Wednesday, April 04, 2007, 6:41 PM

Another Assignment of Error Deemed Inadequate

In an unpublished criminal case decided yesterday, the COA in State v. Anthony deemed an assignment of error inadequate.

The trial court permitted Captain Williams to testify as a character witness for Tony Wrighton. The defendant assigned error as follows: "The court erred when it overruled Defendant's objection to the State's question to Captain Williams whether he was familar with Tony Wrighton's reputation in the community."

The COA ruled that this assignment of error was deficient under Rule 10(c) because it purportedly "fails to articulate a particular rationale for why the trial court's actions were in error."

This teaches once again that certain judges on the COA are requiring that assignments of error not simply identify what the trial court did that is being challenged (e.g., admitting testimony by Captain Williams about Wrighton's reputation in the community) but also why that action by the trial court is alleged to be error. The why requires something identifying the legal argument that will be briefed on appeal. And this may be required even when the challenged act by the trial court is easily identified (e.g., the admission of Captain Williams' answer to a single question about Wrighton's reputation in the community).

Unfortunately, when the COA deems assignments of error deficient, it rarely takes the next step of informing members of the bar how the assignment could've been drafted differently to satisfy Rule 10(c). For example, in this case, could the appellant have satisfied Rule 10(c) simply by adding "on the ground that the character testimony was not admissible under Rules of Evidence 405 or 608"? If so, then what does that additional verbiage add in terms of putting the appellee (here, the State) or the Court on notice as to the issue to be briefed on appeal?

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