Advocacy In DUI Cases – 2

Advocacy In DUI Cases – 2

McCormic v. Smith, 659 S.W.2d 804, 806 (Tenn.1983). In modern appellate practice, the requirement of filing a motion for a new trial to preserve most errors is governed by Rule of Appellate Procedure 3(e), which reads in relevant part,

[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived.

Although Rule 3(e) requires that the grounds for the motion be “specifically stated,” the Rule is silent as to how specific these grounds must be. Decisions from this Court have long stated the standard for specificity as being “as specific and certain as the nature of the error complained of will permit.” Johnson, 114 Tenn. at 643, 88 S.W. at 170; see also McCormic, 659 S.W.2d at 805 (acknowledging that Johnson has survived the enactment of the Rules). While this standard says little more than does Rule 3(e) itself, several principles may be determined from the Rules and case law as to the degree of specificity needed in a motion for new trial to properly preserve issues for appeal.

First, the motion should contain a concise factual statement of the error, “sufficient to direct the attention of the court and the prevailing party to it.” Johnson, 114 Tenn. at 644, 88 S.W. at 170-71. Under this standard, it is clearly improper to simply allege, in general terms, that the trial court committed error, either by taking some action or by admitting or excluding evidence; [FN6] rather, the motion should identify the specific circumstances giving rise to the alleged error so that it may be reasonably identified in the context of the entire trial. See State v. Ashburn, 914 S.W.2d 108, 114 (Tenn.Crim.App.1995). Accordingly, a well-drafted motion alleging improper admission or exclusion of testimony, for example, should identify the witness giving the testimony and provide a short and plain summary of the testimony improperly admitted or excluded. Moreover, a well-drafted motion alleging error in the jury instructions should set forth the language of the instruction given by the court and the language of the instruction rejected by the court if an alternative instruction was requested. FN6. See, e.g., Cloyd v. State, 202 Tenn. 694, 696, 308 S.W.2d 467, 468 (1957) (“[C]ertain evidence was improperly submitted to the jury.”); Loeffler v. Kjellgren, 884 S.W.2d 463, 472 (Tenn.Ct.App.1994) (“The trial court erred in jury instructions in the second trial.”); State v. Gauldin, 737 S.W.2d 795, 798 (Tenn.Crim.App.1987) (“The instructions given by the court to the jury were unclear and confusing.”). Second, as it is well-settled in law that a general objection is usually not sufficient to assign error, Tenn. R. Evid. 103(a)(1); Jack M. Bass & Co. v. Parker, 208 Tenn. 38, 48, 343 S.W.2d 879, 883 (1961), the motion should also contain a specific legal ground alleged for the error. Accordingly, in addition to setting forth a concise statement of the factual grounds, a well-drafted motion for a new trial should also identify, with reasonable clarity, the legal ground upon which the trial court based its actions and contain a concise statement asserting the legal reasons why the court’s decision was improper. However, because motions for a new trial should not be expanded “into all the voluminosity of ‘briefs’ and printed arguments,” National Hosiery & Yarn Co. v. Napper, 124 Tenn. 155, 171, 135 S.W. 780, 784 (1911), the movant is not required to identify such errors in the motion with the same precision expected in the appellate courts. Therefore, precise citation to a rule, statute, or case as the legal ground for the alleged error is normally not required to preserve the issue for appeal under Rule 3(e), although to the extent that citation to authority aids in fairly bringing the legal nature of the error to the attention of the trial judge, such a practice ought to be encouraged. [FN7] FN7. This is not to say that the trial court cannot require precise citation to authority in considering a motion for a new trial. It is only to say that such precision is not otherwise required to preserve the error for appeal under Rule 3(e), so long as the legal ground for the alleged error is clearly and fairly presented to the trial court. Finally, Rule of Appellate Procedure 1 provides that the Rules “shall be construed to secure the just, speedy, and inexpensive determination of every proceeding on its merits.” Accordingly, when an appellate court reviews a motion for a new trial under Rule 3(e), it should view the motion in the light most favorable to the appellant, and it should resolve any doubt as to whether the issue and its grounds were specifically stated in favor of preserving the issue. Any other method of review would result in needlessly favoring “technicality in form” over substance, a practice specifically discouraged by the comments to Rule 1. Thus, while courts cannot find error where none has actually been alleged, no matter how liberal a construction is given to the motion, Jacks v. Williams-Robinson Lumber Co., 125 Tenn. 123, 128-29, 140 S.W. 1066, 1067 (1911) (“But this court will not search the record at large to find errors. The presumption is that the judgment of the lower court is correct. The burden is upon the appellant to specifically point out the errors complained of, and affirmatively show that they exist.”), courts may not deem a motion for a new trial insufficient to preserve errors for appeal merely because it fails to enumerate specific issues. Accordingly, just as parties must endeavor to specifically state the issues raised so as to avoid any potential for future waiver, appellate courts should not lightly dismiss an issue on appeal under a strict or technical application of Rule 3(e).”

4. Grounds: (waiver if not raised, except for “plain error”)

Discussion. The most frightening example of the consequences of failing to raise what at least one set of state lawyers thought was a “frivolous” issue involved Machetti and Smith. They were husband and wife who were tried together by the same jury and both given death sentences. The upshot of the opinions is that the husband (Smith) was executed and the wife (Machetti) lived due to the preservation of the jury composition issue. Machetti v. Linahan, 679 F.2d 236 (11th Cir. 1982), cert. denied, 459 U.S. 1127 (1983) (state jury selection procedure that permitted any woman who did not wish to serve on a jury to opt out merely by sending notice to the jury commissioners deprived petitioner of her right to an impartial jury trial); Smith v. Kemp, 715 F.2d 1459 (11th Cir.), cert. denied, 464 U.S. 1459 (1983) (petitioner waived right to object to jury composition by failing to assert issue at trial).

State v. Ogle, 666 S.W.2d 58 (Tenn. 1984). State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994) (plain error requires that the record clearly established what occurred in the trial court, a clear rule of law must have been violated, the substantial right of the defendant must have been adversely affected, the defendant did not waive the issue for technical reasons, and consideration of the error is necessary for substantial justice; extensive discussion of issue); State v. Smith, 24 S.W.3d 274 (Tenn. 2000) (extensive discussion in determining whether an error constitutes ‘plain error’ in the absence of an objection at trial: (a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is necessary to do substantial justice); State v. West, 19 S.W.3d 753 (Tenn. 2000) (plain error doctrine does not apply to post-conviction relief petitions).

5. Tactics: shotgun it in motion for new trial

6. Trial brief

7. Have a hearing, introduce proof, make a part of record

I. Motion for judgment of acquittal

1. Sufficient evidence is raised with this motion

4. NOTICE OF APPEAL

A. When filed (30 days), exception for “interests of justice”

B. Where filed: trial court clerk ( Serve copies on D.A.and State A.G.,)

5. RECORD ON APPEAL (Rules 24, T.R.A.P.)

A. Getting it up. YOUR RESPOSIBILITY !!!

DESIGNATION OF RECORD

FOR PURPOSES OF APPEAL

Pursuant to Rule 24, Tennessee Rules of Appellate Procedure, the defendant/appellant, Jerome Wray, hereby designates those portions of the record for purposes of his appeal. The defendant/appellant specifically designates the trial transcript contemporaneously filed herewith consisting of the entire trial proceedings as necessary for his appeal. The defendant/appellant also designates all exhibits filed in this matter, whether they were numbered exhibits or merely exhibits marked for identification only, with no distinction to be made as to whether same was considered by the Court or not as evidence in chief for either party. All exhibits introduced by either side, whether for identification purposes or not, shall be included in the record. The defendant/appellant specifically designates copies of all papers filed in the trial court, including the originals of any exhibits, all motions, pleadings, petitions, answers, and orders of every sort entered by the trial court, along with all appropriate minute entries. All trial briefs or memoranda filed by either side must be included. The defendant/appellant specifically excludes from the appeal any subpoena or summons or any witness as being unnecessary to the issues being contested.

B. Designation of record, Rule 24, T.R.A.P Where less than complete transcript is to be filed, appellant shall file a description of parts of the transcript to include in the record and a declaration of the issues intended to be presented on appeal. . State v. Peak, 823 S.W.2d 228 (Tenn. Crim. App. 1991) (trial judge has authority to require parties to designate portions of the record that will be prepared and submitted to appellate court, but may not dismiss an appeal as means of settling any controversy over designations of portions of the record);

C. Appellee has 15 days after service of the description and declaration to designate additional parts to be included.

D. Order transcript REMEMBER COURT REPORTER DOES NOT TYPE UP THE ENTIRE TRIAL UNLESS YOU SPECIFY WHAT YOU WANT..INCLUDE THE ENTIRE TRIAL INCLUDING ARGUMENTS.

E. Narrative transcript State v. Marbury, 908 S.W.2d 405 (Tenn. Crim. App. 1995) (the narrative statement of the evidence instead of a transcript did not contain any statement that the defendant was the person arrested, the failure of the state to file an objection precluded a finding that the evidence was sufficient to sustain the verdict).

F. Make sure the whole thing is there. GO TO THE TRIAL COURT CLERKS’S OFFICE !!!!!!!!!!!! See also State v. Gourley, 680 S.W.2d 483 (Tenn. Crim. App. 1984) (remand for further proof where state failed to introduce proof regarding a search question). State v. Hopper, 695 S.W.2d 530 (Tenn. Crim. App. 1985) (court refused to consider issues where transcript not prepared relating to search and confession questions; motion to supplement record denied under facts of case); State v. Meeks, 779 S.W.2d 394 (Tenn. Crim. App. 1988) (absence of transcript of sentencing hearing precluded criminal appellate court from considering propriety of sentencing court’s decision not to suspend sentence); State v. Coolidge, 915 S.W.2d 820 (Tenn. Crim. App. 1995) (in the absence of a record and particularly that portion which relates to the sentence, the appellate court must presume that the sentence imposed by the trial judge was correct).

E. Supplement record, Rule 24, T.R.A.P. State v. Blevins, 736 S.W.2d 120 (Tenn. Crim. App. 1987) (the appellate court may permit a late filing of a transcript when it does not prejudice either party to the proceeding and a good faith effort was made to timely file the transcript in the first place).

F. Post Judgment Facts Tenn. R. App. P. 14. See the discussion in Duncan v. Duncan, 672 S.W.2d 765 (Tenn.1984). State v. Branam, 855 S.W.2d 563 (Tenn. 1993) (evidence that witness told police of direct involvement in murder of person charged as accessory before fact, which evidence defendant contended he did not discover until a year after his trial because prosecution failed to provide it during pretrial discovery, was admissible under rule authorizing Supreme Court to consider post judgment facts on appeal, and remand was required to determine whether violation of due process occurred; alleged facts, if proven correct, concerned matter that could not have been contested at defendant’s trial since evidence was unconstitutionally withheld from defense).

G. Filing Of The Transcript (Tenn. R. App. P. 24(b)) Must be filed with the trial court clerk within 90 days after filing the notice of appeal. Appellant must simultaneously file notice of filing on State

H. Filing Of Record In Appellate Court (Tenn. R. App. P. 25(a).Must be “completed” by trial court clerk within 45 days after filing of transcript or, if no transcript filed, within 45 days after notice that no transcript will be filed. An extension of 15 days may be granted.

6. APPELLATE BRIEF (Rule 27, T.R.A.P.)

A. Follows rules as to form

1. Cover sheet (ORAL ARGUMENT REQUESTED)

2. Table of contents

3. Table of authorities

4. Jurisdiction for direct appeal to Supreme Court

5. Statement of issues

(a) Cut it down to size (no duty to raise everything v. waiver)

(b) Be precise

(c) Put best issue first

6. Statement of case

7. Statement of facts – cite to record

8. Argument

(a) Summary of argument (important for cold court)

(b) Reasons why appellate relief is sought

(c) Case citations (Rocket Rule; no cite, no relief)

9. Conclusion at end, what do you want?

10. Reproduction of rules, statutes or constitution (whole thing)

11. Reference to record in briefs (abbreviate or set out)

(a). Waiver if they can’t find it

12. Citation format

(a). Full citation, including court and date

(b). All citations, such as L.Ed.2d and S.Ct. and U.S.

(c). Page citations (where is it?)

(d). Unpublished opinions (reproduce them)

B. How to draft a specific issue

1. Raybin’s Rule: Citation should have the content or holding of case after the citation unless the case is point of the argument; quote liberally from the case

2. Division of long arguments within a single issue

3. Reproduce exhibits in brief v. appendix

4. Tactics:

(a) State issue again

(b) How it came up, what are the facts?

(c) Proper objection was made

(d) What is the law? Do my facts fit the law?

(e) How it hurt client VERY IMPORTANT

(f) Harmful or harmless error

(1) Error to judicial process without prejudice: Claybrook, 736 S.W.2d 95 (jury selection); Perry, 740 S.W.2d 723 (jury misconduct). Otherwise you must show prejudice.

(2) Degree of harm: Martin, 702 S.W.2d 560 (closeness of facts, error not harmless)

Discussion: Harmless error analysis requires an examination of the type of error involved because of the different burden of proof requirements. In State v. Harris, 989 S.W.2d 307, 314 -315 (Tenn. 1999) the Court held that:

“To resolve the issue in this appeal we must first determine whether the error complained of is constitutional or statutory. The answer to this question is important because the test for harmlessness of constitutional errors differs from that for non-constitutional errors. First, once a constitutional error is found, the burden shifts to the State to prove harmlessness; the burden does not shift to the state for non-constitutional errors. Second, the standard which applies to assess the harm or prejudice resulting from constitutional errors is more exacting than the standard which applies to non-constitutional errors. …For example, in Tennessee, non-constitutional errors will not result in reversal unless the error affirmatively appears to have affected the result of the trial on the merits, or considering the whole record, the error involves a substantial right which more probably than not affected the judgment or would result in prejudice to the judicial process. Tenn.R.Crim. P. 52(a); Tenn. R.App.P. 36(b), State v. Cook, 816 S.W.2d 322, 326 (Tenn. 1991); State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998). In contrast, a constitutional error will result in reversal unless the reviewing court is convinced “beyond a reasonable doubt” that the error did not affect the trial outcome. Chapman v. California, 386 U.S. 18, 87 S.Ct 824, 17 L.Ed.2d 705 (1967); Howell, 868 S.W.2d at 260; Cook, 816 S.W.2d at 326; Tenn.R.Crim. P.52(a).”

(g) A brief conclusion at end of each issue

(h) Underline important points

(i) Use of color; tabs

5. Does the brief make sense?

C. Color of brief

1. Blue (us)

2. Red (them)

E. Certificate of Service

1. Send to Attorney General, not D.A.

2. Send to client and his or her family

F. APPELLANT’S BRIEF (Tenn. R. App. P. 29(a)):

Filed within 30 days after record is filed.

G. APPELLEE’S BRIEF (Tenn. R. App. P. 29(a)):

Filed within 30 days following service of appellant’s brief.

H. APPELLANT’S REPLY BRIEF (Tenn. R. App. P. 29(a)):

Filed within 14 days after service of “preceding brief.”

7 ORAL ARGUMENT (Tenn. R. App. P. 35(b) Should be requested when brief filed

A. When to argue

B. Prepare day before – think about your case

C. Write an outline of argument

D. Practice it

E. Time 20 minutes in C.C.A.; 30 in Supreme Court

F. Reserve 5 for rebuttal

G. Cut your issues down to 3 or 4

H. Your Court will be cold; or at least lukewarm

I. Don’t bring your whole file up with you

J. Introduce self

K. Brief history of case

L. Tell them what your issues are that you will argue

M. Start with first issue

1. What’s the problem?

2. What are the facts? know your facts

3. What’s the law?

4. How were you hurt?

5. What do you want?

N. Stay in the record

O. Don’t read your brief

P. Questions from the Court; invite questions

Q. Quote from cases they wrote if possible

R. Stop when you are ahead

S. Go on to next issue

T. Rebuttal: Don’t always use it

8. BOND IF YOU WIN

A. State v. Owen, July 10, 1989, CCA at Knoxville

9. PETITION TO REHEAR

A. Time 10 days

B. Form

10. TENNESSEE SUPREME COURT

A. Application for Permission to Appeal. DO NOT ABANDON YOUR CLIENT

B. Time limits – 60 days. NO EXTENTIONS ALLOWED !!!!!

C. Keep it short

D. Tell them why they should take your case

E. Conflicts in C.C.A.

F. Attach copy of opinions

G. Rule 11 allows for a Brief on the Merits to be filed with the application.

H. Narrow Issues In Tn Sp Court. No waiver for later Federal Review

11. PETITION FOR WRIT OF CERTIORARI TO UNITED STATES SUPREME COURT (Rule 13, United States Supreme Court Rules):

A. If from a state court of last resort, must be filed within 90 days after entry of judgment. NOT FROM date OF MANDATE !!!!!

B. If discretionary review is denied by state court of last resort, petition must be filed within 90 days after entry of the order denying discretionary review.

C. An extension of up to 60 days may be granted.

D. Tolled by a timely filed petition for rehearing in State Court.

12. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI (R. U.S. S. Ct. 15.2): Filed within 30 days after receipt of the petition.

13. REPLY TO BRIEF IN OPPOSITION (R. U.S. S. Ct. 15.6):

No time limit, but petition is submitted to Court upon filing of brief in opposition.

14. PETITION FOR REHEARING FROM DENIAL OF PETITION FOR CERTIORARI (R. U.S. S. Ct. 44.2): Must be filed within 25 days after date of the order of denial.

14. COMPUTATION OF TIME (Tenn. R. App. P. 21(a) & United States Supreme Court Rule 30.1):

A. Do not include date of the act, event or default (i.e., time begins day after entry of order).

B. Last day is included unless it is a Saturday, Sunday, legal holiday or day when clerk’s office is closed.

C. Tennessee only: If time is less than 7 days, Saturdays, Sundays and state holidays are not included in computing prescribed period.

15. MAILING EXTENSION (Tenn. R. App. P. 21(d)):

A. Where a party is required to do an act which is triggered by the service of a notice or other paper and the notice or paper is served by mail, 3 days are added to the prescribed period.

B. This provision does not extend the time to file an application for permission to appeal. State of Tennessee v. James J. Benson, Williamson County (Tenn. May 14, 1990).

16. FILING DOCUMENT IN U.S. SUPREME COURT (R. U.S. S. Ct. 29.2):

A. Document must either be filed with the clerk of the court within the time specified for filing or be sent to the clerk by “first class mail, postage prepaid, and bear a postmark showing that the document was mailed on or before the last day for filing.”

B. If document is delivered by private service (e.g., Federal Express) document must be received by clerk within prescribed time.

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