Preservation Reservations in State v. Bell – North Carolina Criminal Law

The defendant in State v. Bell, No. 86A02-2 (N.C. March 21, 2025), failed to object to gender-based discrimination during jury selection. Accordingly, the North Carolina Supreme Court concluded that the “defendant’s J.E.B. claim was not preserved for appellate review.” Slip Op. at 2. If the Supreme Court were reviewing a judgment of conviction on direct appeal, this would not be surprising: a defendant’s failure to raise a constitutional issue at trial generally precludes a court’s consideration of the issue on appeal. But the Supreme Court in Bell was instead reviewing the denial of the defendant’s motion for appropriate relief, where the applicability of the preservation rule is less clear. This post considers Bell’s application of that rule to a postconviction motion.

The Preservation Rule

The requirement for contemporaneous objection is baked into the adversarial process. For historical reasons having to do with judicial economy, the common law left it to the parties, in the first instance, to decide whether or not the rules of evidence were to be enforced. 21 Fed. Prac. & Proc. Evid. § 5032 (2d ed. 2024). Accordingly, error generally may not be predicated upon a ruling which admits evidence unless a timely objection appears of record. G.S. 8C-1, Rule 103(a)(1). More broadly, to preserve an issue for review, a party must have presented to the trial court a timely request, objection, or motion stating the grounds for the ruling desired. N.C. R. App. P. 10(a)(1).

Caselaw recognizes various rationales for the requirement for contemporaneous objection. First, the rule deters gamesmanship, preventing parties from allowing things to happen at trial as a matter of trial strategy and then assigning error to them if the strategy does not work. State v. Canady, 330 N.C. 398, 402 (1991). Second, it creates a record for appeal, “enabling the appellate court to identify and thoroughly consider the specific legal question raised by the objecting party.” State v. Bursell, 372 N.C. 196, 199 (2019). Third, it promotes efficiency, encouraging parties to inform the trial court of errors so that the trial court can remedy such errors and eliminate the need for a new trial. State v. Odom, 307 N.C. 655, 660 (1983). Simply stated, “[w]hen a party alerts the trial court of a potential error, the court can correct it.” State v. Reber, 386 N.C. 153, 157 (2024).

True, these rationales are frequently recited when the court wishes to apply an exception. Under the plain error rule, an issue that was not preserved below may be reviewed on appeal when the defendant shows that a fundamental error occurred at trial and that the error had a probable impact on the outcome. N.C. R. App. P. 10(a)(4); State v. Reber, 386 N.C. 153, 158 (2024). Plain error review is reserved, however, for evidentiary or instruction errors. Reber, 386 N.C. at 163. Appellate Rule 2 likewise permits a court to suspend the preservation rule, but its exercise is limited to exceptional circumstances. N.C. R. App. P. 2; State v. Maness, 363 N.C. 261, 274 (2009).

Motions For Appropriate Relief

Unlike appeal to a higher court, the motion for appropriate relief was created by statute to enable a party to bring errors that occurred prior to or during trial to the attention of the trial judge. According to the commentary, the legislature sought “to maximize the capability of correcting errors at [the] trial level in order to avoid the necessity of appeal.” Ch. 15A, Art. 89 cmt. Hence, trial judges are empowered to hear and determine MARs filed in their districts. G.S. 15A-1413. And, assuming formal requirements are met, defendants may raise certain claims by MAR at any time, even many years after conviction. G.S. 15A-1415; cf. G.S. 15A-1420 (formal requirements).

Balancing “concepts of basic fairness with the desire for finality in criminal appeals,” the legislature added provisions to ensure that “there is but one chance to raise available matters after the case is over.” G.S. 15A-1415 cmt. Consequently, the statutory grounds for denying an MAR include that upon a previous appeal the defendant was in a position adequately to raise the issue but failed to do so. G.S. 15A-1419(a)(3). This provision requires a reviewing court to determine whether the MAR claim could have been raised in a previous appeal, and the claim is barred only if the record contained sufficient information to permit the reviewing court to make all necessary legal and factual determinations to resolve the claim. State v. Hyman, 371 N.C. 363, 383 (2018).

As a vehicle for raising trial error, allowing the trial court to address the issue on the record and correct any error, an MAR itself could satisfy at least some of the purposes of the preservation rule. Still, it is curious that our MAR statutes contain no provision regarding preservation. See State v. Taylor, 212 N.C. App. 238, 245 (2011). Before Bell, our Supreme Court rejected the suggestion that a defendant’s failure to object at trial precluded the trial court’s consideration of the issue in a later MAR. “The legislature,” it said, “did not include any language suggesting that a defendant’s failure to object at trial triggers application of the procedural bar.” State v. Allen, 378 N.C. 286, 311 (2021), overruled in part on other grounds by State v. Walker, 385 N.C. 763 (2024).

State v. Bell

The defendant in State v. Bell and two other men brutally murdered eighty-nine-year-old Elleze Kennedy in January 2000 by locking her in the trunk of her car and setting the car on fire. Bell, Slip Op. p. 2. The defendant was convicted in August 2001 of first-degree murder and sentenced to death. The North Carolina Supreme Court upheld the conviction and sentence in October 2004, and the United States Supreme Court denied review. Slip Op. p. 6.

In May 2006, the defendant filed a motion for appropriate relief, and in April 2012 he filed an amendment to his MAR. In his amended MAR, the defendant claimed for the first time that the State engaged in unconstitutional gender-based discrimination during jury selection, in violation of J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). In December 2012, the trial court found the defendant could have raised the claim on direct appeal, concluded the claim was procedurally barred under G.S. 15A-1419(a)(3), and summarily denied the MAR. Slip Op. pp 6-8. The North Carolina Supreme Court allowed discretionary review. Slip Op. p. 8. (The appeal was then held in abeyance while the trial court conducted an evidentiary hearing on the J.E.B. claim. Slip Op. p. 9.)

The Supreme Court first addressed the issue of whether the defendant had preserved his claim that the prosecutor impermissibly struck a juror based on gender. It recited the rule that constitutional issues not raised and ruled on at trial will not be reviewed for the first time on appeal. The Supreme Court observed that neither the defendant nor his co-defendant here made a gender-based discrimination objection at the time of jury selection, and they did not raise the issue in their initial appeal. “Therefore,” it said, the “defendant’s claim is not preserved.” Slip Op. p. 17-18.

Moreover, the Supreme Court added, the claim was procedurally barred. Responding to the defendant’s argument that he was not in a position adequately to raise the J.E.B. claim on appeal, the Supreme Court reviewed the evidence available at the time that might have supported such a claim, including the prosecutor’s statements, data for statistical analysis, and data for comparative analysis. It concluded the trial court did not err in ruling the claim barred. Slip Op. pp. 19-25. (The Supreme Court also considered, and rejected, exceptions to the procedural bar. Slip Op. p. 25-27).

In sum, the “defendant failed to preserve his J.E.B. claim, because defendant failed to make a J.E.B. objection at trial,” and even assuming the claim was preserved, “the claim is nevertheless not reviewable because defendant failed to raise the issue on direct appeal.” Slip Op. p. 27-28. “An objection at trial is critical. The outcome of this case emphasizes the importance of preservation—not only for the defendant, but for the sake of the Constitution.” Slip Op. p. 29. Accordingly, the Supreme Court affirmed the trial court’s order denying the defendant’s MAR.

Conclusion

Failure to object at trial apparently does not dislodge a defendant from a position to raise the issue on appeal. In Bell, the Supreme Court concluded that the defendant, though he failed to preserve his J.E.B. claim, could have raised the issue in his previous appeal from the judgment. This was not owing to some exception to the preservation rule. Jury-selection issues are not subject to plain error review in any event, and Rule 2 is limited to exceptional cases. Rather, the J.E.B. claim in Bell was deemed procedurally barred because the Supreme Court found that the record contained sufficient information to permit a reviewing court to resolve the claim on the merits.

In some ways, this conclusion reaffirms the proposition from Allen that the procedural bar of G.S. 15A-1419 operates independently of the preservation rule. As the Supreme Court said in that case, G.S. 15A-1419(a)(3) “contains no language restricting post-conviction review to claims that were preserved at trial.” State v. Allen, 378 N.C. 286, 311 (2021). But then Allen recited this proposition to allow a claim to be raised by MAR despite the defendant’s failure to object, whereas Bell finds the defendant’s failure to object at trial supported the denial of his MAR. To the extent Bell overrules Allen on this point, it does so implicitly. Indeed, Allen is not cited in Bell at all.

Prosecutors tasked with responding to MARs may find support in Bell for the argument that a defendant’s failure to object at trial constitutes an independent basis to deny a later MAR. Bell’s conclusion that the defendant’s failure to preserve his J.E.B. claim supported the trial court’s denial of his MAR certainly implies as much. At the same time, there is language in Bell to support the argument that the preservation rule applies only to appellate review, i.e., not to postconviction litigation in the trial court. If that is the case, then a defendant’s failure to object at trial would not preclude his raising the issue by MAR, though it might insulate the trial court’s ruling – whatever it might be – from appellate scrutiny. Addressing the J.E.B. claim as though on direct appeal, Bell leaves some questions unanswered about how the preservation rule applies at postconviction.