As a general rule, an appellate issue is only preserved if you first object before the trial court. N.C. R. App. P. 10(a)(1). The Court of Appeals reminded us this week of two potentially expansive exceptions to that rule in its award of a new trial to the defendant in State v. Young, a factually disturbing case involving allegations that the defendant murdered his spouse.
First, some statutes require the trial court to take certain actions or to hold proceedings in a certain order or within a certain time, or otherwise provide a “statutory mandate” that the trial court must follow. When the “trial court acts contrary [that] statutory mandate and a defendant is prejudiced thereby, the right to appeal the court’s action is preserved, notwithstanding defendant’s failure to object at trial.” State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985). This is different than “plain error” review, and applies in both civil and criminal contexts.
Second, “where evidence is rendered incompetent by statute, it is the duty of the trial judge to exclude it, and his failure to do so is reversible error, whether objection is interposed and exception noted or not.” Christensen v. Christensen, 101 N.C. App. 47, 54-55, 398 S.E.2d 634, 638 (1990).
In the Young case, Defendant argued on appeal that the trial court erred by allowing the government to introduce the allegations and other pleadings from two parallel civil actions relating to the killing of Defendant’s spouse, because of a statutory prohibition against such evidence being introduced in a criminal case. See N.C. Gen. Stat. § 1-149. Defendant had not, however, objected to such evidence on that statutory ground at trial.
The Court of Appeals found the failure to object at trial not to be fatal to Defendant’s appeal seeking a new trial, because it was the duty of the trial court to exclude the evidence in accordance with the statute regardless of whether the defendant cited to the statute. The Court of Appeals then granted Mr. Young a new trial.
This exception to preservation clearly applies, then, when a statute expressly excludes a certain type of evidence in a certain type of proceeding. See, e.g., N.C. Gen. Stat. § 1-149 (“No pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in it.”). But could the exception also apply when a statute implicitly excludes a certain type of evidence? Yes, according to the Christensen panel. In Christensen, the Court of Appeals considered a non-preserved challenge on appeal that the trial court erred in considering evidence that showed the value of marital property after separation, since the statute required that “marital property shall be valued as of the date of the separation of the parties.” See N.C. Gen. Stat. § 50-21(b).
The Christensen panel’s application of the exception means that any statute describing elements of a claim may implicitly exclude evidence that goes beyond those elements, and therefore provide a basis on which to argue error on appeal based on the admission of evidence, even if there was no objection below.
Further, should the logic of Christensen be limited to a situation where evidence is admitted at trial but should have been excluded by statute? What about evidence that is excluded at trial that should have been admitted by statute? What about an objection that is raised by Rule 59 motion, even though it was not lodged contemporaneously during the trial? I welcome your thoughts on these or any other ways that the exception might be expanded.