Otherwise, there will be no ability to pursue that issue on appeal.

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