Supreme Court Upholds Constitutionality Of Another Error Preservation Statute

Fox Rothschild LLP

Fox Rothschild LLP

Under Appellate Rule 10, the general rule is that appellate courts only decide issues properly raised, argued, and decided in the trial tribunal.  But exceptions to this general rule exist for issues considered so fundamental that they are automatically preserved for appellate review by rule, law, or case authority.  Based on this second principle, the Supreme Court of North Carolina recently upheld the constitutionality of N.C. Gen. Stat. § 15-1446(d)(10)—a criminal procedure statute that automatically preserve for appellate review the “subsequent admission of evidence involving a specified line of questioning when there has been an improperly overruled objection to the admission of evidence involving that line of questioning.”

As Kip’s prior blog post on a different topic notes, the defendants in State v. Corbett, 2021-NCSC-18, were a father and daughter convicted of the second-degree murder of the daughter’s husband. The defense maintained that the father found his daughter’s husband violently choking her while yelling, “I’m going to kill her.”  A brutal and protracted struggle between the father, daughter, and son-in-law ensued, with the father and daughter at some point repeatedly striking the son-in-law and ultimately causing his death. The issue for the jury was whether the use of force was necessary to protect the defendants from an imminent and reasonable threat of death from the son-in-law.

A divided Court of Appeals reversed the defendants’ conviction and ordered a new trial in a decision that spanned 169 pages. The reversal was based, in part, on the trial court’s admission of expert testimony that violated Evidence Rule 702(a). The State’s “expert in blood stain pattern analysis” testified that purported blood splatters found on the defendants’ clothing suggested that the victim had been struck while lying on the ground. The Court of Appeals majority concluded that the expert’s testimony was “based on insufficient facts and data” because the expert never tested or otherwise verified that the purported blood splatters on the defendants’ clothing belonged to the victim rather than someone else.  Although error preservation apparently was not raised by the State in its Court of Appeals brief, the dissenting Court of Appeals judge would have declined to reach the evidentiary issue on error preservation grounds.  The reason why was because while trial counsel objected on “multiple occasions before the jury” to the State’s expert testifying about the untested blood spatters, trial counsel failed to renew defendants’ objection during one or more of the expert’s answers on this issue.

On further review, the Supreme Court held that (1) the defendants “properly objected and preserved the issue on appeal,” but, in any event, (2) the defendants’ “objection to the admissibility of this evidence was preserved by operation of law” under section 15-1446(d).  In doing so, the Supreme Court majority upheld section 15A-1446(d)(10) as constitutional “because the provision does not conflict with specific provisions of our appellate rules rather than the general rule stated in Rule of Appellate Procedure 10(a),” and thus “operates as a ‘rule or law’ under Rule 10(a)(1), which permits review of this issue.”

Three justices dissented, contending that the defendants had not properly preserve the issue for appellate review because (1) they failed to raise the section 15A-1446(d)(10) automatic preservation issue in their Supreme Court appellate briefs or during oral argument, (2) trial counsel did not request a continuing objection to the testimony during the trial, and (3) the majority’s reliance on section 15A-1446(d)(10) rested “on questionable constitutional grounds.”

As to the third issue raised by the dissent,  my take is that the constitutionality of the statutory “continuing” or “standing” objections has been addressed by the Supreme Court before.  In Duke Power Co. v. Winebarger, 300 N.C. 57 (1980), the Supreme Court upheld the constitutionality of Civil Procedure Rule 46(a)(1).  Similar to section 15A-1446(d)(10), Rule 46 provides that “when there is an objection to the admission of evidence involving a specified line of questioning, it shall be deemed that a like objection has been taken to any subsequent admission of evidence involving the same line of questioning.” Duke Power held that because the General Assembly’s passage of Rule 46 falls within the “rule or law” exception to Appellate Rule 10, it is constitutional:

“Our appellate rules provide: “Any exception which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be set out in the record on appeal and made the basis of an assignment of error.” It is thus Appellate Rule 10 in conjunction with Civil Procedure Rule 46 which enables respondents to take advantage of this assignment of error.

300 N.C. at 69 (emphasis in original).

Is there a functional difference between Civil Rule 46 and section 15A-1446(d)(10)—other than that one statute applies to civil trials and the other statute applies to criminal trials? In other words, for the Supreme Court to declare section 15A-1446(d)(10) unconstitutional, would it have had to overrule Duke Power? I’m curious to hear your thoughts.

The majority and dissenting opinions in Corbett also diverged on what steps a party must take to properly invoke the continuing objection exception to Appellate Rule 10. The dissenting justices appeared to want trial counsel to formally request a “continuing” or “standing” objection to a specific line of questioning from the trial judge.  To be sure, a formal request for a trial court to recognize a continuing or line objection is the safest practice. See North Carolina Appellate Practice & Procedure, § 4.03[6] (2019) [Continuing, Standing, or Line Objections] (and cited cases).   Indeed, Duke Power long ago noted that the better practice is for trial counsel “to precisely define the ‘line’ of cross-examination to which” counsel is objecting.  300 N.C. at 68.

But is a formal request for a continuing or standing objection required? The Corbett majority appeared to say the answer is “No.”  Indeed, Duke Power addressed the lack of a formal request for a continuing or standing objection under Civil Rule 46:

“To hold that the trial judge was not in fact cognizant of respondents’ opposition to a specified line of questioning would truly exalt form over substance. Though not literally complied with in this case, the requirement in Rule 46 (a)(1) that counsel object to a “specified” line of questioning is obviously satisfied where, as here, the “line” of questioning objected to is apparent to the court and the parties.

Previous objections had been twice overruled by the court after a discussion with counsel of the applicable law. It was thus abundantly clear that later objections to the same line of questioning would be of no avail.

300 N.C. at 68-69.

Finally, the dissenting opinion in Corbett was concerned by “the lack of briefing and argument by the parties” on the section 15A-1446(d)(10) issue.  A fair point.  The majority, however, countered that any briefing deficiencies on this point were caused by the State’s failure “to argue that defendants had not preserved their objection to the bloodstain analysis at the Court of Appeals.”  Another fair point.  The heart of this difference of opinion goes to two separate, but related, issues that I do not believe the Supreme Court has ever definitely addressed: the party-presentation doctrine and whether appellees can “waive the waiver” under Appellate Rules 10 and 28.

Section 4.05[1] of the appellate treatise contains a chart listing many statutes that preserve errors for appellate review, along with the known appellate opinions addressing the constitutionality or enforceability of those statutes. But that section, as well as a prior blog post, also warns how difficult it can be to determine when those statutes will be upheld in a particular case.  The close divide in the Corbett decision highlights why efforts to rely on the rule or law exception to Appellate Rule 10 have proven unpredictable and risky.

Shifting gears, the dissent notes that “the Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.”  Yet, the search for a consistent application of Appellate Rule 10 likely turns on the answer to a question that the appellate courts seem to be divided on at times: What is the Supreme Court’s primary purpose for requiring error preservation in the trial tribunal.  Is Rule 10 a pragmatic requirement designed to ferret out whether the trial court was given fair notice and an opportunity to reach the correct result on a particular issue? Or is Rule 10 designed mainly as an error-sifting function—extending appellate review to only those issues so important to trial counsel that they were meticulously and repeatedly brought to the trial court’s attention every time the issue came up at trial? Or is there some other policy dispute at play as to how to apply Appellate Rule 10?

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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