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What Steps Must An Appellee Take To Preserve A Cross-Issue Under Appellate Rule 10(c)?

Three judge bench

Writing as a blogger is something entirely new for me. As an alumnus of both of North Carolina’s state appellate courts, I will always be mindful that I possess knowledge of, and have participated in, matters that must remain confidential.  But now that I’m an outsider, I can comment as a careful observer on issues that affect appellate litigation.  Here goes!

Numerous cases discuss the steps an appellant must take in the trial court to preserve error under Appellate Rule 10(a).  However, the question of what steps an appellee must take in the trial court to preserve a cross-issue for presentation under Appellate Rule 10(c) has drawn less attention.  Appellate Rule 10(c) states:

Without taking an appeal, an appellee may list proposed issue on appeal in the record on appeal based on any action or omission of the trial court that was properly preserved for appellate review and that deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which the appeal has been taken.

On 18 July 2017, the Court of Appeals issued State v. Hester, No. COA16-1120 .  The opinion consisted of a majority opinion, a concurrence, and a dissent, each taking a different approach as to the steps an appellee must take to preserve arguments under Appellate Rule 10(c).

The crux of the case was the admissibility of evidence (a handgun) seized from defendant. After a hearing, the trial court denied defendant’s motion to suppress, finding that the deputy acted upon reasonable suspicion that a crime was being committed at the time he stopped defendant.

On appeal, the Court of Appeals’ majority and concurring opinions agreed that only plain error review was warranted because defendant had not objected to the admission of the evidence at trial. No plain error was found.  The majority assumed that the initial stop of defendant was not supported by reasonable suspicion but held that the evidence nevertheless was admissible because it was obtained after defendant committed the separate offense of pointing the pistol at the deputy and attempting to fire it.  This intervening circumstance purged the primary taint.

Defendant argued to the Court of Appeals that the “intervening circumstance” argument had not been raised and preserved below and thus, under Appellate Rule 10(c), could not be argued for the first time on appeal by the State. In response, the majority cited State v. Bone, 354 N.C. 1, 8, 550 S.E.2d 482, 486 (2001), for the proposition that the appellate court’s ultimate responsibility under Appellate Rule 10(c) is to determine whether the trial court’s determinative judgment was correct, not whether the reason given by the trial court (or argued by the parties in the trial court) was sound.  According to the majority, an appellee could raise new arguments supporting the judgment for the first time on appeal under Appellate Rule 10(c).  In the alternative, the majority determined that Appellate Rule 2 provided a secondary basis for its ruling.

In contrast, the concurring opinion relied entirely on Appellate Rule 2 in finding no plain error. The concurring opinion noted the conundrum facing the Court by pointing out that Appellate Rule 10(c) requires an appellee to preserve at trial any alternative ground the appellee wishes to raise as a basis for supporting a trial court ruling on appeal.  On the other hand, the concurrence agreed that the State had presented evidence that supported the trial court’s ruling, if not its rationale, thus meeting the requirements of Bone.

The dissent argued that the legal basis on which the majority had affirmed the trial court’s judgment had not been preserved under Appellate Rule 10(c). The dissent took a narrower view of the trial court ruling that a reviewing court is allowed to address under Appellate Rule 10(c).  More generally, the dissent argued that the Court should not adopt different error preservation standards for appellants and appellees under Appellate Rule 10.  According to the dissent, the majority’s interpretation was that “whether a litigant is bound by the arguments it makes in the trial court depends only upon whether the arguments were accepted by the trial court, regardless of whether the trial court was correct.”  The dissent found the majority’s approach to be “an untenable theory of preservation.”  The dissent also argued that the circumstances here did not justify the invocation of Appellate Rule 2.

These opinions highlight the differing, but plausible, interpretations of the preservation requirements imposed upon appellees under Appellate Rule 10(c). Assuming that defendant appeals to the Supreme Court on the basis of the dissent, what policy issues may confront the Supreme Court?

  1. While the majority relied heavily on the Supreme Court opinion in State v. Bone, the language quoted may be dicta or something like dicta.  The trial court in Bone set out two bases for its finding that the defendant’s shoes were properly seized.  The trial court first found that the seizure was based upon probable cause.  According to the Supreme Court, this finding was error.  However, the trial court also found as an independent basis for the seizure that the shoes were in plain sight.  The Supreme Court agreed that the seizure was appropriate under the plain view doctrine.  Thus, an alternative argument relied on by the Supreme Court in Bone had been presented to and addressed by the trial court.  Finally, though, the Supreme Court also found that the search was valid as pursuant to a lawful arrest.  This basis had not been presented at trial but was identified and relied on by the Supreme Court in addition to the “plain view” basis.  Does Bone present the Hester issue cleanly?
  2. Arguably, the dissenting opinion in Hester would require attorneys litigating a contested motion, whether as appellant or as appellee, to present every possible supporting argument in the record to ensure preservation under Appellate Rule 10(c).  In other words, the appellee, even after having won a motion, would be required to note all other supporting arguments for the record.  Trial judges may find such a process tedious and even wasteful of the court’s time (and the jurors’ time, if the hearing is conducted during a trial while the jury is excused from the courtroom and waiting nearby).  More than once, I have seen a judge admonish an attorney for continuing to argue after obtaining a favorable ruling.  As a now-retired trial judge once told such a lawyer, “Counselor, when the court is leaning your way, let it fall.”  Can Appellate Rule 10(c) be interpreted to reconcile two competing interests: complete presentation by both parties of all potential arguments versus giving the trial court the ability to conduct an efficient and expeditious trial?
  3. When deciding whether an appellee’s argument was preserved under Appellate Rule 10(c), a practical factor may be the degree of the relationship between the stated basis for the trial court’s ruling and the alternative argument being advanced by the appellee for the first time on appeal.  An appellee who argued a motion solely on the basis of the First Amendment at trial may receive a chilly reception when arguing on appeal for the first time that the Fourth Amendment applies.  On the other hand, if the issue at trial was which hearsay exception applied to a particular question and answer, the reviewing court may not be unduly concerned about the basis for the objection if it concludes that the trial court reached the correct result but cited the wrong exception.
  4. The Supreme Court has been sparing in the application of Appellate Rule 2 as a means of addressing error preservation problems.  A few weeks ago, this blog noted  a Supreme Court decision that had reversed and remanded a Court of Appeals opinion for an improper application of Appellate Rule 2.  Will the Supreme Court take a restrictive approach to Appellate Rule 2 in Hester?  Is application of Appellate Rule 2 more appropriate in Hester because the appellant also failed properly to preserve error, leading the Court of Appeals to apply plain error review?
  5. While the dissent in Hester contends that error preservation under Appellate Rule 10 should be the same for appellants and appellees, how does this interpretation harmonize with footnote 11 to City of Asheville v. State of North Carolina , 391PA15 (21 December 2016)?  [Previously blogged about here ].  Also recall that in June, the Supreme Court in split 4-3 in State v. Romano over what arguments the State was required to offer in order to preserve error as an appellant under Appellate Rule 10(a). [See here ].

Having error preservation issues under Appellate Rule 10 arise in several recent cases may be an indication to the Supreme Court of a divide that needs attention from the top. Alternatively, the Supreme Court may use Appellate Rule 2 or issue a per curiam opinion to allow the issues and competing policies to be further developed in the lower courts.

What are your thoughts on the proper interpretation of Appellate Rule 10 as applied to appellees? Share your comments below.

-Bob Edmunds

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One Response to "What Steps Must An Appellee Take To Preserve A Cross-Issue Under Appellate Rule 10(c)?"

  • Beth Scherer
    August 3, 2017 - 1:22 pm Reply

    Welcome to the blog world, Justice Edmunds! And great first post! This is a fascinating, and important, issue. I hope an appeal to the Supreme Court produces clarity on this issue. The points raised by the majority, concurring, and dissenting opinion lay out nicely the competing policy arguments under Appellate Rule 10(c).

    Here are a few extra thoughts:
    1. The dissent makes good fundamental fairness arguments. On the other hand, the dissent appears to take the position that error preservation requirements should be the same for both appellants and appellees. However, I can think of at least one practical difference. Under Rule 10(a), an appellant is required not just to raise an argument, but to obtain a ruling on its pending argument. It would make little sense for the appellee to be required to do more than raise an argument in the trial court. Appellate Rule 10(c) would produce a lot of annoyed trial court judges if it required the judges to both listen to and rule on appellee’s alternative arguments even though the trial court had already decided to dismiss the case.

    2. The majority would adopt a far-reaching “right for any reason, even a reason not argued below” approach to Appellate Rule 10. I believe the so called “right for any reason rule” is well-established in the federal system, but I’m curious as to whether the feds would go so far as to include reasons not argued below. What if the new argument requires development of additional facts–which the appellate courts are not equipped to do? As you mentioned, how far outside of the initial argument and holding can the appellee go under the majority’s right for any reason interpretation? Isn’t avoiding these types of problems a key goal of error preservation?

    3. A fourth approach would be for the appellate courts to remand cross-issues not raised below for further review. Granted, this approach would produce additional litigation–and discourage appellees from putting all their cards on the table. However, if a newly raised cross-issue was a purely legal argument, the appellate court could elect “in the interest of judicial economy” to decide the issue for the first time on appeal.

    4. In both this case and the Supreme Court’s Romano error preservation split, I wondered if written motions and responses could have helped the State to avoid error preservation problems. In today’s fast-paced criminal world, are prosecutors forgetting to raise alternative issues during the hearing? On the other hand, maybe both the state and public defenders workloads are so heavy that they don’t have the time to put everything into a written motion and brief to ensure that they have preserved error.

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