Joyner v. State

BERGER, J. A jury in the Circuit Court for Prince George’s County convicted Carlton Everette Joyner, appellant, of possession with intent to distribute marijuana and possession with intent to distribute cocaine. The trial court sentenced appellant on July 15, 2011, imposing concurrent sentences of four and five years respectively. Appellant filed a timely appeal and presents the following questions: 1. Did the trial court err in denying Appellant’s motion to suppress his statement to police? ⁵⁰³ 2.

Did the trial court fail to properly exercise discretion, or in the alternative abuse its discretion, in refusing to permit a defense witness to testify? 3. Did the trial court err in permitting Nicole Edwards to testify as an expert when the State failed to disclose her as such in discovery? 4. Did the trial court err in permitting the State to play an audiotape of alleged telephone calls from prison by Appellant in the absence of proper authentication? For the reasons set forth below, we shall affirm the judgments of conviction.

Background 1 Hearing on Motion to Suppress Appellant filed a pre-trial motion to suppress pursuant to Md. Rule 4-252. A hearing on this motion was conducted, at which Detective Kevin McConnell of the D.C. Metropolitan Police Department testified. 2 Detective McConnell testified that on November 4, 2010, members of a drug enforcement task force executed a search warrant at 825 Marcy Avenue in Oxon Hill, and recovered crack cocaine, marijuana and associated paraphernalia. 3 Appellant gave a statement while in police custody, and the appellant moved to suppress his statement. At the hearing on ⁵⁰⁴ the pre-trial motion to suppress, Detective McConnell’s testimony provided the context in which the statement was given: [DEFENSE COUNSEL]: It says here at 8:24 on November 4th, 8:24 in the morning, Mr. Joyner was advised of his rights. How did you ascertain that that was the time? [THE WITNESS]: We were in the process of transporting Mr. Joyner to the correctional facility and we were in an unmarked vehicle.

My partner, [an] ATF Special Agent ... was driving. Mr. Joyner and I were seated in the back seat. He was handcuffed. And en route, he started the conversation.

I stopped him as he began to speak, you know, thinking that he was going to give some information, and I wanted to do things properly. So I stopped him, advised him of his rights and noted the time on my Sprint telephone. So it was approximately 8:24 hours. [DEFENSE COUNSEL]: Now, there’s an arrest report here in which they report that you are the arresting officer? [THE WITNESS]: Yes, sir. [DEFENSE COUNSEL]: A Prince George’s County report. And they’re saying the time of the arrest was 8:26 in the morning. [THE WITNESS]: Okay.

Like I said, it was approximate. I wasn’t familiar with the P.G. County computer system that was operating, and I had one of the correctional officers ... that was assisting me. * * * THE COURT: I think we moved from the search warrant to the statement. And the issue is what time was the statement given. [THE WITNESS]: The statement was given in the car on the way to transporting. The arrest paperwork was filled out at the correctional facility some time later after 8:50 hours, because that’s what time that pretty much the conversation stopped in reference to me advising him of his rights and him making statements to me. ⁵⁰⁵ [DEFENSE COUNSEL]: Now, was there any attempt made to get a written waiver from Mr. Joyner? [THE WITNESS]: Like I said, he was handcuffed in a vehicle that was equipped to transport prisoners.

It was just a four door unmarked sedan. And while we were doing the arrest paperwork at the computer terminal, after we set down at the terminal, we had no more contact with Mr. Joyner. He was off being processed. [DEFENSE COUNSEL]: I see. So, basically, did anybody else witness these statements besides you? [THE WITNESS]: Myself and Special Agent [ ] with the ATF. [DEFENSE COUNSEL]: He is not available today, I take it? [THE WITNESS]: No, he isn’t, sir. [DEFENSE COUNSEL]: Now, you have various comments written down here, and some of them that could be termed as incriminating. [THE WITNESS]: Yes, sir.

On cross-examination by the prosecutor, Detective McConnell explained how appellant was advised: Just verbally. I stated to him basically stating the obvious, that he’s in handcuffs, being transported, he’s under arrest. He’s not free to go, and that he had a right to remain silent. Anything he said could be used against him in court.

He has a right to an attorney. If he wants to talk to us now and answer questions, he can do so. He can stop answering at any time. Just, you know, just verbally.

Also, that if he started answering questions and got to a question that he didn’t want to answer, we would just move on. Or we might not have any questions for him at all and he can just tell me what happened today and what brought him here. Detective McConnell testified that appellant had no questions about his rights, and that he had never asked to speak ⁵⁰⁶ with an attorney. Appellant responded affirmatively when the Detective McConnell asked whether he understood everything.

The detective also raised the possibility of cooperation: When I had finished up at approximately 8:50 hours, I told him at some later point in time, if he wanted to get with his attorney and do some work for us, his attorney will get with the State’s Attorney and maybe we could work something out. On re-direct examination by defense counsel, Detective McConnell emphasized that his recitation of the Miranda 4 rights “covered all the major points.” He was certain of this because he’s “read it several times. I know you don’t have to—it doesn’t have to be read verbatim, but you do have to cover all the major points in it. It doesn’t have to be done in any specific order.

You just have to cover all the bases.” After the detective’s testimony, defense counsel maintained that the appellant’s statements to the detectives should be suppressed. Defense counsel argued that: Regarding the statements of Mr. Joyner, Mr. Joyner was not asked to—was not asked at any point in time for any kind of written waiver, although that is the normal course definitely for the authorities in this area, in Prince George’s County. And anybody who would be acting on their behalf, which I’m taking this task force to be acting in their behalf. And that’s the standard that tells us that somebody has intelligently waived their rights.

Secondly, the fact is even Detective McConnell admits—I hope I got that right—admits that the statements themselves were not delivered in a classic form that had been approved by authorities but, instead, were given more or less in a more informal manner, perhaps sounding somewhat piecemeal and without any real assurance that they were all given or that Mr. Joyner would have known what exactly he was doing, nor that he would have received a ⁵⁰⁷ warning that would have made him realize that the things he was saying were being recorded. And I think the fact is the testimony did indicate at some point he talked about contact with President Obama, which indicated the lack of seriousness with which he was holding the conversation. For that reason, I submit that Mr. Joyner did not have an intelligent waiver of his rights, and we ask the Court to suppress the statements he made that the state now wish to use against him. Following argument from the prosecutor, defense counsel added: Your Honor, just that I think the procedural safeguard is really what we’re arguing herein that what Prince George’s County has found to be a proper procedural safeguard was not followed in this case.

And basically what we’re saying is that we have to take the word of a person and that proper procedures which would assure us that the protections were provided have not been followed in both cases. Both in the deliverance of any possible Miranda-style warning[.] The motions court denied appellant’s motions to suppress. The court explained its ruling as follows: As for the statements made in the back of the police car, while not exactly a blurt, in fact not a blurt, it may have started out that way. Eventually, the advisement to the defendant who apparently was not the first time he heard those words, certainly not on TV, understood clearly what he was saying.

And when the police detective began writing it down, he got a little apprehensive and stopped. Outside of that, I see no legal reason whatsoever to grant the motion to suppress at this point. Trial Testimony Shawn Arthur testified as an agent for the Bureau of Alcohol, Tobacco and Firearms (“BATF”). He was on duty on November 4, 2010 at about 6:00 a.m., participating in the execution of a search warrant at 825 Marcy Avenue, Apart ⁵⁰⁸ ment T-3, in Oxon Hill.

Agent Arthur recounted that, upon entering the apartment he encountered appellant and “took [him] into custody.” The agent then searched the hallway closet and the kitchen area, and recovered $600 in United States currency from the pocket of an Eddie Bauer winter coat. He also located a digital scale on the top right shelf of a kitchen cabinet. James Harris testified as an Agent with the D.C. Metropolitan Police Department. Agent Harris also participated in the execution of the search warrant at the apartment where the appellant was arrested.

Appellant was the only adult male in the apartment when Agent Harris entered, although there was a woman and children present. He located “multiple empty Ziploc bags” and discovered an additional Ziploc bag in a breadbox on the top of the refrigerator that contained what Agent Harris thought was a substance that smelled like marijuana. Officer Jaime Dega testified as a member of the D.C. Metropolitan Police Department. Officer Dega was also involved in the execution of the warrant at the Marcy Avenue.

He searched the master bedroom of the house and uncovered a loaded rifle magazine from a drawer in the dresser. Kevin McConnell testified as a member of the D.C. Metropolitan Police Department. 5 He participated in the execution of the search warrant on November 4, 2010 at 825 Marcy Avenue. The warrant had been issued for the search for and seizure of marijuana. He first saw appellant when he, along with a Ms. Walker, was coming out of the larger of two bedrooms in the rear of the apartment.

There was an infant in a crib in that bedroom, and two other children. Detective McConnell took the infant out of the crib, and returned to that bedroom, where he found a large paper shopping bag sitting on a small table. He testified that the “bag was open” and that it contained a “[g]reen weedish substance wrapped up in ⁵⁰⁹ smaller zips, and a white rock substance and even smaller Zips packaged up.” The small bags contained marijuana and what appeared to be a “white rock substance.” There was “money on the table” in the larger bedroom and “another Ziploc of green weed substance[.]” According to Detective McConnell, “[i]t was all surrounding the shopping bag with the green weed substance and the Ziplocs and the smaller things.” The police transported appellant to the police station. Detective McConnell rode with him in an unmarked car and advised appellant of his rights.

Appellant made some statements during this interval, and initially admitted that the drugs were his. Detective McConnell testified that when police questioned him in the house, appellant had given them a false name because he “had a probation warrant.” Appellant also admitted to Detective McConnell that he was “just selling it.” He also acknowledged that the jacket from which the $600 in currency had been recovered, as well as the money, belonged to him. Special Agent William Smith serves with the BATF, and assisted in the execution of the search warrant at the Marcy Road apartment on November 4. He seized what appeared to be marijuana and crack cocaine that was discovered in the apartment.

Baggies of marijuana and a brown paper bag that contained marijuana were recovered from a “master bedroom TV stand.” The State then called Nicole Edwards to the stand. Ms. Edwards is a senior forensic chemist with the Drug Enforcement Administration. Over objection, Ms. Edwards was accepted as an expert in forensic chemistry. Based on the analyses she performed, Ms. Edwards concluded that the contraband that had been recovered consisted of cocaine base and marijuana.

Officer Christopher Schultz, who was accepted as an expert in “identification, packaging, valuation, [and] distribution for crack cocaine and marijuana,” also testified. Having reviewed the evidence, he concluded that it “is indicative of possession ⁵¹⁰ with the intent to distribute both the marijuana and the crack cocaine.” We shall recite additional facts as appropriate. Discussion I. Appellant first questions the motions court’s denial of his motion to suppress the statement he made to Officer Kevin McConnell. He maintains that the motions court erred because the record does not establish that Officer McConnell advised him that he would be entitled to appointed counsel at no expense.

The State counters that appellant has failed to preserve this issue because it had not been raised below. We agree with the State and explain. In Carroll v. State, 202 Md.App. 487 , 32 A.3d 1090 (2011), aff'd on other grounds, 428 Md. 679 , 53 A.3d 1159 (2012), this Court ruled that the defendant in that case, Carroll, had waived his claim that the circuit court erred by refusing to suppress his post-arrest statements. Carroll’s attorney originally filed a pre-trial motion pursuant to Md. Rule 4-252(a), but then withdrew his challenge to the admission of the disputed statements.

We declined to review this issue because Carroll had waived it. Our explanation merits extensive quotation: Pursuant to Md. Rule 4-252(a), a claim regarding “[a]n unlawfully obtained admission, statement, or confession,” “shall be raised by motion” prior to trial, and if not so raised, it is waived, absent a showing of good cause. This Court has explained that a failure to raise a suppression issue below constitutes a waiver in several contexts: (1) if the defendant fails to comply with the time requirements for filing a motion under the rule; (2) if the defendant files a notice but fails to pursue it; and (3) if there is a hearing on the motion, but the defendant fails to present any grounds to support the motion. Jackson v. State, 52 Md.App. 327, 331-32 , 449 A.2d 438 , cert. denied, 294 Md. 652 (1982).

Accord Perry v. State, 344 Md. 204, 227 , 686 A.2d 274 (1996) ⁵¹¹ (defendant waived suppression issue by failing to raise it prior to trial), cert. denied, 520 U.S. 1146 , 117 S.Ct. 1318 , 137 L.Ed.2d 480 (1997). Neither party cites a case addressing whether plain error review applies in the context of the failure to raise a suppression issue subject to the rule. In Kohr v. State, 40 Md.App. 92, 98 , 388 A.2d 1242 , cert. denied, 283 Md. 735 (1978), this Court stated that the Court of Appeals decided, “as a matter of judicial policy,” to make Rule 736, the predecessor to Rule 4-252, parallel to Rule 12 of the Federal Rules of Criminal Procedure (“Fed. R.Crim. P.”).

We stated: “Both rules are identical in that they require that motions to suppress be filed pre-trial and both consider a failure to raise timely objections to the admissibility of unlawfully seized evidence to constitute a waiver.” Id. Because the Maryland rule is parallel to the federal rule, we look to federal decisions addressing the effect of a failure to raise a suppression issue pursuant to Fed.R.CrimP. 12. Several courts have analyzed in detail whether such a failure constitutes: (1) a forfeiture subject to plain error review; or (2) a waiver that cannot be reviewed absent good cause. Carroll, 202 Md.App. at 509-11 , 32 A.3d 1090 (footnotes omitted).

It is noteworthy that while Carroll had withdrawn his challenge to the admission of the statements in that case, we also concluded in that case that the failure to advance a specific argument before the circuit court would likewise foreclose appellate review. We surveyed several federal cases that interpreted the federal analogue to Rule 4-252(a), Fed. R.CrimP. 12, and concluded that “if a defendant fails to raise a ground seeking suppression of evidence, which is required to be raised pre-trial by Rule 4-252, the defendant has waived his or her right to appellate review of that issue.” Carroll, 202 Md.App. at 513 , 32 A.3d 1090 . We thus made no distinction between waiver or forfeiture of an issue. ⁵¹² It is long-established that “[f]orfeiture is the failure to make a timely assertion of a right, whereas waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” Savoy v. State, 420 Md. 232, 240 , 22 A.3d 845 (2011) (quoting State v. Rich, 415 Md. 567, 580 , 3 A.3d 1210 (2010) (in turn quoting United States v. Olano, 507 U.S. 725, 733 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993))). In the usual case, a forfeited objection could still be the subject of plain error review, while an issue that had been waived results in procedural default in every instance.

Unlike the situation in Carroll , where the defense withdrew a suppression challenge, appellant in this case failed to assert a specific argument that he now advances on appeal. 6 The issue of forfeiture is squarely before this Court, and thus a review of selected authorities that are relevant to this issue is useful. In United States v. Rose, 538 F.3d 175 (3d Cir.2008), Judge Thomas Ambro introduced the Third Circuit’s discussion of this aspect of procedural default: This case raises a procedural issue that has nagged our Court for decades and for which we have unwittingly given ⁵¹³ conflicting answers: whether a criminal defendant who failed to raise a reason to suppress evidence before the District Court may raise the reason on appeal. We conclude that he cannot absent good cause: such a suppression issue is waived under Federal Rule of Criminal Procedure 12, which trumps Rule 52(b)’s plain error standard in the context of motions to suppress. For this reason and others, we affirm the conviction of Larken Rose for five counts of failure to file personal income tax returns.

United States v. Rose, 588 F.3d 175, 176 (3d Cir.2008). Rose had been convicted of failure to file personal income tax returns. Acting pro se, Rose moved to suppress physical evidence that had been seized during a search of his home, and offered four grounds for his challenge before the district court. Represented by counsel on appeal, Rose advanced different contentions.

These theories differed from those urged in the district court, and, as noted by the Third Circuit, “[a]ll of the suppression issues that Rose raises on appeal are new[.]” Rose, 538 F.3d at 177 . The court of appeals explained why it would not entertain Rose’s new appellate assertions: In our Court, suppression issues raised for the first time on appeal are waived absent good cause under Rule of Criminal Procedure 12. Although a few of our opinions have inadvertently applied plain error review under Rule of Criminal Procedure 52(b), for the reasons stated below, we do not find these cases to be controlling. Further, the Criminal Rules’ text, their history, and pertinent policy considerations direct a waiver approach.

Thus, a suppression issue not raised in the District Court is waived absent good cause, and we accordingly affirm. Rose, 538 F.3d at 177 (citations omitted). The court considered Fed.R.CrimP. 12(b)(3), which, like Md. Rule 4-252(a), lists certain motions that must be made before trial, and Fed.R.CrimP. 12(e), which governs waiver as a consequence for a party’s failure to advance a timely Rule 12(b)(3) mandatory motion. The Third Circuit addressed the tension be ⁵¹⁴ tween the Rule 12(e) waiver provision and the federal plain error rule, Fed.R.Crim.P. 52(b), holding that the specific waiver provision of Rule 12 controls a party’s failure to file a mandatory Rule 12(b)(3) motion or advance an argument below that is congruent with its appellate claim: Though each of Rule 52(b) and Rule 12 appears applicable when read alone, when considered together we believe Rule 12’s waiver provision must prevail.

The latter is much more specific than is Rule 52(b); while Rule 52(b) states generally that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention,” Rule 12(e) singles out motions to suppress, stating that a “party waives any [suppression] defense, objection, or request not raised by the [pretrial] deadline the court sets.” (Emphasis added.) In this context, “we apply the well-settled maxim that specific statutory provisions prevail over more general provisions.” Chavarria v. Gonzalez, 446 F.3d 508, 517 (3d Cir.2006) (internal quotation marks omitted). Thus we avoid “applying a general provision when doing so would undermine limitations created by a more specific provision.” Varity Corp. v. Howe, 516 U.S. 489, 511 , 116 S.Ct. 1065 , 134 L.Ed.2d 130 (1996). Rose counters that Rule 12’s use of the term “waives” is arguably at odds with the Supreme Court’s definition of “waiver” in Olano—the “intentional relinquishment or abandonment of a right.” Olano, 507 U.S. at 733 , 113 S.Ct. 1770 . Per this argument, failure to comply with Rule 12 could be seen as more akin to a forfeiture—an inadvertent “failure to make the timely assertion of a right”—that would result in plain error review rather than a waiver.

Id. Rule 12’s history, however, indicates that its text means what it says. As previously noted, in 1974 the Rules were changed to require—with an explicit threat of waiver—that motions to suppress be raised prior to trial in accordance with the district court’s desired timetable. In 2002, well after Olano , the waiver provision of section (f) was moved to section (e) and its text was revised, but the Advisory Committee kept the term “waiver” in place.

See Fed.R.Crim.P. 12 advisory ⁵¹⁵ committee’s note to 2002 amendments. Had the drafters thought that term outdated in light of Olano or other precedent, they could have changed the term to “forfeiture,” but they did not. United States v. Rose, 538 F.3d at 182-83 . The court built on this rationale with the recognition that there exist prudential concerns for an application of a waiver analysis: Allowing a defendant to raise a suppression issue for the first time on appeal absent good cause carries substantial costs that are not outweighed by any attendant benefits.

If a defendant has not raised a suppression issue before the district court, the Government (under an assumption that its proffered evidence was admissible) may plausibly conclude during trial that it does not need to accumulate and introduce additional evidence to prevail. Moreover, on appeal the Government has lost its chance to introduce valuable evidence in opposition to the suppression motion. And we agree with the Chavez-Valencia Court [United States v. Chavez-Valencia, 116 F.3d 127 (5th Cir.), cert. denied, 522 U.S. 926 , 118 S.Ct. 325 , 139 L.Ed.2d 252 (1997)] that a choice of plain error review over a waiver approach would do little, if anything, to further the deterrent effect of the exclusionary rule. Id., 538 F.3d at 183 .

In United States v. Burke, 633 F.3d 984 (10th Cir.), cert. denied, — U.S. —, 131 S.Ct. 2130 , 179 L.Ed.2d 919 (2011), the Tenth Circuit held that the defendant waived suppression arguments that had not been presented before the district court. Writing for the federal intermediate appellate court, Judge Tymkovich pointed out that the Tenth Circuit has held, on the strength of the waiver provision set forth in Fed. R.CrimP. 12(e), that “[w]hen a motion to suppress evidence is raised for the first time on appeal,” it “must decline review.” Burke, 633 F.3d at 987 (citing United States v. Brooks, 438 F.3d 1231, 1240 (10th Cir.2006)). Yet application of the waiver provision was not limited to the failure to file a mandatory motion; a failure to raise a specific argument before the ⁵¹⁶ district court would also preclude appellate review. The Tenth Circuit added: We have also held “this waiver provision applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion.” United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir.1991); see United States v. Banks, 451 F.3d 721, 727 (10th Cir.2006) (explaining the general rule that if a party fails to raise a specific argument in a suppression hearing they waive that argument on appeal); see also United States v. Rose, 538 F.3d 175, 185 (3d Cir.2008) (“Under Federal Rule of Criminal Procedure 12, a federal criminal defendant is barred, absent good cause, from raising a reason to suppress evidence for the first time on appeal.

This conclusion finds support in the Criminal Rules’ text, their history, our Court’s case law, and the policy underlying Rule 12.”); United States v. Pope, 467 F.3d 912, 918-19 (5th Cir.2006) (‘We have also held that failure to raise specific issues or arguments in pre-trial suppression proceedings operates as a waiver of those issues or arguments for appeal.”). In United States v. Walker, 665 F.3d 212 (1st Cir.2011), the defendant asserted, for the first time on appeal, that the indictment was defective. The United States Court of Appeals for the First Circuit ruled that Walker’s challenge was barred. Judge Selya explained for the court: Under the Criminal Rules, a defendant must challenge a perceived defect in an indictment before the commencement of trial.

Fed.R.Crim.P. 12(b)(3)(B). A failure to mount such a challenge within the prescribed time frame constitutes a waiver. Fed.R.Crim.P. 12(e). This is not a judicial gloss; Rule 12(e) itself uses that precise terminology.

United States v. Walker, 665 F.3d at 227 . The First Circuit went on to explain that procedural default in this context differs from the usual waiver-forfeiture distinction, and reached a result that squares with our Court in Carroll : ⁵¹⁷ To be sure, this is not a typical “waiver.” Waiver normally involves the intentional relinquishment of a known right. See, e.g., United States v. Carrasco-de-Jesús, 589 F.3d 22, 26 (1st Cir.2009). “Forfeiture” is the term that is normally used to describe an unexplained failure to make a timely assertion of a right. See, e.g., United States v. Olano, 507 U.S. 725, 733 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993).

This distinction can be important. Waived objections cannot be reviewed on appeal (save for the rare case in which a reviewing court, as a matter solely of its discretion, forgives the waiver), whereas forfeited objections are reviewable for plain error. It is an open question in this circuit whether the words “waiver” and “waives,” as used in Rule 12(e), should be taken literally. Several other courts of appeals have pondered this question.

The majority view is that a party’s failure to raise Rule 12(b)(3) defenses prior to trial—such as a challenge to the form of an indictment—constitutes a waiver in the classic sense and, thus, precludes appellate review of the defaulted challenge. A few circuits, however, have treated such defaults as forfeitures and engaged in plain error review. We believe that Rule 12(e) says what it means and means what it says. Great weight must be given to the plain language of the rule, particularly since Congress amended it in 2002 (after the Supreme Court had made the distinction between waiver and forfeiture pellucid) and left the “waiver” terminology intact.

See Fed.R.Crim.P. 12 advisory committee’s notes; see also Olano, 507 U.S. at 733 , 113 S.Ct. 1770 (explaining waiver/forfeiture distinction). What is more, the matters that fall within the compass of Rule 12(b)(3) (and thus Rule 12(e)) are normally correctable before trial if seasonably brought to the attention of the district court and the government. It strikes us as manifestly unfair for a defendant to sit silently by, take his chances with the jury, and then be allowed to ambush the prosecution through a post-trial attack. Accordingly, we join the majority view and hold that a failure to challenge a defect in an indictment ⁵¹⁸ before trial, as required by Rule 12(b)(3), results in an unreviewable waiver of that challenge pursuant to Rule 12(e).

Because the appellant did not raise either duplicity or multiplicity challenges at any time prior to trial, he has waived those challenges. United States v. Walker, 665 F.3d at 227-28 (some citations and footnotes omitted). Finally, the First Circuit observed that a defendant may avoid procedural default if “good cause” can be shown. Both in that case, and in the case before us, neither Walker in that case nor appellant in the present case attempted to justify the failure to advance a necessary challenge or raise a specific argument before the trial court.

Indeed, in the case before us, appellant has not attempted to demonstrate “good cause” in a reply brief, even though alerted by the State’s response that procedural default was at issue. Judge Selya’s conclusion on this point