The Objection Exception Is Overruled! the Georgia Supreme Court Makes a Course Correction by Reviving the Contemporaneous Objection Rule

• Publication year: 2022

The Objection Exception is Overruled! The Georgia Supreme Court Makes a Course Correction by Reviving the Contemporaneous Objection Rule

Ryan Read

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The Objection Exception is Overruled! The Georgia Supreme Court Makes a Course Correction by Reviving the Contemporaneous Objection Rule

Ryan Read^*

I. Introduction

What comes to mind when you think of evidence being presented at jury trials? Typically, both sides prevent evidence to the jury, and both sides fight hard to make sure no prejudicial evidence is allowed in that would bias the jury against their client. Both sides also work hard to prepare persuasive openings and closings to further affect the jury's perception of their client, the opposition, and the evidence that has been presented. So, when an attorney on one side makes prejudicial statements about the opposing counsel's client, one would naturally expect an objection to be made, right? Well, in Georgia, you would be wrong.¹ Until Williams v. Harvey,² trial lawyers were essentially allowed to ignore critical objections. Whenever prejudicial statements against their client were made, even ones that violated already granted motions in limine, counsel could sit back, not object, and later get the case reversed on appeal.³ It was that easy. Even if a trial lawyer lost,

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the attorney still had a chance of getting the case overturned, essentially creating a "win-win" scenario. Fortunately for Johnny Williams, the Georgia Supreme Court decided that trial lawyers would no longer be allowed to sit on their hands at trial and must contemporaneously object to prejudicial statements when the statements are made instead of raising the cost of the litigation for an unnecessary appeal.⁴

II. Factual Background

Johnny Williams (Williams) was a sixty-seven-year-old who enjoyed physical activity, including yard work; singing in his church choir; and being around his friends and family.⁵ On April 11, 2013, Williams was driving a tractor for his employer when Rubin Harvey (Harvey), the Defendant, driving a dump truck for Oxford Construction Company (Oxford), crashed into him. Williams was thrown from his tractor into a ditch off the highway. Due to this accident, Williams suffered critical injuries, including traumatic brain injuries, multiple bone fractures, and seizures. After spending six weeks in the hospital and five weeks in a rehabilitation center, Williams was discharged to his home, where he needed twenty-four-hour supervision from nursing assistants to monitor his daily activities. As a result of his injuries, Williams suffered daily. He developed dementia, had trouble walking, became agitated and confused, and was forced to take medication each day to cope with these hardships.⁶

Williams's family later filed suit against both Harvey and Oxford for negligence in causing Williams's injuries.⁷ At trial, both defendants conceded that Harvey was negligent in causing Williams's injuries, and the only issue was how Williams's damages would be apportioned between them. While at trial, two life care plan options were formulated for Williams and presented as remedies for his future medical costs. The first option, the home care option, provided Williams stay at his home, while the second option, the residential memory care unit or nursing home option, provided Williams move into a nursing home. An economics expert who testified at trial calculated the total special damages for the home care option to be $3,382,383.15. Whereas the cost for the residential memory care unit option would be $2,008,790.15.

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After trial, the jury returned a verdict of $18,000,000 in favor of Williams.⁸ Harvey and Oxford then filed a motion for new trial on the grounds that, during his closing, Williams's counsel violated the trial court's pretrial motion in limine ruling against arguments that would "overly inflame the emotions of the jury."⁹ Upon consideration of the motion, the trial court held that there was no violation of the motions in limine against inflammatory arguments.¹⁰

Initially, the trial court reserved ruling on the defendants' motion in limine as it pertained to potential testimony or evidence, but held "any statements, arguments, or evidence offered predominantly to overly inflame the emotions of the jury or to elicit excessive or undue sympathy, hostility, or prejudice for or against either party is prohibited."¹¹ Counsel for Oxford and Harvey contended this ruling was violated when Williams's counsel, during his closing argument, stated to the jury, "I hope your verdict is not a double-down on sentencing him to a nursing home because if you sentence him to a nursing home, you're signing his death warrant."¹²

Oxford and Harvey then appealed the trial court's ruling to the Georgia Court of Appeals, arguing that the trial court erred in failing to prevent the opposing counsel's inflammatory remarks during the opposing counsel's closing argument.¹³ The court of appeals reversed the trial court's ruling, holding Williams's closing argument clearly violated the trial court's motion in limine ruling preventing inflammatory remarks when his counsel likened the nursing home plan to sentencing Williams to death.¹⁴ The court of appeals also held that the trial court's ruling on the motion in limine was sufficient, by itself, to preserve the issue for appeal even though there was no

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contemporaneous objection at the time of the violation.¹⁵ Williams then appealed to the Georgia Supreme Court who issued a writ of certiorari allowing for review of the court of appeals' decision.¹⁶ The supreme court reversed the appellate court's holding and determined Harvey and Oxford's counsel were required to contemporaneously object to Williams's attorney's inflammatory remarks as a violation of the motion in limine.¹⁷ The supreme court disagreed with the court of appeals and held that the pretrial motion in limine, by itself, was not sufficient to preserve the violation for appeal because a contemporaneous objection was needed.¹⁸ From this determination, the supreme court also held that, in civil cases, there is no need for appellate review of unpreserved claims of error during closing arguments.¹⁹ After reaching this conclusion, the supreme court then overruled its decision in Stotle v. Fagan²⁰ as well as other cases that followed it.²¹

III. Legal Background

A. The Contemporaneous Objection Rule

The "contemporaneous objection rule," is the "doctrine that a timely and proper objection to the admission of evidence must be made at trial to afford the trial court an opportunity to conduct a meaningful inquiry into possible prejudice before or promptly after verdict and to preserve the issue for appeal."²² The rule is a common law rule independently developed by the states and, thus, may differ depending upon jurisdiction, but most jurisdictions share similar rules.²³ The primary purpose of the rule is to allow the trial court the opportunity to take any necessary corrective action at the time the alleged error is made, and thus, reduce the possibility an appeal will result in a reversal.²⁴ This

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corrective action includes allowing the trial court to provide curative instructions to the jury, which may help negate any prejudice that occurred due to the violation.²⁵ Also, as noted by the Supreme Court of the United States in Wainright v. Sykes,²⁶ the rule prevents "sandbagging" lawyers from purposefully failing to object so they may raise the error on appeal and get the judgment reversed.²⁷ This sentiment is similarly echoed in the Georgia Supreme Court case, Weldon v. State,²⁸ where the supreme court held a party cannot ignore an injustice at trial and then appeal the injustice after failing to receive a favorable verdict.²⁹

Georgia's contemporaneous objection rule requires counsel to make a proper objection, on the record, to an alleged error at the earliest possible moment in order to preserve it on appeal.³⁰ The contemporaneous objection rule has been the foundation for trial practice and evidentiary issues in Georgia for over 150 years,³¹ as displayed by both Burtine v. State³² in 1855 and Goodtitle v. Roe³³ in 1856.

In Burtine, the Solicitor General examined one of the jurors to determine if the juror was competent, and the defendant's counsel permitted the questioning to continue without raising an objection.³⁴ On appeal to the supreme court, the defendant's counsel argued it was an error to question the juror. The court determined it was unnecessary to decide whether it was proper for the Solicitor General to question the juror because the question was permitted without any objection. The court held that, to preserve an error on appeal, an objection must be made at trial.³⁵

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The supreme court made a similar decree in Goodtitle, except it applied the rule to evidence instead of testimony or examinations.³⁶ In Goodtitle, an action for ejectment to recover land, deeds were brought in as evidence to show proof of ownership, and the defense objected to a specific deed brought in by the administrator of the land.³⁷ The court ultimately decided a court is not bound to exclude evidence, even inadmissible evidence, unless the evidence was objected to and grounds for the objection were stated. If a party fails to object to the evidence, then the party is considered to have waived its right to appeal, and the evidence may be properly heard by the jury.³⁸

Georgia's contemporaneous objection rule has remained relatively the same since both Burtine and Goodtitle, with the only changes being what the rule may apply to at trial.³⁹ For instance, in the 1996 case Miller v. State,⁴⁰ the defendant alleged the District Attorney improperly characterized facts not in evidence and made prejudicial statements during closing argument; however, the defendant failed to object at the time these statements were made.⁴¹ The supreme court held that the defendant's failure to object to the allegedly...