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“You are protected on the record.” These are words every trial practitioner has heard countless times. To a lawyer, “protected on the record” means a trial judge disagrees with you, but you have registered your objection to the judge’s decision and may use that objection, after trial, as a basis to appeal the final judgment. But in an opinion handed down yesterday, the South Carolina Court of Appeals warns trial attorneys that such words may not be sufficient to preserve one’s right to appeal.

In State v. Rivers, the Court of Appeals reiterates the long-standing rule that “[i]n order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial court. Issues not raised and ruled upon in the trial court will not be considered on appeal.” The appellate court found that Rivers had not properly preserved an evidentiary objection and thus could not raise the issue on appeal. In and of itself, the ruling is not remarkable. The circumstances surrounding the ruling, however, underscore the great importance of trial attorneys in all areas of practice properly registering objections during trial.

In 2011, a Chesterfield County grand jury indicted Rivers for “Homicide by Child Abuse” following the death-by-asphyxiation of Rivers’s four month-old son. The prosecution sought to present evidence not only of the injuries that led to the child’s unfortunate death, but also of previous injuries–rib fractures–that suggested the child had been physically abused seven to fourteen days prior to his death. Prior to trial, Rivers’s attorney objected to the admissibility of the evidence of preexisting injuries as the State possessed no evidence that such injuries were caused by Rivers. The trial court responded to the pretrial objection by stating that both the State and Rivers’s attorney had “clearly stated their positions” and continued as follows:

“These child cases are getting a little different treatment than what we normally are use[d] to involving adult cases and other type criminal cases. You’re protected on the record on that.”

The tenor of the trial court’s response to Rivers’s objection seems to implicitly deny the request to exclude the evidence, but the Court of Appeals notes that the court never actually ruled upon the motion. Nevertheless, the words “you’re protected on the record” acted as a trap for Rivers’s attorney as the case proceeded to trial, the disputed evidence was introduced, and the objection to its admissibility was never renewed. Unfortunately for Mr. Rivers, he was convicted of his charges and is now serving a lengthy prison sentence.

Rivers’s attorney appealed his conviction on the basis of the disputed evidence of preexisting injuries to the body of the infant victim. And, in fact, the Court of Appeals appears to agree with Rivers that such evidence never should have been presented to the jury as even the State “admitted its strongest argument was the issue presented is unpreserved.” But the Court of Appeals could not reach the question of whether Rivers’s conviction should be overturned because a pretrial evidentiary ruling–even one that is clear and unequivocal–“is not final; unless an objection is made at the time the evidence is offered and a final ruling procured, the issue is not preserved for review.”

Luckily for Mr. Rivers, this issue may be able to be raised in a post-conviction relief proceeding once his appeals have been exhausted. But this case stands as a stern reminder to trial practitioners to ensure that all objections are properly preserved for appeal, lest they be forever waived.

Chappell Smith & Arden, P.A. is comprised of attorneys licensed to practice law in the states of South Carolina, North Carolina, and Georgia. The firm’s attorneys possess extensive trial experience in civil court, criminal court, Worker’s Compensation, Social Security Disability, and the state and federal appellate courts.

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