Fundamental Principles of Error Preservation

Transcription

1 Chapter 4 Fundamental Principles of Error Preservation 4-1 INTRODUCTION Preservation of error in the trial court is a fundamental part of practice in the appellate courts. With limited exceptions, the appellate courts of Georgia will only address alleged errors if such errors are properly preserved through objection or otherwise in the trial court. In preparation for a potential appeal, you must be careful to properly preserve objection to errors of the trial court. In deciding to appeal and selecting issues for appeal, you must analyze whether errors were properly preserved. And in responding to an appeal, you should never overlook the possibility that the errors alleged by the appellant were not properly preserved. Failure to preserve error can be a simple and powerful argument for affirmance. Although there are in some instances specific and technical preservation requirements, the fundamental rule and purpose of record preservation can be summarized as follows: if the error could have been be corrected by the trial court, it must be given a full and fair opportunity to do so. Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court. This court is one for the correction of errors committed by the trial court where proper exception was taken City of Cairo v. Hightower Consulting Eng rs, Inc., 278 Ga. App. 721, 726 (2006) (citing Hadlock v. Anderson, 246 Ga. App. 291, 295 (2000)). Georgia APPEALS GA_Appeals_Practice_Fullbook.indb 37 7/19/13 10:31:50 AM

2 Chapter 4 Fundamental Principles of Error Preservation [O]ur appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court. To consider the case on a completely different basis from that presented below... would be contrary to the line of cases... holding, He must stand or fall upon the position taken in the trial court.... If the rule were otherwise, a party opposing a motion for summary judgment need not raise any legal issue, spend the next year thinking up and researching additional issues for the appellate court to address, and require the opposing party to address those issues within the narrow time frame of appellate practice rules. 2 The rationale for the preservation rule has been variously expressed as fairness to the trial court and to the opposing party, 3 avoidance of delay and unnecessary expense, 4 and avoiding unseemly gamesmanship. 5 Parties may not rest content with the procedure of a trial, saving general exceptions to be made the basis of error proceedings, when they might have had all they were entitled to by the action of the trial court had its attention been seasonably called to the matter. 6 As applied, this rule generally requires (1) timely notification to the trial court of the alleged error (usually by objection), (2) an assertion of the legal grounds for claiming it is an error, (3) a request for the appropriate relief (for example, admission or exclusion of 2. Pfeiffer v. Georgia DOT, 275 Ga. 827, 829 (2002). 3. Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court. City of Cairo v. Hightower Consulting Eng rs, Inc., 278 Ga. App. 721, 726 (2006). 4. Where a party might have obtained the correct charge by specifically calling the attention of the trial court to the error and where part of the charge was correct, he may not through a general exception obtain a new trial. Georgia Power Co. v. Maddox, 113 Ga. App. 642, 645 (1966), overruled on other grounds, Christiansen v. Robertson, 237 Ga. 711 (1976). 5. A party is not allowed to remain silent regarding an objection or grounds for error and gamble on a favorable jury verdict, expecting that he can raise such objection later in a motion for new trial... Such gamesmanship brings the counsel and the judicial system into disrepute. Head v. CSX Transp., Inc., 259 Ga. App. 396, (2003) (internal citations omitted). 6. Georgia Power Co. v. Maddox, 113 Ga. App. 642, 645 (1966), overruled on other grounds, Christiansen v. Robertson, 237 Ga. 711 (1976). 38 Georgia APPEALS 2014 GA_Appeals_Practice_Fullbook.indb 38 7/19/13 10:31:50 AM

3 CONTEMPORANEOUS OBJECTION IS GENERALLY 4-2 REQUIRED evidence, a curative instruction or mistrial), (4) repetition of the objection if the issue recurs, (5) making a record of the objection and all material needed to evaluate its merits and harmfulness, and (6) assertion of the same error, based upon the same legal grounds, on appeal. Although there are particular rules for particular objections, some of which are addressed in detail in Chapters 5-10 below, the fundamental principles described in this chapter apply generally to most situations where preservation of error is required. 4-2 CONTEMPORANEOUS OBJECTION IS GENERALLY REQUIRED 4-2:1 Timeliness of Objection A proper objection must be timely, which generally means it must be made contemporaneously with the offending event. 7 In fact, this requirement is referred to as the contemporaneous objection rule. 8 Although there are a number of exceptions, generally it is too late to urge objections to the admission of evidence after it has been admitted without objection. In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised. 9 Waiting until the conclusion of the argument, 10 the next break, the end of the day or when the opposing party rests is insufficient. Apparently raising an objection some 90 seconds later is too late. 11 First raising an objection the second time certain objectionable testimony is elicited is also insufficient Stolte v. Fagan, 291 Ga. 477, 482 (2012) ( counsel failed to object contemporaneously as is required. The proper time to object to improper argument is when it occurs ); Hargrove v. State, 291 Ga. 879, 884 (2012) (objection waived by lack of contemporaneous objection ); Wright v. State, 291 Ga. 869, 872 (2012) (same). 8. Bryan v. Brown Childs Realty Co., 252 Ga. App. 502, 507 (2001). 9. Kapua v. State, 228 Ga. App. 193, 196 (1997) (emphasis added). 10. Stolte v. Fagan, 291 Ga. 477, 482 (2012) ( such objections must be made at the time the offending remarks are made, rather than at the conclusion of the argument ). 11. Stolte v. Fagan, 291 Ga. 477, 479 (2012). 12. Maher v. State, 216 Ga. App. 666, 667 (1995). Georgia APPEALS GA_Appeals_Practice_Fullbook.indb 39 7/19/13 10:31:50 AM

4 Chapter 4 Fundamental Principles of Error Preservation 4-2:2 Exception for Motions in Limine The most frequently arising exception to the contemporaneous objection rule results from the filing and unconditional trial court ruling upon a motion in limine. [T]he purposes of an objection have already been fulfilled by the proceedings on the motion in limine. The trial court has been apprised of the possible error in admitting the evidence and has made its ruling, and the record has been perfected for appeal purposes. 13 This rule applies whether the motion in limine was granted or denied. [W]hen a motion in limine has been granted no further objection is required to preserve the issue for appellate review. 14 Similarly, a party does not waive an error by failing to object to admission of evidence after a motion in limine is denied. 15 The unconditional pretrial ruling on admissibility of evidence need not necessarily be styled as a ruling on a motion in limine to preclude the need for contemporaneous objection. The same rule applies to other motions designed to obtain a pretrial ruling from the trial court. 16 For example, an objection to the voluntariness of a confession that is overruled at a Jackson-Denno hearing does not need to be repeated when the confession is offered at trial, an objection made at a hearing on a motion to suppress evidence based on an alleged illegal search does not have to be repeated at trial, and a defendant need not repeat an objection at trial to similar transaction evidence that was raised and overruled at a Rule 31.3 (B) hearing. 17 Similarly, an unconditional ruling on the admissibility of evidence in a pretrial order will be treated as a motion in limine ruling for preservation purposes. 18 But an objection asserted in a party s portion of the pretrial order but not 13. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 286 (1979). 14. Scott v. Chapman, 203 Ga. App. 58, 59 (1992) (where motion in limine is granted, there is no need to renew objection unless an affirmative act at trial waives that objection). 15. Battles v. State, 290 Ga. 226, 232 (2011). 16. Whitehead v. State, 287 Ga. 242, 248 (2010) (emphasis added). 17. Whitehead v. State, 287 Ga. 242, (2010). 18. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, (1979) ( ruling on evidence at a pretrial conference is similar in purpose and function to a motion in limine); Malcolm v. Cotton, 128 Ga. App. 699, 701 (1973) (trial court s advance ruling on the admissibility of certain evidence is authoritative and binding ). 40 Georgia APPEALS 2014 GA_Appeals_Practice_Fullbook.indb 40 7/19/13 10:31:50 AM

5 CONTEMPORANEOUS OBJECTION IS GENERALLY 4-2 REQUIRED unconditionally ruled upon by the trial court as a part of the order will not preclude the need for a contemporaneous objection until the evidence is offered. There are two important caveats to the rule that an objection is excused by a ruling on a motion in limine. First, there must be an actual and unconditional ruling on the motion in limine. If the trial court takes the motion under advisement 19 or issues a conditional ruling, 20 the motion in limine does not preclude the need for a contemporaneous objection. Second, in order to be preserved by a ruling on a motion in limine, the error must be the same error on the same grounds as the error addressed by the motion in limine :3 Exception for Evidence Rendered Inadmissible by Later Evidence Another exception to the contemporaneous objection rule is where the evidence appears admissible at the time of its presentation but later evidence renders it inadmissible. 22 In that circumstance, a motion to strike, brought promptly when the inadmissibility is demonstrated, satisfies the contemporaneous objection rule :4 Exception for Illegal Evidence A third exception to the contemporaneous objection rule applies to illegal evidence. A motion to rule out testimony illegally admitted even without objection is never too late until the cause is finally submitted to the jury. 24 The definition of illegal evidence 19. Totino v. State, 266 Ga. App. 265, 268 (2004) ( Counsel failed to obtain a ruling on the motion in limine and, when presented with testimony about the gun, he did not object. Under these circumstances, Totino has waived the alleged error ). 20. Head v. State, 256 Ga. App. 624, (2002) ( the conditional grant of a motion in limine in a preliminary ruling is not a final ruling on the admissibility of evidence. In this instance, the trial court left open the possibility of ruling in favor of the defense. By failing to... raise the issue again during trial, Head waived the alleged error). 21. Battles v. State, 290 Ga. 226, 232 (2011) ( this rule cannot be invoked to preserve a different, if perhaps related, error ); Wilkins v. State, 220 Ga. App. 516, 517 (1996) (where motion in limine was based upon one ground, any other ground for claiming error has been waived). 22. Bryan v. Brown Childs Realty Co., 252 Ga. App. 502, 507 (2001). 23. Bryan v. Brown Childs Realty Co., 252 Ga. App. 502, 507 (2001). 24. Mable v. State, 261 Ga. 379, 381 (1991). Georgia APPEALS GA_Appeals_Practice_Fullbook.indb 41

6 Chapter 4 Fundamental Principles of Error Preservation and illegally admitted evidence has vexed the appellate courts, although it is clearly established that evidence, the obtaining or admission of which violates a criminal defendant s constitutional rights, is illegal evidence for purposes of this rule. 25 Further, at least until January 1, 2013, hearsay evidence was considered illegal evidence for purpose of this rule. 26 However, [t]his exception was premised on the fact that hearsay testimony has no probative force whatsoever. 27 That treatment of hearsay was changed by the rewrite of the Georgia Evidence Code effective January 1, In fact, the new code makes it explicit that unobjected to hearsay is legal evidence. 28 Thus, hearsay will no longer be subject to the illegal evidence exception to the contemporaneous objection rule. Because of the difficulty in defining illegal evidence, intentionally relying on the illegal evidence exception in foregoing a contemporaneous objection is a dangerous game. However, being aware of the exception can allow an appellant to appeal an error that might otherwise seem to have been waived. 4-2:5 Exception for Plain Error One additional exception to the contemporaneous objection rule is the doctrine of plain error, which exists in several variations. Plain error is an error that is obvious, that likely affected the outcome of the proceedings, and that seriously affects the fairness, integrity or public reputation of judicial proceedings. 29 The plain error doctrine is applied to jury charges 30 (including curative instructions during the course of 25. The illegal nature of Detective-Sergeant Mansfield s testimony... is not in issue... since even the State has admitted that the introduction of the challenged testimony was error of constitutional dimension. Mable v. State, 261 Ga. 379, 381 (1991) (citations omitted). Accordingly, the defendant was entitled either to object to it contemporaneously or to move to strike it at any time before the case was submitted to the jury. Mable v. State, 261 Ga. 379, 381 (1991). 26. Sharpe v. DOT, 267 Ga. 267, 268 (1996). 27. Sharpe v. DOT, 267 Ga. 267, 268 (1996). 28. O.C.G.A ( if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible ) (emphasis added). 29. Merritt v. State, No. S12A2039, 2013 Ga. LEXIS 69, at *8 (Ga. Jan. 22, 2013). 30. Merritt v. State, No. S12A2039, 2013 Ga. LEXIS 69, at *8 (Ga. Jan. 22, 2013). 42 Georgia APPEALS 2014 GA_Appeals_Practice_Fullbook.indb 42

7 CONTEMPORANEOUS OBJECTION IS GENERALLY 4-2 REQUIRED the trial) in criminal cases, 31 improper arguments, and improper judicial comments. 32 As to jury charges in criminal cases, the plain error doctrine is codified. 33 However, plain error review does not currently apply to allegations regarding the improper admission of evidence. 34 A related doctrine, the substantial error doctrine applies to jury charges in civil cases. 35 A substantial error, to be reviewed with a proper objection, must be harmful as a matter of law. 36 But a jury charge error in a civil case is not harmful unless a gross miscarriage of justice attributable to it is about to result. Generally, if counsel, who are skilled and trained in the law and who have prepared and tried the case, fail to see the error and enter an exception..., it is not to be regarded as harmful. Instances when the charge will be found grounds for reversal under subsection (c) are likely to be very, very rare. 37 So it has proved over the years. As to an allegedly improper closing argument in a civil case, when no timely objection is made, the standard for reversible error is whether the improper argument in reasonable probability changed the result of the trial. 38 However, in 2012, the Supreme Court of Georgia called into question the continued viability of this exception to the contemporaneous objection rule Simmons v. State, 291 Ga. 705, 712 (2012). 32. Ellis v. State, No. S12A1923, 2013 Ga. LEXIS 17, at *15 (Ga. Jan. 7, 2013) (Improper judicial comment on the evidence is always plain error and failure to object will not preclude appellate review ). 33. O.C.G.A (b) (establishing plain error exception for appellate review of jury charges in criminal cases). 34. Durham v. State, 292 Ga. 239, 240 (2012). 35. O.C.G.A (c). 36. O.C.G.A (c). 37. Nathan v. Duncan, 113 Ga. App. 630, 638 (1966). 38. Stolte v. Fagan, 291 Ga. 477, 483 (2012). 39. Stolte v. Fagan, 291 Ga. 477, 483 (2012). We do question the continued validity of the rationale for reviewing the merits of untimely objections to closing arguments in civil cases, when we do not conduct such a review in non-death penalty criminal cases. Given that this issue has been neither argued nor even raised by the parties, we do not resolve it here. Stolte v. Fagan, 291 Ga. 477, 483 n.4 (2012) (internal citations omitted). Georgia APPEALS GA_Appeals_Practice_Fullbook.indb 43

8 Chapter 4 Fundamental Principles of Error Preservation 4-3 AN OBJECTION MUST DISTINCTLY STATE THE GROUNDS TO PRESERVE ERROR A proper objection must state distinctly the legal grounds for the objection. 40 Where a party objected only generally but failed to state the specific grounds for the objection the objection is not preserved. 41 Although Georgia law does not demand a formalistic, or technically perfect objection, the grounds must be stated distinctly enough for a reasonable trial judge to understand its nature and rule on it intelligently. 42 It is not important in what form an objection is made... as long as it is clear that the trial judge understood the party s position; the purpose of the rule is to inform the trial judge of possible errors so that he may have an opportunity to correct them. 43 Merely stating that evidence is inadmissible is not adequately stating the grounds for the objection. 44 Objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal. 45 Similarly, an objection that the evidence is irrelevant and immaterial without stating what renders the evidence irrelevant or immaterial is insufficient to preserve error Smith v. State, 192 Ga. 713, 714 (1941). An assignment of error on admission of evidence, which fails to state the specific grounds of objection that were then stated to the court, does not present any question for decision. Smith v. State, 192 Ga. 713, 714 (1941); see Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 15 (1973) (counsel must state distinctly his grounds of objection ); Axcan Scandipharm v. Schwan s Home Serv., 299 Ga. App. 49, 53 (2009) ( when objecting to charges given by the trial court, one must state specific grounds for the objection ). 41. Department of Transp. v. Old Nat l Inn, 179 Ga. App. 158, 162 (1986); see Larry v. State, 266 Ga. 284, 287 (1996) (where party objected to the trial court allowing the jury to change its foreperson after the start of deliberations, but failed to state any ground for his objection below, the contention was unavailing on appeal.). 42. Department of Transp. v. Old Nat l Inn, 179 Ga. App. 158, 162 (1986). 43. Georgia Power Co. v. Maddox, 113 Ga. App. 642, 645 (1966), overruled on other grounds, Christiansen v. Robertson, 237 Ga. 711 (1976). 44. Coleman v. State, 124 Ga. App. 313, (1971) ( objection[s] to evidence and stating no specific ground are insufficient and present nothing for consideration on review ). 45. Newman v. State, 239 Ga. 329, 330 (1977) (quoting Dillard v. State, 128 Ga. App. 747 (1973)). 46. Myers v. State, 184 Ga. App. 618, 622 (1987). 44 Georgia APPEALS 2014 GA_Appeals_Practice_Fullbook.indb 44

9 THE TRIAL COURT SHOULD BE MADE AWARE 4-4 OF THE RELIEF SOUGHT 4-4 THE TRIAL COURT SHOULD BE MADE AWARE OF THE RELIEF SOUGHT 4-4:1 Generally Subject to several exceptions, the objection must be coupled with a request for the relief sought. If the relief sought is simply the exclusion of evidence, a proper objection to its admission is sufficient. But where the objecting party seeks further relief, such as a curative instruction, admonishment of counsel or a mistrial, that relief should be expressly requested :2 Exceptions to Requirement There are exceptions to this preservation requirement of requesting from the trial the particular relief sought. In the context of prejudicial statements made by opposing counsel in the presence of the jury, O.C.G.A in civil cases, and O.C.G.A in criminal cases, mandate that the trial court rebuke counsel, provide a curative instruction, and consider the grant of a mistrial. In that instance, the objecting party need not request those forms of relief to preserve the right to contend on appeal that they should have been granted. The statutes impose an independent duty on the trial court to grant such relief upon a meritorious objection on those grounds, which relieves the objecting counsel from the duty to expressly request it. 48 As a further potential exception, when a party asks for extraordinary relief such as a mistrial, lesser relief is statutorily considered to have been requested. When motion for mistrial or other like relief is made, the question is thereby presented as to whether the moving party is entitled to the relief therein sought or to any lesser relief, and where such motion is 47. See generally Carr v. State, 259 Ga. 318, 321 (1989) (where objection was sustained, appellant s attorney, having failed to move for mistrial and curative instructions, waived the appellant s right to relief for error on this issue on appeal); Gibson v. State, 283 Ga. 377, 380 (2008) (where objection is to improper displays to the jury and the court orders the display to cease, and no further relief is requested, display cannot serve as the basis for a new trial). But see O.C.G.A (a) ( 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 he desires the court to take or his objection to the action of the court and his grounds therefor. ) (emphasis added). 48. Stolte v. Fagan, 291 Ga. 477, (2012). Georgia APPEALS GA_Appeals_Practice_Fullbook.indb 45

10 Chapter 4 Fundamental Principles of Error Preservation denied in whole or in part, it shall not be necessary that the moving party thereafter renew his motion or otherwise seek further ruling by the court. 49 Finally, where a court grants the relief requested, such as a curative instruction or rebuke, but the complaining party does not believe the instruction or rebuke provided was sufficient, the party must assert an objection as to the insufficiency of the relief granted and seek additional relief in order to preserve such alleged insufficiency for appellate review AN OBJECTION MUST BE REPEATED IF THE ERROR RECURS An objection must generally be repeated each time the alleged error recurs. 51 Exceptions to this requirement apply where a continuing objection has been requested and the trial court has expressly granted the right to a continuing objection, 52 and where the trial court has clearly ruled upon a motion in limine covering the topic. Motions in limine are discussed in more detail in Section 4-2: PRESERVATION OF OBJECTION TO EXCLUDED EVIDENCE REQUIRES A PROFFER 4-6:1 Proffer Requirements To preserve an issue for appeal, particularly an order refusing to admit evidence, allow testimony or make a particular argument, 49. O.C.G.A (b). 50. Walley v. State, 298 Ga. App. 483, 485 (2009) ( any issue concerning the propriety of the prosecutor s comments has been waived. If the trial court s curative action in sustaining the objection was insufficient, defense counsel should have sought additional relief. ) 51. Stolte v. Fagan, 291 Ga. 477, 482 (2012) ( the fact that Stolte made a prior objection does not obviate her responsibility to interpose a contemporaneous objection at each instance of offending argument ). 52. Telcom Cost Consulting, Inc. v. Warren, 275 Ga. App. 830, 832 (2005) (quoting State v. Larocque, 268 Ga. 352, 353 (1997)). The Telcom court stated: Continuing objections eliminate the need to repeat an objection where the trial court s ruling on the first objection clearly covers subsequent proceedings and the court has granted a party the right to have a continuing objection. If the court does not specifically grant a right to a continuing objection, it is counsel s duty to object to testimony as it is offered. Telcom Cost Consulting, Inc. v. Warren, 275 Ga. App. 830, 832 (2005) (quoting State v. Larocque, 268 Ga. 352, 353 (1997)). 46 Georgia APPEALS 2014 GA_Appeals_Practice_Fullbook.indb 46

11 PRESERVATION OF OBJECTION TO EXCLUDED 4-6 EVIDENCE REQUIRES A PROFFER the party must make a record not only of the objection to the trial court s action, 53 but of all facts, information and evidence necessary to assess not only the validity of the objection but also the harmfulness of the trial court s ruling. To obtain a reversal, an appellant must show by the record on appeal, not only error, but harm. 54 Even if the appellate court expressly concludes an evidentiary ruling excluding evidence was error, it will not reverse unless the excluded evidence is in the appellate record. 55 Excluded evidence is placed in the record by proffer, which is technically distinct from tender of evidence that is expected to go out with the jury. If a document is excluded from evidence, you must proffer a copy to the court. If a witness is excluded or a part of a witness s testimony disallowed, you must make a proffer of the substance of the witness s excluded testimony. 56 Without that record, the appellate court cannot determine whether any error was harmful. 57 If you contend that the right of cross-examination was unduly limited, you must not only object thereto, but must make a record of what questions you would have asked if allowed. 58 Further, you need to 53. Hodge v. Lott, 251 Ga. App. 288, 290 (2001) ( When a party makes an objection but fails to have such objection preserved upon either the record or transcript of the evidence, such objection is not preserved for review ). 54. Zone Enters. v. Geo. L. Smith II Ga. World Cong. Ctr. Auth., 234 Ga. App. 238, 240 (1998). 55. Zone Enters. v. Geo. L. Smith II Ga. World Cong. Ctr. Auth., 234 Ga. App. 238, 240 (1998) (concluding exclusion of evidence was error but holding that harmful error could not be shown where there was no evidence in the appellate record of a proffer). 56. Fuss v. State, 271 Ga. 319, 321 (1999); see Puckette v. John Bailey Pontiac-Buick-GMC Truck, Inc., 311 Ga. App. 138, 140 ( 2011) ( error alleged to have arisen from exclusion of testimony required a proffer to preserve the issue for appellate review ) (citing Johns v. State, 253 Ga. App. 207, 209 (2001)). 57. Johns v. State, 253 Ga. App. 207, 209 (2001). Johns was required to make a proffer in order to preserve this issue for appellate review. However, Johns made no attempt to show the substance of his witness excluded testimony. If Johns did not intend to acquiesce in the court s ruling, he should have made apparent in some proper way what the testimony would have been, for without this showing this court cannot determine whether injury resulted. Johns v. State, 253 Ga. App. 207, 209 (2001). 58. Daniels v. State, 235 Ga. App. 296, 297 (1998). However, the issue argued by defendant was not preserved for appellate review by appropriate objection at trial. In order to be in a position to complain of the abridgement of the right of cross-examination, a party to a legal proceeding or his counsel must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying the right to propound the questions. Daniels v. State, 235 Ga. App. 296, 297 (1998) (punctuation omitted). Georgia APPEALS GA_Appeals_Practice_Fullbook.indb 47

12 Chapter 4 Fundamental Principles of Error Preservation make a record of the expected 59 answer. [I]n order to preserve a ground of objection relating to the exclusion of oral testimony, it is necessary that the complaining party show what he expects to prove, and that the evidence is material, relevant, and beneficial :2 Method of Making Proffer There are many ways to make a proffer. For documentary evidence, the document should merely be proffered to the trial court for the stated purpose of inclusion in the appellate record, even though it will not go out with the jury. For excluded testimony, the witness can be called to the stand outside the presence of the jury and examined on the record. An affidavit of the witness describing the testimony she would give if allowed to testify can be filed. Deposition excerpts containing the excluded testimony can be filed for inclusion in the appellate record. And, although perhaps not preferred, counsel can state in his place what testimony he expected to elicit, assuming there is no objection. That is frequently the only way to proffer testimony of hostile or adverse witnesses. Anything else that can help demonstrate harmfulness should be tendered. For example, if you are not allowed to cross-examine a hostile witness on a particular topic, in addition to stating the questions you would have asked, you might consider proffering documents that support the conclusion that you would have obtained a beneficial answer to your questions. Your proffer is not merely a technical requirement: it is a part of persuading the appellate court that the error was truly harmful to your case. It is not unheard of for trial judges to refuse to allow or accept a proffer. They have held the matter irrelevant or unduly prejudicial and they don t want it in the record. If the matter is sufficiently important, you simply cannot be dissuaded. In one trial where the judge refused to send the jury out of the room to allow me to make a record and refused to accept a written proffer in open court, at the next break I filed in the clerk s office a Notice of 59. Holloway v. State, 201 Ga. App. 204, 205 (1991). The Holloway court stated: Defendant contends the trial court erred in refusing to permit him to ask a prison administrative assistant whether the prison guards always abide by [the] post orders. We find no merit in this contention. Defendant failed to perfect the record by obtaining an answer to the question. Accordingly, we are presented with nothing to review. Holloway v. State, 201 Ga. App. 204, 205 (1991) (emphasis added). 60. Maddox v. Elbert Cnty. Chamber of Commerce, 191 Ga. App. 478, 481 (1989). 48 Georgia APPEALS 2014 GA_Appeals_Practice_Fullbook.indb 48

13 THE APPEAL MUST BE BROUGHT ON THE SAME 4-7 GROUNDS SPECIFIED FOR OBJECTION Filing Proffer which enclosed the material the trial judge refused to accept for the record. It was in the appellate record. 4-7 THE APPEAL MUST BE BROUGHT ON THE SAME GROUNDS SPECIFIED FOR OBJECTION IN THE TRIAL COURT Finally, the appeal must be brought upon the same grounds urged and preserved in the trial court. 61 [A]ppellate review cannot be enlarged or transformed through switching, shifting, or mending one s hold; [the] function of Court of Appeals is to review errors of the lower courts, not to review assertions made by appellant and brought directly to this court. 62 To preserve evidentiary issues for appeal, the appellant shall object to the admission of the evidence on the specific grounds raised on appeal and cannot assert on appeal new or different grounds. Where evidence is admitted over objection and, on appeal, new grounds for objection are raised for the first time, those new grounds for inadmissibility are not reviewable. 63 Thus, for example, where the objection at trial was made as to lack of relevance and lack of foundation, the party may not on appeal base his argument on improper injection of character evidence. 64 Where the objection at trial was that questioning of a witness exceeded the scope of direct examination, he cannot base his argument on appeal on the grounds that the testimony was hearsay See White v. State, 310 Ga. App. 386, 392 (2011) ( the objection made at trial was without merit, and White cannot raise a new objection on appeal ); Williams v. State, 262 Ga. 422, 424 (1992) ( the objections he currently asserts to the seized evidence are not the objections that he asserted before the trial court. The present objections cannot be asserted for the first time on appeal ); Rucker v. State, 291 Ga. 134, 138 (2012) ( Rucker contemporaneously objected to the argument only on the basis that it was improper, and asked the trial court to instruct the jury to disregard the cited statement and chastise the district attorney. Therefore, the complaints Rucker now makes have not been preserved for appellate review. ). 62. LaBrew v. State, 315 Ga. App. 865, 867 (2012). 63. Rental Equip. Group, LLC v. Maci, LLC, 263 Ga. App. 155, (2003) (internal citations omitted); see Belans v. Bank of Am., N.A., 306 Ga. App. 252, 256 (2010) (same quote). 64. Butler v. State, 273 Ga. 380, 382 (2001). 65. Richardson v. State, 277 Ga. App. 429, 431 (2006). Georgia APPEALS GA_Appeals_Practice_Fullbook.indb 49 7/19/13 10:31:52 AM