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R.K.D. v. STATE9/26/1997
ontain separate elements to address the form and subject matter of the evidence, I believe that the Legislature's reason for drafting this statute as it did is based on the extreme importance of protecting an individual's First Amendment rights while advancing the "competing interest" of eliminating child pornography. See Ex parte Felton, 526 So.2d 638, 640 (Ala. 1988) (holding that Alabama's possession of child pornography statute is constitutional.)
Because I believe that the appellant's argument he makes on appeal, that the exhibits do not portray "live acts," is not preserved, this Court should not address this claim. Rule 45B, A.R.App.P. Therefore, I do not believe that the merits can or should properly be reached, and I respectfully dissent from the majority's opinion.
I must respectfully dissent from the majority opinion holding that the appellant's objection at trial was sufficient to preserve for appellate review the issue whether the materials he possessed violated the "live act" provision of § 13A-12-190(12), Code of Alabama 1975.
While the majority opinion justifies its bending of the Alabama Rules of Criminal Procedure by expressing a fear that "the scales of justice [will] rust and collect dust," I believe that judicial restraint requires strict adherence to the procedural rules by which this Court is bound.
Moreover, I disagree with the statement and belief expressed in the majority opinion that to abide by long-established principles of preservation demonstrates a preoccupation with form over substance. "The primary purpose of objections is not to 'preserve error' for appellate review. Their primary purpose is to give the trial court an opportunity to correct that which might otherwise have been error." Berryhill v. State, [Ms. CR-94-2039, April 18, 1997] ___ So.2d ___ (Ala. Cr. App. 1997), quoting Johnson v. State, 500 So.2d 69, 72 (Ala. Cr. App. 1986). See also Ex parte Works, 640 So.2d 1056 (Ala. 1994).
I would therefore refrain from reaching the merits of the appellant's argument and would wait until the issue is properly presented for review, which has been the longstanding precedent of this Court.
McMILLAN, Judge, dissenting.
BROWN, Judge, dissenting.
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