No “sandbagging” allowed – the purpose behind the preservation rule

By Brad McCullough

No “sandbagging” allowed. That was a message conveyed by the Court of Appeals recently in Peterson v. State, 444 Md. 105 (2015). The Court explained that the purpose behind the preservation rule – i.e.¸ the rule that provides that appellate courts will review only those issues that were raised and preserved in the trial court – is to avoid unfairness and to prevent “sandbagging.” Id. at 126. If a litigant wants an appellate court to review and correct what that litigant sees as an erroneous ruling made by the trial court, the litigant must have given the trial judge a fair chance to make the correct ruling and to fix any mistakes that he or she made. In other words, the trial judge shouldn’t be “sandbagged.” And as one of the cases cited by the Peterson Court demonstrates, the concern for fairness applies also to opposing counsel. Robinson v. State, 410 Md. 91, 104 (2009); see also e.g. In re Kaleb K, 390 Md. 502, 513 (2006) (holding that petitioner’s argument was not preserved and that allowing petitioner to raise on appeal a new argument, which had not been raised and argued in the circuit court, “would result in ‘sandbagging’ the State and the trial . . . court, which is the precise result that Rule 8-131(a) was designed to avoid”).[1]

Peterson offers an example of this principle at work. The defendant faced various felony charges arising from a drug deal gone fatally bad. Defense counsel tried to cross-examine a witness about criminal charges that were pending against him, but the trial judge sustained the prosecution’s objections. On appeal, the defendant argued that the trial court erred in restricting the cross-examination, urging that he was entitled to show that the witness was biased or had a motive to testify falsely. Specifically, the defendant wanted to explore “whether the witness expect[ed] some benefit with respect to pending charges as a result of testimony on behalf of the prosecution.” 444 Md. at 135.

Defendant, however, had not made a clear proffer to the trial judge and had therefore not adequately preserved the issue for appellate review. While pending criminal charges “are part of the factual predicate for asking” a witness about his possible “bias or motive,” the existence of those “pending charges alone is not a sufficient predicate for such a question.” Id. There must also be some evidence “that the witness has an expectation of benefitting from the testimony with respect to the pending charges.” Id. at 136.

That evidence can be either direct, “e.g., an agreement with the prosecution to resolve charges in return for testimony,” or circumstantial, such as a release from custody, a decision to dismiss or forego charges, or postponing the disposition of a charge of violating probation. Id. at 135-36 (footnotes omitted). This is where defense counsel fell short. He failed to clarify for the trial court what he was trying to do – that he was not simply trying to impeach the witness through the use of pending charges, but that he had a basis for showing that the witness expected some benefit as a result of testifying for the prosecution.

However, the proffer that made defense counsel’s intention clear emerged in pieces and spurts, some of it in the context of a legal argument about a different question before any witness had taken the stand and much of it after the witness was long gone. An appellate court has the leisure to stitch together different pieces of transcript and see where the defense wished to go. It is not surprising that the trial court did not. On this record, we cannot say that the defense adequately preserved the issue that it has raised on appeal as to the questioning of [the witness] about his expectation of a benefit.

Id. at 141 (emphasis in original).[2]

Defense counsel also tried to cross-examine another prosecution witness about hallucinations that the witness had reported. According to counsel, the fact that the witness had experienced hallucinations called into question the witness’s ability to perceive events at the time of the shooting. But the witness had not reported having hallucinations until after the shooting, so the trial judge did not permit the questioning.

On appeal, the defense pursued a different theory of relevance. The defense now argued that the hallucinations affected the witness’s ability to recall what he had seen at the time of the shooting. The Court of Appeals explained, however, that the “revised theory of cross-examination” had not been presented to the trial judge “at the time [the witness] was on the stand.” Id. at 148. Consequently, the Court was “hard put to say that [the revised theory] was preserved as a basis for overturning Mr. Peterson’s conviction on the ground that the trial judge failed to allow his counsel to pursue it.” Id.

In short, while there are specific rules for preserving errors arising from different types of rulings (e.g. those dealing with evidentiary rulings, jury instructions, or the composition of a jury), the basic principle remains the same. Trial counsel must let the trial judge and opposing counsel know what ruling counsel wants and why he or she wants it. And that must be done at a time when the trial judge can decide whether to grant the request and opposing counsel can tell the trial judge why the relief should not be granted. At its core, that is the driving principle underlying the preservation rule.


[1] Rule 8-131 (a) provides:

The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

[2] On appeal, Peterson’s counsel tried various ways to show that the issue regarding the expectation of benefit had been preserved, including pointing to charges that were pending against the witness in Virginia. The Court said: “To the extent the defense preserved this issue at all, it was with respect to whether [the witness] had an expectation of benefit with respect to pending charges in Virginia.” 444 Md. at 139. The Court was skeptical that Peterson had preserved the issue with respect to those charges, but ultimately concluded that it “need not resolve whether defense counsel adequately preserved the issue in these circumstances,” because it concluded that “the trial court would have had discretion to exclude questions based on the pending charges in Virginia.” Id. at 140, 141.

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