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By J.D. Lloyd, Robert H. Matthews, III and Alisha L. McKay

An appellate practitioner is tied to the trial record. If something does not appear in the record, it did not happen for purposes of appeal. So, make sure everything appears on the record.

That seems simple enough. But even when an objection appears in the record, a motion in limine is filed, or an argument is made, the intended issue is not necessarily preserved for appeal. Instead, the rules governing issue preservation dictate that objections must be properly timed, grounds must be stated, and an adverse decision must be memorialized, among other nuanced rules that are not always intuitive. And our appellate courts do not shy away from refusing to address an arguably unpreserved issue on appeal.[1]

Issue preservation has been and always will be the key to success on appeal. Today, the need to preserve the record is greater than ever even in our most serious cases with the now discretionary application of plain error review to death cases.[2] Certainly, issue preservation is easier said than done considering the pressures of trial practice. But we hope the following tips and pitfalls can assist the trial practitioner in preserving the record for appeal.

The Nuts and Bolts of Issue Preservation

The general principle of issue preservation is that our appellate courts will only address issues timely and properly raised in the trial court.[3] As the Alabama Court of Criminal Appeals often puts it: “[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof. . . .An issue raised for the first time on appeal is not correctly before this court.”[4]

The ground or grounds stated for the objection at the trial level binds the appellate practitioner to the same previously raised ground as “[t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.”[5]

And the purpose of this specifically timed objection? It is to allow the lower court notice of the issue and an opportunity to correct it.[6]

But what do these timing and specificity requirements mean in the context of cases resolved by a guilty plea, at trial, and in the probation revocation context? Each of these scenarios offer different considerations for purposes of issue preservation.

Considerations in Plea Cases: Issue Preservation Versus Issue Reservation

There are limited ways to avoid the guilty plea waiver on direct appeal.[7] “An issue raised on an appeal from a guilty plea must be preserved by an objection, a motion to withdraw the plea, or a motion for a new trial.”[8] As with all properly preserved issues, they must first be brought to the trial court’s attention.[9]

One area of possible confusion deals with reserving and preserving issues for appeal in plea cases. In the case of a guilty plea, the defendant can avoid the normal guilty plea waiver rule by “expressly reserv[ing] the right to appeal with respect to a particular issue or issues.”[10]

Simply put, reserving an issue for appeal means placing the trial court on notice that the defendant intends to appeal a particular issue before the defendant enters their guilty plea.[11]

Practically speaking, the trial practitioner makes a record during the plea hearing that a specific issue will be appealed prior to the defendant’s guilty plea. In addition to making the appropriate record at the plea hearing, however, a diligent trial attorney can also memorialize the reserved issue on any plea agreement filed with the trial court. If applicable, they can also ensure that the standard form felony sentencing order appropriately reflects that an issue has been preserved for appeal.[12]

While making a specific record of the reserved issue is by far the preferred method to ensure that the guilty plea waiver rule does not prevent an appeal, our caselaw recognizes a limited exception. That is when the record, taken as a whole, demonstrates the trial court understood that the defendant had reserved an issue for appeal.[13] As an example, in Mullins v. State, the Alabama Supreme Court held that the record overall indicated a reserved issue based on the trial court’s comments at the conclusion of the plea hearing, sentencing, and at a plea withdrawal hearing.[14] Thus, based on all of the court’s comments on issue reservation, the record demonstrated that the court understood that the defendant intended to appeal a suppression issue.[15] But this search of the record for a “pre-plea reservation of the right to appeal” as Ex parte Mullins put it, is the exception not the rule.[16]

Properly reserving the issue is just one of the two necessary steps to overcome the guilty plea waiver rule for appeal. Take, for example, Mitchell v. State.[17] There, at the plea hearing, trial counsel made a record that the defendant intended to appeal the interpretation of a drug manufacturing statute.[18] Counsel also memorialized the reserved issue on the plea agreement.[19] All good, right? Not the case. Instead, the Alabama Court of Criminal Appeals refused to address the reserved issue indicating that “Mitchell never presented [the] issue . . . to the trial court before reserving it for appeal.”[20] As the court of criminal appeals succinctly put it, “[r]eserving the right to appeal an issue is not the equivalent of preserving an issue for appellate review. To preserve an issue for appellate review, the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained.”[21]

Thus, both steps must be taken to properly pursue an issue on appeal following a guilty plea: (1) raise the issue to the trial court and obtain an adverse ruling and (2) place the trial court on notice of the intent to appeal the issue before the defendant enters their guilty plea.[22] For example, in the context of a Fourth Amendment issue, this means that counsel needs to do three things: (1) file a motion to suppress; (2) get a ruling on the motion; and (3) properly reserve the issue before the client pleads guilty.

Preserving the Record at Trial

There are four basic considerations in preserving the record at trial: (1) object on the record;[23] (2) make the objection timely, preferably before the objectionable evidence is introduced;[24] (3) state specific grounds;[25] and (4) obtain an adverse ruling.[26]

In addition to these four basic considerations, the circumstances of trial and the issue in play often dictate additional considerations for preserving the record.

Objecting on the record would seem to be a simple task during trial. But as any experienced practitioner knows, this is not always the case. Sidebars are often a necessary occurrence during a trial to flesh out objections without engaging in the type of speaking objections that judges despise. During these sidebars, defense counsel often asserts their grounds to an objection and the trial court may make findings or a ruling outside the earshot of the court reporter. Remember, if it does not appear in the record, it did not occur for the purposes of appeal.[27] This means that unless the court reporter was party to the sidebar, your carefully crafted argument is unknown for purposes of appeal.[28] Sidebars must be recounted on the record as soon as possible – typically the next time that the jury is not in the courtroom.

The timeliness of objections is also key to issue preservation. In general, an objection must be made as soon as the grounds are apparent.[29] This means that when, for example, an objection comes after a witness has already responded to an objectionable question, nothing has been preserved for appeal.[30] The only way to remedy this is both to object and to move to strike the witness’s response to the objectionable question.[31]

Take, for example, a not so uncommon exchange from Gross v. State, between the prosecution and the defendant’s alibi witness:

[State:] How long have you known this defendant, Tommy Gross? How long have you known him?

1. Well, I have known him ever since he has got [sic] out of jail.

(Defense Counsel): I object.

THE COURT: Well, it was responsive.[32]

In the above example, the State’s question was not objectionable. However, the witness’s response drew an objection. But as the Alabama Court of Criminal Appeals stated: “Since defense counsel did not move to exclude the witness’s response, it was properly before the jury.”[33]

The Gross v. State exchange also suffers from two additional problems that demonstrate the third and fourth general considerations for issue preservation at trial: no specific grounds were stated, and the circuit court avoided ruling on the objection. Saying, “I object” at trial preserves nothing for appeal.[34] Instead, specific grounds for the objection must be stated.[35] And recall that the specifically stated grounds for the objection waive all possible other grounds.[36]

This is particularly important for objections to Rule 404(b) evidence. Objections to Rule 404(b) evidence need to be as comprehensive as possible and based on both the text of Rule 404(b) and caselaw interpreting the Rule and its requirements.[37] Because the specific objection waives all other arguments and “the appellant is bound by the specific objections made at trial and cannot raise new grounds on appeal, an objection that proffered evidence is inadmissible because it is does not meet an acceptable purpose under Rule 404(b) does not preserve arguments that the evidence is necessary to the government’s case; unduly and unfairly prejudicial; plain, clear, and conclusive; and answers a real and open issue for an acceptable purpose.[38]

Thus, when multiple grounds for an objection exist, stating all possible grounds opens possibilities on appeal that otherwise do not exist when just one ground is stated. Finally, the appellate courts will not review any issue unless an adverse decision from the trial court appears in the record.[39] So, the response in Gross of “Well, it was responsive[]” fails to meet the adverse ruling requirement as well.

In addition to these four general principles of issue preservation at trial, there are several other pitfalls to avoid in the trial court:

• Insufficient proffers of excluded evidence: The substance of any excluded evidence must appear in the record on appeal.[40] Ideally, trial counsel would not only submit the excluded evidence, but would also specifically argue the significance of the excluded evidence to the defense case. Trial counsel can ensure that excluded evidence makes it into the appellate record usually by presenting a witness’s testimony outside the presence of the jury, proffering the substance of a witness’s testimony, or submitting the excluded exhibit (think pictures, audio, and video evidence) as a court’s exhibit to be included in the record.
• Failure to renew objections at trial: a pretrial ruling on a motion in limine will generally not preserve anything for appellate review.[41] As the Alabama Supreme Court put it, “unless the trial court’s ruling on the motion in limineis absolute or unconditional, the ruling does not preserve the issue for appeal.”[42] As an example, consider a trial court’s pretrial ruling on the State’s motion to introduce Rule 404(b) evidence over defense objection. The safest route to ensure issue preservation is to object at trial to the Rule 404(b) evidence at the time the State starts to admit it. Only if trial counsel has “obtained express acquiescence of the trial judge that such subsequent objection to evidence proffered at trial and assignment of grounds are not necessary[]” should an objection at trial be foregone.[43]
• Insufficient and late objections to jury instructions: Often, specifically requested jury instructions are not filed in the case and thus do not appear in the record. This can pose a problem if the specific language of a denied instruction is not read into the record during the charging conference. Thus, the best practice is to file all requested instructions in the circuit court to ensure a complete record on appeal. In addition, an argument in favor of a requested charge on grounds that the charge is merely a correct statement of the law does not preserve anything for appeal.[44] Instead, trial counsel’s argument in favor of a requested charge must be specific to the facts of the case.[45] Finally, all objections to jury instructions must be made before the jury retires to deliberate.[46]  
• Insufficient record on Batson[47] claims: At the outset, the timing of a Batson objection is specifically addressed in the caselaw and requires trial counsel to object “after the peremptory strikes have been made, but prior to the jury’s being sworn.”[48] In addition to this timing consideration, the strength of any Batson claim depends on a carefully supported claim and a record that contains clear information on characteristics of the panel and the struck jurors whether they relate to race, gender, religion, or national origin. Remember that the juror seating chart and jury list with biographical information won’t appear in the appellate record unless specifically entered as a court’s exhibit. This means that trial counsel must make special efforts to include this information, make sure that the juror numbers and corresponding identifying information is in the record, and make a highly detailed record considering all circumstances relevant to the challenged strike pattern or disparity.

Preserving the Record at Probation Revocation Hearings

The rules of issue preservation all generally apply to probation revocation hearings.[49] There are, in fact, just three issues in the probation revocation context that can be raised on appeal even without an objection in the trial court.[50] These include: (1) an adequate written order on revocation, (2) that a revocation hearing actually be held, and (3) failure to advise a defendant of his right to request an attorney for the revocation proceedings.[51] Constitutional issues such as lack of procedural due process must be properly preserved to be raised on appeal.[52]

As for some issues to watch for and preserve in probation revocation cases, consider that the Alabama Court of Criminal Appeals frequently reverses revocation determinations based on the State’s presentation of hearsay alone.[53] Thus, while hearsay is admissible in probation revocation proceedings,[54] the State must submit non-hearsay evidence to specially connect the defendant to an alleged new offense.[55] At the close of the evidence and in argument in support of continuing probation, trial counsel must specifically make this argument when applicable to allow appellate review.

If an argument is not made at the close of evidence, consider filing a motion to reconsider probation revocation to raise the issue to the trial court. However, as a practical pointer, a motion to reconsider probation revocation does not stay the 42-day deadline to file the notice of appeal, which starts running from the court’s oral ruling on revocation.[56]

Post-trial Motions and Other Considerations

After trial and sentencing, the defendant has 30 days to file a motion for new trial.[57] But generally, issues raised for the first time in a motion for new trial are insufficient to preserve the claim for appeal. The Alabama Court of Criminal Appeals explains it this way:

[A] new trial will not be granted for matters pertaining to rulings, evidence, or occurrences at a trial, including erroneous conduct on the part of the court, counsel, or jury, unless timely and sufficient objections, requests, motions, or exceptions have been made and taken. Any grounds which might have been afforded by such matters are presumed to have been waived, except where such matters were unknown to applicant until after verdict and could not have been discovered by the exercise of reasonable diligence, and except in instances of fundamental errors which of themselves invalidate the trial.[58]

Take note, however, that claims of insufficient evidence or weight of the evidence can be raised in a motion for new trial to preserve these issues for appeal.[59]

Moreover, issues of ineffective assistance of trial counsel (IATC) can be raised in a motion for new trial to preserve these issues for direct appeal. However, counsel should be extremely wary in raising IATC at this early and almost certainly premature phase. Because the 30-day deadline to file a motion for new trial cannot be extended, the transcripts are almost never available before the motion for new trial is due. And a 30-day period is too limited to properly investigate IATC claims. Clients should almost always be advised that IATC claims are improper, perhaps even detrimental, at this stage and must be raised only in a timely Rule 32 Petition.[60]

Finally, on a procedural sticking point, the Alabama Rules of Criminal Procedure dictate that a timely motion for new trial is denied by operation of law if not decided within 60 days from the oral pronouncement of sentence.[61] If a hearing is necessary on the claims raised in the motion for new trial and the denial by operation of law deadline is approaching, this decision deadline can be extended only by “express consent of the prosecutor and the defendant’s attorney” on the record to a “date certain.”[62] The denial by operation of law date needs to be carefully monitored by counsel as the 42-day deadline to file a notice of appeal starts running as soon as the motion for new trial is denied.[63]

Conclusion

Preserving the record on appeal is something of an art form. It requires deep knowledge of the rules of issue preservation, attention to detail, and quick and specific objections. We hope this piece provides a refresher for the seasoned practitioner and a jumping off point for the newer attorney. An appeal is only as strong as the trial record and that depends largely on defense counsel’s tenacity in the trial court.

Endnotes

[1] A Westlaw search using the terms and connectors “not /5 preserved” reveals more than 2,000 cases (over 1,400 of those from the Alabama Court of Criminal Appeals) involving unpreserved issues.

[2] RULE 45, Ala. R. App. P. (effective January 12, 2023); see also Iervolino v. State, __ So. 3d __, 2023 WL 5316682 at *5 (Ala. Crim. App. Aug. 18, 2023) (addressing changes to Rule 45 and the Alabama Court of Criminal Appeals’ approach to plain error review).

[3] Ex parte Coulliette, 857 So. 2d 793, 794 (Ala. 2003) (“Review on appeal is restricted to questions and issues properly and timely raised at trial.”).

[4] McKinney v. State, 654 So. 2d 95, 99 (Ala. Crim. App. 1995) (quoting Buice v. State, 574 So. 2d 55, 57 (Ala. Crim. App. 1990).

[5] Ex parte Frith, 526 So. 2d 880, 882 (Ala. 1987) (citing State v. Holloway, 307 So. 2d 13 (1975)); Murray v. State, 494 So. 2d 891 (Ala. Crim. App. 1986)).

[6] Ex parte Works, 640 So. 2d 1056, 1058 (Ala. 1998) (citing Jennings v. State, 558 So. 2d 540, 541 (Ala. Crim. App. 1991))

[7] Watkins v. State, 659 So. 2d 688, 689 (Ala. Crim. App. 1994) (“[W]e have held that a defendant may waive his right to appeal as part of a negotiated plea agreement so long as he is fully advised of its implications and he voluntarily agrees to enter into the agreement.”). For a discussion of how the guilty plea waiver does not bar review of the voluntariness of the waiver, the voluntariness of the plea, or issues of ineffective assistance of counsel see Love v. State, 365 So. 3d 344, 346-48 (Ala. Crim. App. 2022).

[8] Cochran v. State, 808 So. 2d 1226, 1227 (Ala. Crim. App. 2000) (citing Willis v. State, 500 So. 2d 1324, 1324 (Ala. Crim. App. 1986)).

[9] See id. (quoting Anderson v. State, 668 So. 2d 159, 162 (Ala. Crim. App. 1995)).

[10] Rule 14.4(a)(1)(viii), Ala. R. Crim. P.

[11] Rule 26.9(b)(4), Ala. R. Crim. P.

[12] See State of Alabama, Unified Judicial System Felony Sentencing Order, Section VIII, available at https://eforms.alacourt.gov/media/mmjfxnac/felony-sentencing-order.pdf.

[13] Ex parte Mullins, 920 So. 2d 589 (Ala. 2005).

[14] Id. at 590.

[15] Id.

[16] See id.

[17] Mitchell v. State, 913 So. 2d 501 (Ala. Crim. App. 2005).

[18] Id. at 504.

[19] Id. at 503-04.

[20] Id. at 504.

[21] Id. at 505.

[22] Id.

[23] Rule 103, Ala. R. Evid.

[24] Id.

[25] Id.

[26] Click v. State, 695 So. 2d 209, 227 (Ala. Crim. App. 1996).

[27] Jefferson v. State, 449 So. 2d 1280, 1282 (Ala. Crim. App. 1984) (“If counsel makes objections and secures rulings ‘off the record,’ this court cannot consider those rulings. If the trial court hears objections and makes rulings in side-bar conferences only, then the court reporter must be a party to the side-bar conference if the actions of counsel and the court are to be recorded. Our review is limited to matters of record.”).

[28] See Russell v. State, 272 So. 3d 1134, 1165 (Ala. Crim. App. 2017) (quoting Jefferson, 449, So. 2d at 1282).

[29] Hinson v. King, 603 So. 2d 1104, 1105 (Ala. Civ. App. 1992) (citing Macon Cnty. Comm. v. Sanders, 555 So. 2d 1054 (Ala. 1990)).

[30] Cassady v. State, 563 So. 2d 53, 53 (Ala. Crim. App. 1990) (quoting Davis v. Southland Corp., 465 So. 2d 397, 402 (Ala. 1985)).

[31] Gross v. State, 395 So. 2d 485, 487-88 (Ala. Crim. App. 1981) (quoting Willingham v. State, 74 So. 2d 241 (Ala. 1954)).

[32] Id.

[33] Id. at 488.

[34] See Langford v. State, 312 So. 2d 65, 69-70 (Ala. Crim. App. 1975).

[35] Id.

[36] See supra note 5.

[37] See Floyd v. State, 289 So. 3d 337, 395-404 (Ala. Crim. App. 2017) (discussing the requirements for 404(b) evidence to be admissible in general and as applied to Floyd).

[38] Id. at 396-98; Chapman v. State, 196 So. 3d 322, 329 (Ala. Crim. App. 2015)

[39] Click, 695 So. 2d at 227 (quoting Hudgins v. State, 65 So. 2d 1297, 1299 (Ala. Crim. App. 1993)).

[40] Rule 103(a)(1), Ala. R. Evid.

[41] Perry v. Brakefield, 534 So. 2d 602, 606 (Ala. 1988) (quoting Robinson v. Kierce, 513 So. 2d 1005, 1009 (Ala. 1987)).

[42] Id.

[43] Id. (quoting Robinson, 513 So. 2d at 1009).

[44] Knight v. State, 710 So. 2d 511, 513 (Ala. Crim. App. 1997) (“The ground that a jury instruction is a correct statement of the law is insufficient to preserve an objection to the trial court’s refusal to give the instruction.”).

[45] Id.

[46] Johnson v. State, 168 So. 3d 163, 167 (Ala. Crim. App. 2014).

[47] Batson v. Kentucky, 476 U.S. 79 (1986).

[48] Williams v. State, 530 So. 2d 881, 884 (Ala. Crim. App. 1988) (emphasis in original).

[49] Puckett v. State, 680 So. 2d 980, 983 (Ala. Crim. App. 1996) (Taylor v. State, 600 So. 2d 1080, 1081 (Ala. Crim. App. 1992)).

[50] Evans v. State, 794 So. 2d 1234, 1236-37 (Ala. Crim. App. 2000).

[51] Id. at 1236-37.

[52] Id. at 1236.

[53] See Glasscock v. State, __ So. 3d __, 2023 WL 1935341 (Ala. Crim. App. Feb. 10, 2023).

[54] Beckham v. State, 872 So. 3d 208, 211 (Ala. Crim. App. 2003); see also Rule 1101(b)(3), Ala. R. Evid.

[55] Glasscock, 2023 WL 1935341 at *2.

[56] Wank v. State, 18 So. 3d 972, 973 (Ala. Crim. App. 2009).

[57] Rule 24.1(b), Ala. R. Crim. P.

[58] Fuller v. State, 365 So. 2d 1010, 1012 (Ala. Crim. App. 1978).

[59] Zumbado v. State, 615 So. 2d 1223, 1241 (Ala. Crim. App. 1993) (also addressing other proper methods to preserve a sufficiency of the evidence claim).

[60] See Ex parte Ingram, 675 So. 2d 863, 866 (Ala. 1996) (doing away with extensions of time for newly appointed counsel to investigate IATC for the motion for new trial).

[61] Rule 24.4, Ala. R. Crim. P.

[62] Id.

[63] Ex parte Holderfield, 255 So. 3d 743, 744 (Ala. 2016).

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