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5th Cir. Denies Appeal When No Definitive Ruling on Objection

By Tanya Roth, Esq. on June 17, 2011 4:07 PM

Bruce Wayne Potts' parents had a different idea when they named their child after a crime-fighting superhero. They didn't foresee that he'd be on the opposite side of the law, facing off against the Fifth Circuit Court of Appeals on a Miranda issue and the proper use of appellate procedure.

The issue arose after Potts was arrested during a vehicle stop, which yielded hidden firearms once his car was searched. This case is very important for criminal defense attorneys arguing within the Fifth Circuit, as it shows the importance of obtaining definitive rulings on objections, in order to preserve them for appeal.

Quick facts:

Bruce Wayne Potts was stopped by police. He was told to park the car and turn off the engine. When he reached under his seat, the officer asked him to show his hands.

Potts didn’t immediately comply. This didn’t go over too well with the officer, who then asked Potts to leave the car, at which point police saw a firearm from under the drivers’ seat.

Potts was handcuffed and asked if the firearm belonged to him. He didn’t respond. After a search of the car, officers found more weapons and some ammo. So, they arrested Potts.

At trial, the prosecution had the officer testify about Potts’ silence, when he was asked whether the gun was his. His lawyers objected to the testimony under the Fifth Amendment. The court did not rule on the objection and instead, made a suggestion that the jury could be instructed that Potts had no obligation to answer the question by law.

Potts agreed to that suggestion and his lawyers didn’t object any further on that testimony. He was eventually found guilty.

Did Potts waive his right to appeal it?

The law:

Potts appealed and said that the government had violated his Fifth Amendment right against self-incrimination and that the court had erred in allowing the testimony.

Here’s the appellate procedure technicality that likely has Potts’ attorneys kicking themselves: When they had Potts agree to the jury instructions, no ruling was obtained on the objection. With no ruling, Potts was deemed to have accepted the court’s instructions and he failed to preserve the issue for appeal.

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