How to Preserve
Error at Trial – An Appellate Lawyer’s Viewpoint — PART 2
by Patrick Megaro,
Esquire
This article was originally published at https://www.orlandocriminaldefenseattorneyblog.com/how-to-preserve-error-at-trial-an-appellate-lawyers-viewpoint-part-2/#more-1766
Sometimes in
life, you have to speak up. Yes, that’s what you pay an attorney
for. But no, it doesn’t always work the way it should. And
unfortunately, if your attorney doesn’t object when he/she should have–this
will create all sorts of problems later.
The good news is,
we have appellate attorneys like Patrick Megaro. He solves the problems
created by all the things that go wrong during a criminal trial. And yes,
lots can go wrong.
Enjoy Part 2 of
Patrick Megaro’s warning to we defense attorneys, he’s going to remind us how
to keep a criminal jury trial clean enough to reverse the conviction on
appeal–should things come to that. I published Part 1 of his
article a few weeks ago, it deals with pretrial motion issues and voir dire.
Look, I know that
you attorneys out there think you know everything–but you don’t. Quit
being so cocky. You can’t learn anything if you think you know
everything.
Read this.
Patrick Michael
Megaro is a criminal appellate and post-conviction relief attorney, who
practices in New York, New Jersey, North Carolina, Florida, Texas, and
Washington State, and numerous Federal courts. A native of New York, he
started his legal career with The Legal Aid Society, Criminal Defense Division
in New York City as an institutional public defender before going into private
practice. As an attorney, he has tried over 50 cases to verdict in various
State and Federal courts, and has handled thousands of appeals and
post-conviction relief petitions. He is a partner in the Orlando-based
firm Halscott Megaro, P.A. and Appeals Law Group.
Opening Arguments
and Summation
To preserve for
appellate review an issue relating to an alleged improper comment, a party must
object to the comment when it is made and obtain a ruling on the
objection. If a party objects to the comment, but fails to secure a
ruling from the trial judge, the issue is waived unless the judge deliberately
and patently refuses to rule on the objection.
If the trial
judge sustains the objection, the objecting party must make a timely request
for a curative instruction or a motion for mistrial to preserve the issue for
appellate review. The motion for mistrial must be made before the jury retires
to deliberate.
Motion for a
Judgment of Acquittal
“The defense
moves for a judgment of acquittal because the State has failed to make a prima
facie case” is INSUFFICIENT to preserve a sufficiency issue for appeal.
Consider the
following:
That said, when a
motion for judgment of acquittal is well taken, I have never understood why an
attorney’s failure to make a sufficient motion for judgment of acquittal is not
ineffective assistance on the face of the record. Even a marginally prepared
attorney should know the elements of the offense for which a client is on
trial. That marginally prepared lawyer ought to be expected to listen to the
evidence closely enough to know whether the State failed to prove an essential
element of the offense. There rarely, if ever, is a tactical reason for a
lawyer not to move for a judgment of acquittal when the client is entitled to
be acquitted.
Stoddard v.
State, 185 So.3d 696, 697 (Fla. 2d DCA 2016 )(Altenbrand, concurring)
A motion for a
judgment of acquittal has to be made at the close of the State’s evidence, and
AGAIN at the close of ALL evidence, even if the defense does not put on a case,
in order to properly preserve the issue.
Of course, you
should identify the specific elements which are lacking evidence, and be
prepared with caselaw and to argue the trial record why the evidence was
insufficient.
Jury Instructions
Jury instructions
typically are discussed with the court prior to the court’s final instruction
to the jury at a charge conference. This is the defendant’s opportunity
to propose instructions, make objections to instructions, and request specific
instructions to address issues that pertain to the trial.
However, the
objection MUST BE MADE AGAIN after the court delivers the instruction to the
jury and BEFORE the jury retires to deliberate. When the court reads the
instructions to the jury, request a sidebar ON THE RECORD and repeat the
objections made earlier. If you do not, the issue is waived for appeal.
Sentencing
In order to
preserve a sentencing argument, the objection must be made BEFORE and AFTER
sentence is imposed. We have learned the hard way that relying on a judge
who says “your exception is noted” is insufficient to preserve a sentencing
error. Whatever objections to make to the Pre-Sentence Report, the
Sentencing Scoresheet, or anything else must also be made AGAIN after the court
formally pronounces sentence or else it is waived.
DO NOT RELY ON
FUNDAMENTAL ERROR
We have all tried
cases that we knew would be extremely difficult, if not impossible, to
win. It is easy to look at a seemingly hopeless situation and forget to
properly preserve issues for appeal. However, I can tell you that I have
had more than my fair share of cases that were “dead losers” at trial but came
back on appeal because the court or the prosecutor thought that because there
was overwhelming evidence of guilt, they could be free to take shortcuts.
In those cases, the preservation of error for appellate review was the trial
attorney’s greatest accomplishment.
Without proper
preservation, appellate lawyers have to argue fundamental error, which is
almost impossible. Florida courts and Federal courts rarely, if ever,
reverse on fundamental error. This is why proper preservation is
extremely important.
For the close
case, appellate courts are more likely to reverse if an issue was properly
preserved.
For the cases
that felt like trial was a “suicide run,” this is all the hope the client has.
For more practice
tips visit Halscott Megaro at
or find us on
Facebook at
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. See https://themegarocriminallawlibrary.com/ - Facebook: https://www.facebook.com/patrickmichael.megaro.9 - Attorney Profile: https://criminal-defense-attorney.squarespace.com/patrick-michael-megaro-esq/ - Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
