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DEFENSE WAIVED ANY OBJECTION TO A PROHIBITED CONVERSATION BETWEEN A COURT OFFICER AND JURORS BY ASKING THAT DELIBERATIONS CONTINUE DESPITE THE CONVERSATION; THE CONVERSATION DID NOT CONSTITUTE A MODE OF PROCEEDINGS ERROR.

The Second Department determined the defense waived objection to a court officer's conversation with three jurors during deliberations. Defense counsel asked that the jurors be questioned about their ability to continue and, after the questioning, asked that the jury continue to deliberate. The Second Department further held the communication by the court officer did not constitute a mode of proceedings error which need not be preserved. The decision includes a clear explanation of the types of issues which can be raised in a Criminal Procedure Law (CPL) 330.30 motion to set aside the verdict and the distinction between waiver and preservation:

Except when authorized by the court or when performing administerial duties with respect to the jurors, court officers may not communicate with jurors or permit any other person to do so (see CPL 310.10[1]…). In considering a motion to set aside a verdict pursuant to CPL 330.30(1), however, a trial court may only consider questions of law, not fact … . Moreover, a trial court may only consider claims of legal error under CPL 330.30(1) where those claims are preserved for appellate review … .

Waiver and preservation are separate concepts … , although they are often “inextricably intertwined” … . Waiver connotes the intentional relinquishment or abandonment of a known right … . Where a defendant assents at trial to a court's decision, agrees with the court's determination, or requests that the court take the actions the court ultimately took, the defendant cannot, after the fact, claim the action constituted error … . People v Armstrong, 2016 NY Slip Op 02843, 2nd Dept 4-13-16


TRIAL JUDGE’S FAILURE TO WARN DEFENDANT OF THE CONSEQUENCES OF DISRUPTIVE BEHAVIOR BEFORE REMOVING DEFENDANT FROM THE COURTROOM WAS REVERSIBLE ERROR.

The Second Department reversed defendant's conviction because the trial judge did not first warn defendant about the consequences of disruptive behavior before removing defendant from the courtroom:

 

CPL 260.20 provides, in relevant part, “that a defendant who conducts himself in so disorderly and disruptive a manner that his trial cannot be carried on with him in the courtroom may be removed from the courtroom if, after he has been warned by the court that he will be removed if he continues such conduct, he continues to engage in such conduct.”

In the present case, the trial court erred in removing the defendant from the courtroom without first warning him that he would be removed if he continued his disruptive behavior … . Contrary to the People's contention, the court's statement to the court officer that, “If he speaks again, officer, do what you need to do,” did not constitute a sufficient warning. This statement was not directed to the defendant, and failed to adequately inform him of the “potential consequences which might result from his continued disruptive behavior” … . Furthermore, while the defendant's conduct was clearly disruptive, it was not violent in nature, and did not “create[ ] an emergency necessitating his immediate removal” where “the court had no practical opportunity to issue a verbal warning that [the] defendant would be removed if he continued to engage in such conduct” … . People v Burton, 2016 NY Slip Op 02847, 2nd Dept 4-13-16


EXCLUSIONARY LANGUAGE IN HARASSMENT STATUTE NEED NOT BE PLED AND NEGATED IN THE CHARGING DOCUMENT; THE EXCLUSIONS ARE PROVISOS WHICH CAN BE RAISED AS DEFENSES.

The Third Department, in the context of a family offense, determined the portions of the second degree harassment statute which state the subdivision does not apply “to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended” (Penal Law § 240.26…)” were “provisos.” The respondent argued that the labor and railroad provisions in the statute were “exceptions” which must be affirmatively pled and negated in the charging document. The Third Department found the provisions were “provisos” which can be asserted as defenses, but which do not have to be pled:

 

“The general rule regarding statutory crimes is that 'exceptions must be negatived by the prosecution and provisos utilized as a matter of defense'” … . In attempting to distinguish between exceptions and provisos, courts will look to whether the defining statute “contains as part of its enacting clause an exception to the effect that under certain circumstances the offense is not to be considered as having been committed” … , in which case a true exception generally will be found, or whether the exception arises either by way of a statutory amendment or reference to a statute outside of the Penal Law, in which case the exception generally will be regarded as a proviso … .

As originally enacted, Penal Law § 240.26 did not contain the exclusionary language at issue; such language was added when the statute was amended in 1994 (see L 1994, ch 109, § 1) to “clarif[y] that activities protected by certain federal labor statutes are not included within the definition of harassment” (Governor's Approval Mem, Bill Jacket, L 1994, ch 109, at 7). Further, as a review of the statute itself makes clear, application of the exclusionary language requires reference to numerous federal statutes outside of the Penal Law. Under these circumstances, the language excluding certain labor activities or disputes from the definition of harassment in the second degree “is more accurately construed as a proviso, which may be raised as a defense [by the charged party], rather than an exception, which must be [affirmatively] pleaded” and negated by the charging party … . Matter of Rogers v Phillips, 2016 NY Slip Op 02687, 3rd Dept 4-7-16


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CHALLENGE TO THE JURY INSTRUCTION ON CAUSATION OF DEATH IS SUBJECT TO THE PRESERVATION REQUIREMENT; DEFENDANT’S FAILURE TO OBJECT PRECLUDES REVIEW; STRONG DISSENT ARGUED THE JURY INSTRUCTION IS REVIEWABLE BECAUSE IT RELIEVED THE PEOPLE OF THEIR BURDEN OF PROOF.

The First Department, over an extensive dissent, determined defendant's appellate challenge to the jury instruction on causation of death was subject to the preservation requirement. The victim was assaulted by the defendant and died later at the hospital. The defense presented an expert who testified the victim was improving until he fell in the hospital. The cause of death, according to the defense expert, was the hospital's negligence in treating the victim after the fall. The defendant did not object to the causation jury instruction. The dissent would have reversed, either finding the preservation requirement did not apply because the jury instruction relieved the People of their burden of proof, or in the interest of justice:

Defendant failed to raise any challenge to the court's charge regarding causation of death at a time when the court could have easily rephrased the instruction. The issue is therefore unpreserved for appellate review (see CPL 470.05[2]). The claimed error does not fall within the “very narrow exception” discussed in People v Thomas (50 NY2d 467, 471 [1980]), as the dissent suggests. That narrow exception is only applicable “when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute” (id.). Here, as was the case in Thomas, preservation was necessary because defendant essentially claims that “a portion of the charge could, in the particular case, be interpreted as having a contrary effect” to the burden of proof charge that was correctly stated by the court (id. at 472). Nor is the exercise of interest of justice jurisdiction warranted; defendant was not deprived of a fair trial (see CPL 470.15[6] [a]). As an alternative holding, we consider the charge, viewed as a whole, to have properly conveyed the law regarding whether the assault was a sufficiently direct cause of the victim's death … . People v Castillo, 2016 NY Slip Op 02709, 1st Dept 4-7-16


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DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER.

Although deemed harmless error in this drug conspiracy prosecution, the Second Department determined a detective should not have been allowed to testify (as an expert) about the alleged roles played by people overheard in recorded phone calls:

It was proper to permit the detective to describe certain practices and define certain terms that have a “fixed meaning . . . within the narcotics world” … . However, it was error to permit the prosecutor to elicit testimony as to the roles played by the individuals overheard in the phone calls, and the relationships among them, for example, that several were “runners or workers” for the defendant or codefendant, and the meanings of certain “case-specific” terms that he had discovered in the course of the investigation. As the Court of Appeals cautioned in People v Inoa, where, as here, “the trial court qualifie[s] a government agent, intimately involved in the investigation of the case and development of the prosecution, to testify as an expert,” there is a danger that the agent will end up “testifying beyond any cognizable field of expertise as an apparently omniscient expositor of the facts of the case” (id. at 473), thereby usurping the role of the jury. Also improper was the testimony, elicited by the prosecutor from members of the surveillance teams who observed the defendant and his associates at the locations described in the phone calls, that what they witnessed was consistent with a drug transaction … . Nevertheless, we find that the improperly admitted testimony was harmless, as the proof of the defendant’s commission of the charged crimes was overwhelming, and there is “no significant probability that, but for the error, the verdict . . . would have been less adverse” … . People v Melendez, 2016 NY Slip Op 02667, 2nd Dept 4-6-16

CRIMINAL LAW DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)/EVIDENCE (CRIMINAL LAW, DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)/EXPERT OPINION (CRIMINAL LAW, DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)

JUDICIAL DIVERSION PROGRAM AVAILABLE TO DEFENDANTS CHARGED WITH BOTH QUALIFYING OFFENSES AND OFFENSES WHICH ARE NEITHER QUALIFYING NOR DISQUALIFYING.

The First Department, in a full-fledged opinion by Justice Sweeny, determined the defendant was eligible for judicial diversion where defendant was charged with both statutorily qualifying offenses and other offenses which were nowhere defined as qualifying or disqualifying offenses:

The Legislature amended the DLRA [Drug Law Reform Act] in 2009, enacting CPL 216.00 and 216.05 to create a mechanism for judicial diversion. Under this program, eligible felony offenders whose drug or alcohol abuse contributed to their criminal conduct, may, at the discretion of the court, be afforded the opportunity to avoid a felony conviction and a prison sentence by successfully participating in a judicially supervised substance abuse program. Unlike prior drug offense programs, judicial diversion does not require the prosecutor’s consent … . * * *

… [The statute] sets forth a list of disqualifying offenses/conditions that prevent a defendant from qualifying for judicial diversion, although as noted, even some of those offenses may not prevent disqualification with the People’s consent. In applying the principle “espressio unius est exclusio alterius,” “an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . The inescapable conclusion is that the Legislature’s decision not to list certain offenses as disqualifying means their mere inclusion in an indictment will not prevent an otherwise eligible defendant from making an application for judicial diversion. People v Smith, 2016 NY Slip Op 02596, 1st Dept 4-5-16

CRIMINAL LAW (JUDICIAL DIVERSION PROGRAM AVAILABLE TO DEFENDANTS CHARGED WITH BOTH QUALIFYING OFFENSES AND OFFENSES WHICH ARE NEITHER QUALIFYING NOR DISQUALIFYING)/JUDICIAL DIVERSION PROGRAM (JUDICIAL DIVERSION PROGRAM AVAILABLE TO DEFENDANTS CHARGED WITH BOTH QUALIFYING OFFENSES AND OFFENSES WHICH ARE NEITHER QUALIFYING NOR DISQUALIFYING)

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FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, determined father’s recording of threats made to his infant son by mother’s boyfriend was not eavesdropping, which is prohibited by statute. Rather, father was deemed to have consented to the recording on his son’s behalf. Father had attempted to call the child’s mother. For some reason, the cell phone call went through but was not picked up by anyone. Father could hear the boyfriend threaten to beat his son. Using a cell phone function, the boyfriend’s words were recorded. The boyfriend was subsequently arrested for assault against the child and endangering the welfare of a child. The recording was played at trial. Recording conversations is prohibited in New York as illegal eavesdropping, unless one of the parties to the conversation consents. Here, the Court of Appeals determined the eavesdropping prohibition did not apply because the child was deemed to have consented to the recording. In addition, the Court of Appeals found the trial judge’s erroneous jury instruction, which allowed the jury to consider an accomplice theory not charged in the indictment, constituted harmless error. The court concluded, based upon the trial evidence, the jury could not have convicted the defendant of any offense other than what was charged. With respect to the recorded conversation, the court wrote:

There is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child’s conversation out of a genuine concern for the child’s best interests. By contrast, the vicarious consent doctrine recognizes the long-established principle that the law protects the right of a parent or guardian to take actions he or she considers to be in his or her child’s best interests. Yet it also recognizes important constraints on that right, by requiring that the parent or guardian believe in good faith that it is necessary for the best interests of the child to make the recording, and that this belief be objectively reasonable. People v Badalamenti, 2016 NY Slip Op 02556, CtApp 2016

CRIMINAL LAW (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/EVIDENCE (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/EASVESROPPING FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/PARENT-CHILD (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)

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COURT PROPERLY EXCLUDED SPECULATIVE EVIDENCE OF THIRD-PARTY CULPABILITY; THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE; RATHER THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined, under an abuse of discretion standard, evidence of third-party culpability was properly excluded as speculative. Defendant was not, therefore, deprived of his constitutional right to present a complete defense when the trial court precluded evidence the defendant’s brother, Warren, was the beneficiary of a $500,000 life insurance policy taken out by the murder victim.  Here defense counsel made no specific attempt to demonstrate Warren killed the victim. Defense counsel made only vague assertions “others” could have committed the crime. The Court of Appeals made it clear there is no heightened standard for the admissibility of evidence of third-party culpability. Rather courts should apply the usual balancing test and exclude such evidence where it has slight probative value and a strong potential for undue prejudice, delay and confusion or where the evidence is so remote it does not connect the third party to the crime:

… [A]dmission of third-party culpability evidence does not necessarily require a specific accusation that an identified individual committed the crime. For example, a proffer of an unknown DNA profile may be sufficient. And we reject the trial court’s assertion that such a specific accusation “is an essential element of third-party culpability.” Such a requirement would conflict with the balancing analysis that we … reaffirm today. Nevertheless, defense counsel’s argument must be assessed based on the proffer as articulated … . The trial court was within its discretion in finding that proffer speculative and in determining the evidence to support it would have caused undue delay, prejudice, and confusion. People v Powell, 2016 NY Slip Op 02555, CtApp 4-5-16

CRIMINAL LAW (CRIMINAL LAW, COURT PROPERLY EXCLUDED SPECULATIVE EVIDENCE OF THIRD-PARTY CULPABILITY)/EVIDENCE (CRIMINAL LAW, THIRD-PARTY CULPABILITY, THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE, RATHER THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES)/THIRD PARTY CULPABILITY (CRIMINAL LAW, THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE, RATHER, THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES)

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DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, with a concurring opinion by Judge Pigott, rejected defendant’s challenge to the use at trial of recordings of his phone calls made from Rikers Island during pre-trial incarceration. Prosecutors routinely request recordings of nonprivileged inmate phone calls and pour through them for use at trial. The Court of Appeals did not condone the practice, and the concurring opinion laid out how access to the phone calls prejudices defendants who cannot make bail:

In order to properly address and frame defendant’s legal claims, we first clarify what defendant does not allege on this appeal. He does not allege that any conversations with his defense counsel were recorded and admitted at trial, or that the Department permits such monitoring. To the contrary, defendant recognizes that the Operations Order expressly prohibits the recording and monitoring of conversations with an inmate’s attorney. Nor does defendant assert that the intention of the City’s regulation or the Department’s Operations Order is to create and collect information strictly for use by the prosecution against a detainee at trial. Defendant candidly admits that the Department has a legitimate interest in recording and monitoring detainee telephone communications.

Defendant instead challenges what he describes as the Department’s practice of “automatic, unmonitored harvesting of intimate conversations of pre-trial inmates,” and the subsequent dissemination of the Department’s recordings to District Attorneys’ offices for use in criminal prosecutions. Defendant claims the practice violated his right to counsel, exceeds the scope of the Department’s regulatory authority, and was conducted without defendant’s consent. The claims are either without merit or unpreserved and therefore do not warrant reversal and a new trial. People v Johnson, 2016 NY Slip Op 02552, CtApp 4-5-16

CRIMINAL LAW (EVIDENCE, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)/EVIDENCE (CRIMINAL LAW, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)/INMATES (RECORDED PHONE CALLS, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)

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THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a three-judge concurring opinion, determined defendant was not deprived of a fair trial by the trial judge’s failure to take any action when defense counsel informed him family members were wearing T-shirts remembering the murder victim. The Court of Appeals found the trial judge’s failure to act was error. But, under the facts, the error did not deprive defendant of a fair trial. The fact that the trial judge noticed family members had worn the T-shirts before the day when defense counsel objected did not bring up those prior occurrences on appeal. Defense counsel did not elicit a ruling from the trial judge (by moving for a mistrial) based on the pror occurrences, therefore only the wearing of the T-shirts on the day counsel objected was before the court:

We conclude … that although spectator displays depicting a deceased victim should be prohibited in the courtroom during trial, and although the trial court here erred in refusing to intervene upon defense counsel’s request, the error is subject to harmless error analysis. Defendant contends that the deprivation of his right to a fair trial can never be considered harmless. We agree only insofar as there can be no harmless error analysis if an appellate court concludes that spectator misconduct was so egregious and the trial court’s response so inadequate that the defendant was deprived of a fair trial. Where “there has been such error of a trial court . . . or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial,” without regard to whether the proof of guilt was overwhelming or whether “the errors contributed to the defendant’s conviction”… . Here, however, the spectator conduct was not so egregious that defendant was deprived of a fair trial.

A per se rule of reversal is inappropriate in the context of spectator displays of a deceased victim’s image because such displays may vary widely. For example, the display could range from a small button worn on a spectator’s clothing to a life-size image. A trial court’s refusal to intervene in every such display upon defense counsel’s objection is error. However, not every such display requires the drastic remedy of a mistrial, or an appellate reversal. The trial court or the appellate court, respectively, must make that determination based on the unique circumstances of each case.

Under the particular circumstances of this case, we conclude that the trial court’s error in failing to instruct the spectators to remove or cover the shirts upon defense counsel’s objection is harmless. Consequently, defendant was not deprived of a fair trial. People v Nelson, 2016 NY Slip Op 02554, CtApp 4-5-16

CRIMINAL LAW (THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS)/SPECTATOR DISPLAYS (CRIMINAL LAW, THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS)/APPEALS (PRESERATION OF ERROR, CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO ELICIT A RULING ON INSTANCES OF SPECTATOR DISPLAYS ON DAYS PRIOR TO THE DAY WHEN COUNSEL OBJECTED, THE PRIOR INSTANCES WERE NOT BEFORE THE COURT ON APPEAL)/PRESERVATION OF ERROR (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO ELICIT A RULING ON INSTANCES OF SPECTATOR DISPLAYS ON DAYS PRIOR TO THE DAY WHEN COUNSEL OBJECTED, THE PRIOR INSTANCES WERE NOT BEFORE THE COURT ON APPEAL)

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