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Wagner v. Georgetown University Medical Center3/8/2001
lexible and lenient). Similarly, the fact that an appeal was still pending did not without more give rise to a presumption that cross examination about the prior bad act in question would be unfair. Cf. D.C. Code § 14-305 (d) (1995) (pendency of an appeal from a conviction does not render evidence of that conviction inadmissible for purposes of impeachment, though evidence of pendency of appeal is also admissible); accord, Hale v. United States, 361 A.2d 212, 214-15 (D.C. 1976).
The Wagners failed to make their other arguments in the trial court. The Wagners did not dispute that the "unethical practices" of which Dr. Austin was accused bore directly on his veracity, and they made no attempt to adduce evidence to disprove the accusation on its merits. Apart from their suggestion that Dr. Austin's appeal to the full membership of the AANS might turn out to be successful, the Wagners did not argue that Dr. Kobrine's counsel lacked an adequate factual predicate to examine Dr. Austin, or that his impeachment would result in unfair prejudice. Furthermore, the Wagners did not contend that the court needed to make further inquiry into the underlying facts before it ruled on the proposed impeachment.
"As a general rule, matters not properly presented to a trial court will not be resolved on appeal." Williams v. Gerstenfeld, 514 A.2d 1172, 1177 (D.C. 1986); see Miller v. Avirom, 127 U.S. App. D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967) (" uestions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party's thesis, will normally be spurned on appeal"). This rule is especially applicable to a litigant's failure to make an objection to evidence "promptly and specifically," at a time when it might be possible for the opposing party to meet its force or for the trial court to cure any omission or error. In re T.H.B., 670 A.2d 895, 902 (D.C. 1996) (quoting John W. Strong, McCormick on Evidence § 55, at 221 (4th ed. 1992)). "A court deviates from this principle only in exceptional situations and when necessary to prevent a clear miscarriage of justice apparent from the record." Williams, 514 A.2d at 1177.
We perceive no just reason to deviate from the waiver rule in this case. The Wagners had a fair chance to be heard, and there is no evidence that the impeachment of Dr. Austin was in fact misleading. Counsel for the Wagners was not caught by surprise; he was aware ahead of time that the defense might seek to impeach Dr. Austin based on the AANS censure recommendation, and he was aware of the factual basis of that recommendation. In such circumstances it is fair to presume that counsel's decision to raise certain arguments and not others was an informed one. Moreover, if counsel thought the court needed more information about the AANS censure to assess the probative value or the prejudicial effect of the proposed impeachment, he had the opportunity to voir dire Dr. Austin and elicit that information. It was counsel's choice - perhaps a deliberate tactical decision in order to blunt the impact of the impeachment - not to make use of that opportunity. If the Wagners had made their objections known in the trial court, Dr. Kobrine and Georgetown might well have been able to meet them. For example, it would have been easy to rectify the failure to ascertain the nature of Dr. Austin's allegedly "unethical practices" in testifying had that issue been raised while Dr. Austin was still available for examination.
Accordingly, we reject the Wagners' challenges to the impeachment of Dr. Austin. As the issue was presented and argued to the trial court, however, we cannot find that the court exercise
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