I think I comprehend the reasoning behind applying equally to the State and the defense the "basic principle of appellate jurisprudence that points not argued at trial are deemed to be waived". 972 S.W.2d at 78. Nevertheless, in the context of a pretrial hearing concerning the admissibility of certain evidence, I do not quite see how the State would raise its "complaint" about suppression of evidence by "request, objection, or motion" to the trial court. In my case relevant evidence (marihuana) was discovered as a result of a "pat-down" search for weapons. I understand that because the search was without a warrant, the burden of persuasion shifted to the State to show the search was nonetheless reasonable. But I still do not quite understand why, in order to challenge the court's determination that the evidence was not admissible, the State must have offered every conceivable theory of admissibility to the trial court. Why is it not enough to have said that the evidence was admissible under Rule of Evidence 402 ("all relevant evidence is admissible, except . . .")? Then, if the trial court found an exception, why not allow the State to show the exception was inapplicable upon appeal (if such argument is supported by the record)? After all, until the trial court rules you do not know why the relevant evidence is to be excluded. Furthermore, you have no complaint until the evidence is ruled inadmissible. It would seem to me that the only way the State can preserve its "complaint" would be by a motion for reconsideration. Will that be considered timely? Note that Rule 33.1(b) applies only in civil cases. Furthermore, it seems to be a leap to first say that points not argued are waived but then conclude that the State "must have preserved each theory on which suppression could have been denied". The theory of admissibility is that the evidence is relevant. Are theories as to why the evidence should not be inadmissible really the same thing?
A second point in my case. I argued that even if the exclusionary rule applied, the evidence still had limited admissibility for the purpose of corroborating the prior testimony of the defendant. This exception to the Rule 402 exception (if it is one) has nothing to do with the issues raised in the defendant's motion (unreasonable warrantless search). I agree that if it had been raised in the trial court, perhaps the state's appeal could have been avoided. But again, if the trial judge improperly excluded relevant evidence, why must this theory have been advanced below to secure a ruling from the appellate court? Isn't Mercado contrary to Rule of Evidence 103(a)(2)?
I think the Mercado rationale is that, if you don't ask a court to apply a rule of law to a given set of facts, you're not allowed to say that the court "erred" by violating the rule. The rule seems to be founded upon notions of equity, estoppel, and the basic policy of upholding judgments. Just because criminals are presumed to know the law doesn't mean that judges aren't ignorant of it!
Rule 103(a)(2) is an "extra" preservation requirement for rulings where the court does not hear the evidence excluded. A different matter than the proponent's failure to offer a basis for admission of that evidence.
The courts seem to apply these rules even handedly to appellants without regard to who the appellants are. I think that is just and right. Perhaps you might fall under the exception in Rule 33.1(a)(1)(A) "grounds apparent from the context"? After all, if y'all argued about the applicability of search incident to arrest or "plain touch" or Dickerson without uttering those magic words, you've probably complied with Mercado.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Of course it could have been lengthened. But indeed it may already have been longer than necessary. Sorry, just wanted to include all my thoughts.
Rule 33.1 speaks in terms of a particular way to preserve-- request, objection or motion. Only "request" seems applicable here, and my argument is that the issue of the admissibility of the particular evidence is being preserved by the State's request that the evidence will be admitted when offered. Furthermore, isn't the State broadly saying the search was reasonable? Why can't the appellate court search for anything that might make it reasonable? The State never gets to file a motion to exclude defensive evidence prior to trial, so there is no evenhandedness being followed. I agree with the idea that the trial court should have the opportunity to cure the error or initially make the right decision, but since his ruling is in terms of the reasonableness of the search and he has heard the same evidence the State's attorney has, why isn't the judge charged with knowledge of those theories that might make the lack of a warrant irrelevant before he rules that this fact alone renders the evidence inadmissible?
In my case, the appellate argument dealt with whether, despite an unreasonable search, the evidence should still be admissible. Essentially I argued that Mapp was limited by Elkins v. U.S. and Segura v. U.S. and Lego v. Twomey. Considering the case has not yet gone to trial, what would be so bad about the appellate court deciding the merit of this argument? Certainly it is not moot and their opinion would not be merely advisory in nature (unless, once appealed, the trial court's suppression order is considered to become final). Mercado demands that the State's attorney be a perfect advocate, naming every possible sub-theory that might make the search a reasonable one or the lack of a warrant irrelevant, while supposedly in the role of responding to his opponent's motion. Appellate briefs are filled with cases the trial attorney never knew or thought about and opinions cite theories or cases mentioned in neither side's briefs. I still say the "grounds for the ruling" should not be interpreted to require the specificity chosen in Mercado. But, I will try to be even more careful in the trial court as result of this experience. Just another instance of failing to see the forest at the time.
Your "request" is either that the defendant's motion to suppress the evidence be denied or that the trial court rule your evidence admissible. Of course, 33.1 also requires that your request be specific, hence you must be pretty exact in telling the judge why the motion to suppress should be denied or the evidence should be ruled admissible.
Every person in the position of appellant faces the same uphill battle.
Were the Texas courts to adopt a more liberal rule for preservation of error, I suspect you'd see a large increase in the number of cases reversed. Think hard--is that really what you want as a prosecutor?
Next time, if you think them up quickly enough, try a written motion to reconsider containing the extra, new, or omitted arguments. Get a written ruling on your motion ASAP, and draft your order to include another ruling on the motion to suppress. Might work, might not. Try to work some findings in with it. Its better than standing in front of the podium in Eastland with Mercado all over your face and nothing in your record.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
If in citing United States v. Hassan the CCA agrees with the Fifth Circuit, then fortunately it appears it may not be necessary to actually get the court to reconsider its ruling or enter any new order. You just have to have given it the opportunity to change its mind. (Unclear whether the motion need even have been presented). Given the 15 day time squeeze this could be important.
I don't think my argument would affect the general rules for preservation of error or the requirement of specificity-- actually I think the defendants already often benefit from a lesser requirement. If the trial judge is ruling the search was unreasonable, then it seems logical to say the State can come forward with any reason to say that decision was wrong. The real problem is the idea that we have all these pigeon hole "exceptions to the warrant clause", which are treated like separate theories of admissibility.
Well, one thing for sure. With at least eight judges now joining in the decision in Martinez No. 344-02 (12/11/02) adopting the goose and gander rule without regard to the nature of the proceeding or the wording of the rules supposedly being applied, my arguments will get you nowhere fast for a long, long time to come. Damn the law, judicial economy full speed ahead. Only trial judges and Clingons(sp?) have such cloaking devices. I guess if motions to suppress had to be more specific, I would be a little happier with this procedure. Probably in this case, though, the defendant specifically cited 20.17 and if the State's attorney thought it inapplicable, he should have spoken up, or forever kept his peace.
I read Martinez, and the first part makes sense. I'm not sure I understand how they reconcile the second part, though. I need to re-read it.
I am sure that Klingon is spelled with "K," but you can't forget that the Klingons stole the cloaking device from the Romulans. For some reason though, I think the Klingon cloak only works on little ships like the Bird of Prey, whereas the Romulans can cloak big 'uns.
No one will ever read my posts again, will they? Not that they did before.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Believe it or not I started with a "K" and then changed it. That's typically my luck. I must confess that I had forgotten that the Romulans developed the technology. Does the USAF have any pilots that look like Klingons to go along with its new Bird of Prey?
