Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
On July 13, 2011, the Fourth DCA issued an opinion in Abdel Odeh v. State, 4D09-994, affirming Odeh’s conviction and sentence for first degree murder. In the opinion, the Court addressed several concepts which are important to criminal appeals: preservation, invited error, fundamental error, and attempts to raise ineffective assistance of counsel for the first time on appeal.
With regard to invited error and fundamental error, at trial, jury was allowed to hear a comment made by a Detective, during the interrogation of Odeh, that Odeh could not legally claim the defense of justifiable use of deadly force. Although the Court agreed that it was error to have allowed the jury to hear the comment, the Court found that the error was invited because he responded to a question on cross examination. Moreover, the Court rejected Odeh’s claim that the error was fundamental because the opinion testimony did not permeate the entire trial. The Court also found that the trial court erred in its jury instructions on the justifiable use of deadly force. However, Court determined that the error, which had not been preserved by a contemporaneous objection, was not fundamental because the State made no use of the trial court’s erroneous instruction. The Court also noted that Odeh’s counsel agreed to the erroneous instructions.
Finally, the Court addressed Odeh’s claim of ineffective assistance of counsel. In so doing, the Court observed the longstanding rule that such claims cannot properly be raised for the first time on appeal unless they are apparent on the face of the record. Because Odeh’s claims were not apparent on the face of the record, the Court declined to reverse Odeh’s conviction on such basis.
For previous posts on preservation and fundamental error, click here. For a discussion on filing motions for postconviction relief in state court as a prerequisite to federal habeas review, click here and here.
The recent Eleventh Circuit opinion of Mark Duke v. Richard Allen, No. 09-16011, mentioned in my previous post, also shows how important it is for any criminal (or civil) trial attorney to properly preserve issues for subsequent review on appeal. Perhaps if Mark Duke’s trial counsel had secured a ruling by the trial court as to whether or not the record would reflect that the prosecutor had pointed to the defendant during the prosecutor’s closing argument, the appeal could have been decided differently.
Florida appellate courts also adhere to the principal that issues not raised or preserved in the lower court are generally waived on appeal. Appellate review of an issue in a criminal case may be precluded if counsel fails to assert a contemporaneous objection, or if counsel fails to renew objections at key stages of the criminal proceedings. Key stages of criminal proceedings include the discovery phase, pretrial motions, voir dire and jury selection, opening statements, calling and examination of witnesses, admission of evidence, motions made during the course of the trial, closing statements, jury instructions, post trial motions, and sentencing. If counsel fails to timely assert proper objections, or fails to renew such objections, or fails to secure a ruling on those objections, the appellate court may be precluded from considering the issue on appeal.
Discussions of different aspects of the preservation doctrine can be found in cases such as Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925 (Fla. 2005), revised on reh’g, (Fla. 2005); Melbourne v. State, 679 So. 2d 759 (Fla. 1996); Castor v. State, 365 So. 2d 701 (Fla. 1978); Castaneda ex. rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So. 2d 1087 (Fla. 4th DCA 2004); Taylor v. Public Health Trust of Dade County, 546 So. 2d 733 (Fla. 3d DCA 1989); City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989); Franklin v. State, 965 So. 2d 79 (Fla. 2007); and, Hamilton v. R.L. Best Intern., 996 So. 2d 233 (Fla. 1st DCA 2008).