The Virginia Court of Appeals did some line-drawing yesterday, and let criminal defense lawyers know there is at least one case that should not have drawn a Rule 5A:18 argument.
Defense lawyers know the power of the contemporaneous objection rule, and how carefully the appellate court scrutinizes the record to make sure trial counsel hit all the right marks to give the trial judge the chance to cure any alleged errors down below.
During trial, lawyers sometimes feel like they’re walking a tightrope, trying to object enough to preserve an issue for appeal, but not object so much they irritate the trial judge.
The lawyer in Byrd v. Commonwealth got it just right.
Bobby Byrd wanted a Portsmouth Circuit judge to suppress heroin found in his pocket when Byrd was picked up on an informant’s tip. The judge admitted the heroin and found Byrd guilty.
On appeal, the commonwealth argued Byrd’s claim was barred because he “failed to object with the requisite level of specificity,” wrote Judge Robert J. Humphreys for the appeals court.
Humphreys, a former prosecutor, took a look at how much objecting was enough. Humphreys said Byrd’s only argument on appeal was that the confidential informant’s tip did not establish probable cause to arrest him.
“Byrd went to great lengths to bring this argument to the attention of the trial court,” through a pretrial motion to suppress, argument at the suppression hearing and through a continuing objection at trial, Humphreys wrote.
In fact, the trial court said enough already.
The trial judge acknowledged Byrd’s “continuing objection,” saying he would “consider your objection made. You’re not waiving it when you don’t make it again.”
“[I]t could hardly be any clearer that Byrd properly preserved this issue for appeal,” Humphreys said.
Maybe the commonwealth fought so hard on the waiver because they suspected the search was shaky. The unanimous panel said there was no probable cause and reversed Byrd’s heroin conviction.