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RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald
PRESERVATION OF THE RECORD
SUP. CT. R. CRIM. P. 51: Exceptions Unnecessary
Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or his or her objection to the action of the court and his or her grounds therefore if requested; and if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party. With the consent of the court a party may object to an entire line of testimony, or to the entire testimony of a witness, or to testimony on a single subject matter, and if such objection shall be overruled, it shall not be necessary for the party to repeat his or her objection thereafter, but every part of such testimony thereafter introduced shall be deemed to have been duly objected to and the objection overruled.
R.I. R. EVID. 103. Rulings on Evidence
Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Record of Offer and Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
State v. Morey, 722 A.2d 1185 (R.I. 1999). In a child-molestation case, the prosecutor attempted to elicit information from the complainant’s mother about his prior consistent statements. Defense counsel made two isolated objections when the prosecutor laid the foundation for the statements, but did not object to the specific questions that elicited this information. R.I.S.C. ruled that the issue was not properly preserved for appeal.
“Thus, the two isolated objections were not made in a timely manner when the specifically challenged testimony was being elicited. Therefore, the defendant’s challenge to the testimony of Mrs. White was not preserved properly in the record and cannot be the subject of our review on appeal.” Id. at 1188.
State v. Disla, 874 A.2d 190 (R.I. 2005). Trial justice denied defendant’s Rule 29 motion and he was convicted of delivery of a controlled substance and conspiracy to deliver. R.I.S.C. vacated defendant’s conspiracy conviction.
When renewing a Rule 29 motion following the state’s rebuttal witness, defense counsel did not specify the grounds for objection, but merely assented when the court asked, “same grounds?” Although in this case the nature of the objection was clear to the trial court, R.I.S.C. cautioned counsel should “specify clearly for the record the nature of their objections or motions to preserve their clients’ rights on appeal.” Id. at 196.
State v. Snell, 892 A.2d 108 (R.I. 2006). Defendant argued that he was compelled to appear in his prison uniform before the jury and it prejudicially created an inference that he possessed a criminal disposition. R.I.S.C. agreed that defendant’s constitutional right to a fair trial was violated, but held that defendant failed to preserve the issue for appeal.
“.the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” Defendant’s “silence precludes any suggestion of compulsion.” Id. at 116 (quoting Estelle v. Williams, 425 U.S. 501, 512-13 (1976)).
A defendant’s objection to wearing a prison uniform at trial is timely if made before any prejudice can emanate from his appearance in the uniform. Thus, it must be made prior to his appearance before the jury.
State v. Remy, 910 A.2d 793, 800 (R.I. 2006). “A defendant is required to make a request for cautionary instructions or move for a mistrial in order to preserve for review by this Court a question concerning alleged prejudicial error in a closing argument; a mere objection is insufficient. A defendant need not request a cautionary instruction or move for a mistrial to preserve such an issue for appeal, however, if the request for cautionary instructions would have been futile or the attempt to cure the prejudice would have been ineffective.”
State v. Grullon, 984 A.2d 46 (R.I. 2009). Defendant objected to state’s request to admit a bag of cocaine into evidence due to lack of evidence to establish chain of custody. The trial judge conditionally admitted the bag and stated that defendant could renew the objection if chain of custody evidence was insufficient. When defendant failed to renew his objection, he waived any right to challenge the bag’s admission on appeal.
Additionally, for ineffective assistance of counsel to be arguable on direct review, defendant must raise an objection about his trial counsel or any conflict of interest during trial. Otherwise, it is reserved strictly for application of post-conviction relief.
State v. Nelson, 982 A.2d 602 (R.I. 2009). Defense counsel properly preserved issue of improper judicial interrogation for review. Although defendant never objected during the interrogation, he did so out of courtesy to the judge and requested to be heard at sidebar immediately after, where he then stated his objection and placed his specific reasons for objection on the record.
State v. Wiggins, 919 A.2d 987 (R.I. 2007). In probation revocation hearing, defendant failed to preserve his allegation that the hearing justice erred by vacating, sua sponte, defendant’s admission to probation violation in exchange for a lighter sentence. Defense counsel did not raise an objection when the admission was vacated or at the violation hearing. R.I.S.C. affirmed.
The court articulates one very narrow exception to their well-settled “raise or waive” rule:
“This Court will review unpreserved assignments of error, as an exception to our raise-or-waive rule, when they implicate “basic constitutional rights,’ and further satisfy three conjunctive elements: “First, the error complained of must consist of more than harmless error. Second, the record must be sufficient to permit a determination of the issue…. Third, counsel’s failure to raise the issue at trial must be due to the fact that the issue is based on a novel rule of law of which counsel could not reasonably have known at the time of trial.’” Id. at 991 n. 3 (quoting State v. Feliciano, 901 A.2d 631, 647 (R.I. 2006)).
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