Raising Winning Issues on Appeal

June 23rd, 2017
Elizabeth Franklin-Best

When I meet with clients for the first time, often I’m asked what kinds of issues can be raised in the appeal. This is an incredibly important issue so I thought I would take some time to explain, generally, what issues can be raised in direct criminal appeals in South Carolina.

In South Carolina, our appellate courts strictly adhere to the contemporaneous objection rule. What this means is that our appellate courts will not address issues that have not been 1) objected to, on the record, at the trial, and 2) ruled upon by the trial court judge. So, in other words, trial counsel needs to object, and the judge needs to rule on it. And also, the trial court ruling needs to be averse to the person who wants to appeal (so, for example, if you win your motion, you can’t raise that as a basis for appeal). Other than that, just about anything is fair game to raise!

The kinds of issues that are often raised on appeal include trial court rulings on the evidence that was admitted at trial, improper arguments made by the State, improper removal of qualified jurors based on their race or gender, and improper jury instructions. I also look closely to see if a sufficiency of the evidence claim can be raised. These claims are notoriously difficult to win, but I think they’re valuable, especially if you can use the claim to show how particularly weak the State’s case against the client was at trial. The kinds of issues that cannot be raised on appeal are claims that need additional factual development. So, if you think a witness who testified had a conflict of interest, then you would need to raise that issue in post-conviction relief (PCR) when you can show the court why that witness had a conflict and how that conflict prejudiced you at trial. If your claim is that your lawyer should have called an alibi witness on your behalf, then that’s another claim that will have to be developed in PCR when you have that alibi witness testify at the PCR hearing. Generally, ineffective assistance of counsel claims (either trial counsel ineffectiveness or appellate counsel ineffectiveness) should be raised during PCR and not on direct appeal.

In the past year, our appellate courts have addressed issues relating to the Stand Your Ground law. State v. Jones, 416 S.C. 283, 786 S.E.2d 132 (2016), State v. Manning, 418 S.C. 38, 791 S.E.2d 148 (2016). Our Supreme Court also addressed a number of directed verdict issues. State v. Bennett, 415 S.C. 232, 781 S.E.2d 352 (2016), State v. Pearson, 415 S.C. 463, 783 S.E.2d 802 (2016), State v. Phillips, 416 S.C. 184, 785 S.E.2d 448 (2016). This past year, the Supreme Court also granted relief on a speedy trial violation. State v. Hunsberger, 418 S.C. 335, 2016 WL 5930127.

So, the short answer is that there is a large universe of claims that can be raised, so long as trial counsel makes the proper objections and the judge issues a ruling. A good appellate lawyer will explain all of this to you, and will also help you identify issues that may be raised later, if you’re not successful on the direct appeal.

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