Theme of the Week: Failed to Preserve

28 03 2012

The Arkansas Court of Appeals affirmed two cases, dismissed one, and ordered rebriefing in two.  The failure in the two that were affirmed were that there were no contemporaneous objections. 

In Chestang v. State, the Court of Appeals simply restated the longstanding principle that directed verdict motions must be made to elements of the lesser included charges to preserve a challenge to the sufficiency of the evidence.  This is the most commonly made error by trial counsel.  In addition, the appellant argued that allowing an officer to testify why the appellant was a  maximum security inmate was reversible error.  The only objection made at trial was that the answer was not within the personal knowledge of the officer.  It was in fact within the personal knowledge of the officer and the trial court correctly permitted the testimony.  On appeal, the appellant argued the answer was hearsay.  The Court of Appeals refused to address this argument because it was not presented to the trial court.


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