Preservation

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by: • April 1, 2014 • no comments

The following hyper-practical summary of preservation rules and advice was written by OPDS attorney Sarah Laidlaw, with fellow OPDS attorneys Neil Byl and Andrew Robinson.

The Preservation Rule

The Rule: “[A] party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000)

The Basics

Preservation is accomplished when the trial court is alerted to the error and has a chance to correct the error. The record must reflect that.

In every appeal, the court of appeals will ask:

(1) Was the issue preserved?

(2) Did the trial court commit an error?

(3) Was the error harmless?

In order to prevail, the issue must be preserved, the trial court must have erred, and the error must be harmful (i.e., likely affected the verdict). It is important to remember that the way a defendant preserves an issue may affect whether the error was harmless. (See notes on stipulated facts trial below.)

Rules to Argue By

Be Specific – make specific arguments and request specific remedies (move to strike evidence if an objection is sustained)

Request Alternatives (but don’t concede your position) – for example, request limiting instructions if a court denies your motion to exclude evidence or make an alternative argument for why and when a stop occurred

Use the Facts – even if you can’t articulate the particular law, applying the facts in your case and making a common sense argument may preserve the issue

Federalize the Issues – the court of appeals will not review an issue under federal law unless presented to the trial as such, and a defendant may not pursue habeas corpus without first exhausting the issues in state court

Explicitly state that a claim falls under federal law. Lyons v. Crawford, 232 F3d 666, 668 (9th Cir 2000), as amended, 247 F3d 903 (9th Cir 2001).

Be specific and apply the facts. Gray v. Netherland, 518 US 152, 162-63, 116 S Ct 2074, 135 L Ed 2d 457 (1996).

If arguing that a trial court is violating defendant’s due process rights, cite to specific law. Shumway v. Payne, 223 F3d 982, 987 (9th Cir 2000).

Put it in Writing – a written motion, as long as it is specific enough to alert the court to the issue as applied in your case, may preserve the issue without further argument. State v. Walker, 350 Or 540, 550, 258 P3d 1228 (2011).

Be specific. In State v. Smith, 188 Or App 573, 578, 72 P3d 657, rev den, 336 Or 126 (2003), a written motion that claimed that a search was illegal without explaining why was not specific enough to preserve the issue for appeal.

Request Factual Findings – a trial court must make findings of fact on the record in certain cases (shackling the defendant for trial, imposing court appointed attorney fees, denying a motion to continue, etc.). You must request that the court make the findings, because the court’s failure to do so constitutes a separate error from the court’s error in taking the underlying action.

In State v. Steltz, 259 Or App 212, 216, 313 P3d 312, 315 (2013), defendant’s objection to shackling did not preserve his claim that the court erred in shackling defendant without making necessary findings on the record.

Request a Ruling – without a court’s ruling, there is no error (remember to request a ruling when a court defers its ruling on a motion in limine)

Put it on the Record – put chambers and side bar discussions on the record, submit any written requested jury instructions or motions to the record, clearly reiterate or redo anything that was said during a recording failure

Merely stating that defendant objected in chambers or during a side bar does not preserve the issue, the specific objections and argument must be put on the record.

Be Persistent – object every time the court makes the error, because the record that develops as the trial progresses may change how the objection is interpreted and the court of appeals may view your failure to continue to object as waiving that objection

To eliminate interruptions during a trial, you may request that the court grant you a continuing objection on an issue, but the court must grant that request on the record.

Be Prompt – if you fail to object when the error occurs, the court of appeals may find that you failed to allow the trial court a chance to correct the error and, therefore, that the issue was unpreserved

Motions in Limine

A pretrial ruling on a motion in limine is preferable to a deferred ruling, because a ruling in front of the jury may prejudice the defendant even if it is a favorable ruling.

• “An objection to evidence, with a motion to tell the jury to disregard it, is a poor alternative. The old cliché, ‘you can’t unring a bell,’ still applies.” State v. Foster, 296 Or 174, 182-83, 674 P2d 587 (1983).

Object when evidence is admitted at trial, even if the court already denied defendant’s motion in limine to exclude the evidence. This is important because the record developed during trial might change how the evidence is perceived.

• A pretrial motion in limine may not preserve a claim that the court erred in denying the motion or admitting the evidence if the basis for its inadmissibility did not appear until later in the trial and the defendant failed to object at that time of admission. State v. Pitt, 352 Or 566, 573-74, 293 P3d 1002, 1006 (2012).

If the court defers its ruling on the motion, ensure that the court makes an express ruling on your motion at the time it admits evidence, rather than simply admitting the evidence.

During a pretrial motion, make an offer of proof to show how the evidence will affect the trial, because “in the usual case, we will evaluate a claim of pretrial error on the basis of the same record that the trial court relied on in making the challenged ruling,” and not on the record that developed through trial. Pitt, 352 Or at 575.

If the motion to exclude evidence is denied, request a limiting instruction as an alternative.

Suppression Motions

Often, there are many possible theories of suppression in a single case. Ensure that you make the alternative arguments. Also ensure that you make distinct arguments stating the reason the police action was unlawful and the reason that suppression is the remedy. In other words, make an argument at each step: (1)the police action constituted a search/seizure; (2) the search/seizure was unwarranted; (3) the search/seizure was unlawful because (a)the police lacked probable cause/reasonable suspicion and/or (b) no exceptions applied; (4) the remedy is suppression of x, y, and z evidence; (5) suppression is required because the police obtained the evidence directly from the search/seizure and/or the evidence was derived from the unlawful search/seizure.

• In State v. Gillson, 259 Or App 528, 530, 314 P3d 719 (2013), the defendant failed to preserve his claim that the court erred in denying his motion to suppress. The defendant argued that the state failed to meet its burden of proving that a drug dog was reliable. But because the defendant did not tell the trial court that the record was insufficient on the dog’s reliability, the court of appeals found that the trial court implicitly ruled in the state’s favor on that factual matter.
• In State v. Pickle, 253 Or App 235, 244-45, 288 P3d 1039 (2012), rev den, 353 Or 428 (2013), the court of appeals refused to consider the argument that the defendant limited the scope of his consent to search, because the only argument that the defendant made at the suppression hearing was that the defendant did not give any consent.
• In State v. Lamb, 249 Or App 335, 340, 277 P3d 581 (2012), rev den, 353 Or 203 (2013), the court of appeals refused to consider the argument that seizure occurred when the officer unlawfully extended a stop by asking questions, because the defendant’s only argument to the trial court was that the questions constituted an unlawful seizure.
• “Defendant’s characterization of the officer’s questions as ‘basically bootstrapping a traffic stop into a fishing expedition for drugs or weapons’ aptly summarizes the breadth of defendant’s argument to the trial court, an argument that dealt exclusively with the scope of the officer’s questions, not the duration of the encounter. Because defendant failed to preserve his argument that the officer unlawfully extended the duration of the encounter, we do not address the merits—if any—of that argument.” State v. Amador, 230 Or App 1, 9-10, 213 P3d 846, 850-51 (2009), rev den, 347 Or 533 (2010).

Offers of Proof

When a trial court errs, an offer of proof puts on the record the effect of the error on the trial. An offer of proof may involve examining an excluded witness, playing an excluded recording, or simply defense counsel orally describing what she had expected if the trial court ruled the other way. An offer of proof helps the court of appeals to understand what was excluded to find the error and to determine whether the error was harmless.

• “One purpose of an offer of proof is to assure that appellate courts are able to determine whether the ruling was erroneous. . . Another purpose of an offer of proof is to assure that the trial court can make an informed decision. An offer of proof permits the parties to raise additional arguments, if appropriate, and gives the court an opportunity to reconsider its ruling and correct any error.” State v. Affeld, 307 Or 125, 128, 764 P2d 220 (1988).
• In State v. R.H., 192 Or App 8, 16-17, 83 P3d 951 (2004), rev dismissed, 338 Or 17 (2005), the court of appeals held that a trial court’s error in excluding the testimony of the mental committee’s witnesses was not preserved, because the committee made no offer of proof. The court further held that even if the error was preserved, the error was harmless because of the absence of an offer of proof.

OEC 403

Request the trial court’s analysis, which the court is required to put on the record under State v. Mayfield, 302 Or 631, 645, 733 P2d 438 (1987).

• Mayfield analysis: The trial court must (1) assess the need for the evidence; (2) determine how prejudicial it is; (3) balance the need against the prejudice; and (4) make a ruling.
• The court of appeals “generally defers to the trial court’s decision whether the probative value of the evidence is substantially outweighed by the potential for prejudice.” State v. Borck, 230 Or App 619, 638, 216 P3d 915 (2009) (finding that although the trial court did not undergo the Mayfield analysis, it still consciously balanced the costs and benefits of the evidence).

Argue for your remedy, because the trial court may only exercise its discretion to choose from legally correct outcomes. State v. Harrell, 353 Or 247, 254, 297 P3d 461 (2013); State v. Rogers, 330 Or 282, 310, 4 P3d 1261 (2000).

Argue why denying the motion will affect the verdict (make an offer of proof). State v. Sewell, 222 Or App 423, 428, 193 P3d 1046 (2008) (considering whether the trial court’s failure to undergo a Mayfield analysis was harmless error).

Hearsay

A general hearsay exception does not preserve the issue. Explain to the trial court how the specific exception that the state is using is inapplicable.

• In State v. Ferry, 255 Or App 625, 628, 298 P3d 63, 66 (2013), rev den, 353 Or 868 (2013), the state offered the victim’s letter in which she repeated statements of others saying that the victim was brave and that it wasn’t her fault. Defendant objected and argued that the letter constituted double hearsay. The state responded that the letter was admissible under OEC 803(18a)(b), complaint of sexual misconduct, and the statements repeated in the letter were not offered for their truth. Defendant did not address those arguments, and instead, made Crawford and vouching arguments. On appeal, the claim that the court erred in admitting the letter because it constituted hearsay was not preserved.
• In State ex rel. Jul. Dept. V. K.S., 229 Or App 50, 55, 209 P3d 845, rev den, 347 Or 259 (2009), the youth’s objection to the admission of a hearsay statement on the ground that the state failed to satisfy one requirement for admission did not preserve the appellate argument that the state failed to satisfy a different requirement for admission.

Right to Confrontation is often conflated with hearsay. Make sure your confrontation argument is separate from your hearsay argument.

MJOA

Identify the specific element that the state failed to meet.

• A defendant fails to preserve the MJOA when the defendant fails to specify the elements that the state did not prove. State v. Reynolds, 250 Or App 516, 280 P3d 1046, rev den, 352 Or 666 (2012).

Mistrial Motions

A mistrial motion must be immediate. It must be made at the time of the “objectionable event.” State v. Barone, 328 Or 68, 90, 969 P2d 1013 (1998).

• The immediate mistrial motion provides the trial court with an opportunity to take prompt curative action. State v. Veatch, 223 Or App 444, 453, 196 P3d 45 (2008).
• In some cases, the court of appeals may infer that the defendant made a tactical decision to wait on making the mistrial motion and refuse to review the failure to grant a mistrial as invited error. Veatch, 223 Or App at 454.

If the trial court denies a motion for a mistrial, request a curative instruction. It is generally the defendant’s responsibility to request such an instruction.

• “[I]n evaluating whether the trial court abused its discretion in denying defendant’s mistrial motion, we take into account that, to the extent that the trial court did not deliver a curative instruction, it was because defendant elected not to request one.” State v. Evans, 211 Or App 162, 169, 154 P3d 166 (2007), aff’d, 344 Or 358 (2008).

Jury Instructions

Under State v. Vanornum, 354 Or 614, 317 P3d 889 (2013), the defendant need not except immediately after the jury was instructed (ORCP 59H) in order to preserve for appeal the issue of an erroneous jury instruction. Rather, the basic principles of preservation apply.

Make sure the proposed jury instruction is in the record and in writing.

If you object to a state’s proposed instruction, specify the instruction you want.

Guilty Pleas

Conditional pleas are preferable to stipulated facts trials.

• “Stipulated facts trial” is a misnomer, because the parties are really stipulating to evidence that the state would present at trial. Based on that evidence, the trial court finds the facts and determines whether they are sufficient to convict. If you stipulate to facts, you are conceding the case, because you are stipulating as to what happened.
• If you lose a motion to suppress evidence, and you want to preserve the issue for appeal, a stipulated facts trial will render the error harmless if the stipulation does not explicitly include the evidence that the defendant moved to suppress (without that stipulation, the court’s verdict was not affected by the evidence and, thus, any error in denying the motion to suppress was harmless).

Conditional pleas must include a written statement that the defendant reserves her right to appeal a specific pretrial motion. Put the reservation in the written plea agreement and make sure you identify the specific ruling or rulings you are reserving for appeal. (Incorrect (unpreserved): “Defendant reserves for appeal the trial court’s pretrial ruling.” Correct (preserved): “Defendant reserves for appeal the trial court’s denial of defendant’s pretrial motion to suppress evidence.”)

• Rule: “With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea.” ORS 135.335(3)

Sentencing

When a trial court imposes court appoint attorney fees, request factual findings, because two possible errors exist: the trial courts imposition of the fees based on the lack of evidence of defendant’s ability to pay, and the court’s failure to make the findings necessary as to the defendant’s ability to pay before imposing the fees.

• “The Supreme Court has held, in many contexts, that preservation requirements apply to the error of failing to make special findings.” State v. Ashley, 240 Or App 795, 799, 249 P3d 125, 127 (2011), rev den, 350 Or 297 (2011).

Ensure the judgment is correct.

• When appropriate, consider moving to amend the judgment under ORS 138.083 (to correct arithmetic or clerical errors) or ORS 137.754 (when judgment does not comply with ORS 137.750 (work release and temporary leave) or ORS 137.752 (alternative sanctions)).

Remand

When a case is remanded, specify and argue for the defendant’s desired procedure, whether that is a new bench trial, a new jury trial, or a new portion of the trial or hearing. The trial court has discretion to choose only from the legally correct options. • “[W]hen this court reverses and remands, we assume that the trial court, with the parties’ guidance, will follow whatever procedure is appropriate in light of the reason for the remand.” State v. Sewell, 225 Or App 296, 297, 201 P3d 918, rev den, 346 Or 258 (2009).

• In State v. Barajas I, 247 Or App 247, 268 P3d 732 (2011), the court of appeals “Reversed and Remanded” when it found that the trial court erred by denying the defendant a closing argument. On remand, the defendant requested a new jury trial, but stated that it was within the trial court’s discretion. The case is back on appeal, because the trial court did not grant a new trial, but heard only the defendant’s closing argument (several years after hearing the case) before again finding the defendant guilty. The argument on appeal is that the trial court did not have discretion to choose the procedure, because the only correct option in that case was to grant a new trial.