Sharpe v. Department of Transp., S97G1399.

CourtSupreme Court of Georgia
Citation270 Ga. 101,505 S.E.2d 473
Docket NumberNo. S97G1399.,S97G1399.
PartiesSHARPE et al. v. DEPARTMENT OF TRANSPORTATION.
Decision Date05 October 1998

OPINION TEXT STARTS HERE

Tom W. Daniel, Daniel, Lawson, Tuggle & Jerles, Perry, for R.G. Sharpe et al.

John A. Draughon, Tilman Eugene Self, III, Sell & Melton, Macon, for Department of Transportation.

HUNSTEIN, Justice.

During the trial of this condemnation action, the jury heard testimony by two experts for the condemnees, Gerhardt and Limb, regarding the value of the property taken and the damage to the remaining property. In response to a question posed by the jury during deliberations, the trial court had a portion of Gerhardt's testimony replayed for the jury. In response to questions posed by the jury regarding Limb's testimony, the trial court wrote the monetary values to which Limb had testified on the paper with the questions submitted by the jury. The Court of Appeals held that although the trial court had correctly responded to the jury's questions about Gerhardt, Dept. of Transp. v. Sharpe, 226 Ga.App. 354(4), 486 S.E.2d 619 (1997), it reversed the judgment on the basis that the trial court had violated the "continuing witness" rule in its written response to the jury's questions about Limb. We granted certiorari to consider the propriety of the Court of Appeals' continuing witness ruling and also whether DOT had properly preserved the matter on appeal. Because we find that DOT failed to object properly to the trial court's method of responding to the jury's questions regarding Limb's testimony, we do not reach the continuing witness issue. The record reveals that after the jury's questions about Limb's testimony were answered, the trial court had DOT state its objection on the record. Counsel stated that any response, other than to tell the jurors to use their collective memories, was error because it enhanced the witness' credibility and gave undue weight to his testimony. Although the rule against sending a writing that substitutes for testimony out with the jury during deliberations is based on the premise that it places undue emphasis on the testimony, see Tibbs v. Tibbs, 257 Ga. 370, 359 S.E.2d 674 (1987); Green, Georgia Law of Evidence (4th Ed.), p. 177, § 87.1, counsel did not state any specific objection to the method used by the trial court to respond to the jury's questions. After counsel finished, the trial court then paraphrased DOT's objection with the statement, "your objection is to giving them the numbers, period, not the mode in which they were given." Although DOT's counsel answered, "no," the record reveals that counsel then stated, "we objected to answering the question either way, regardless of how it was answered. Whether the testimony would have been read by the Court Reporter ... or ... by actually writing in the answer to the question.... So what I'm saying is, regardless, the question should have been answered: You should use your collective memories." When the trial judge explained that he was "asking to make sure" that DOT was not making one objection now only to "piggyback" a subsequent objection "that, okay, if we don't win there, we object to you giving that total as opposed to reading the testimony back," counsel responded, "No, it's not, but we didn't agree to answer in any fashion."

The record thus reveals that when the trial court specifically inquired whether DOT objected to the trial court responding to the questions in writing rather than having the testimony replayed to the jury, DOT would not state that the method was objectionable in and of itself but instead limited its objection solely to the trial court's giving of any response of any nature to the questions. The record is clear that the trial court was aware of potential problems in giving a written response to the jury's questions and questioned counsel directly about that specific matter, but received only objections directed to the more general issue whether any response was proper.

It is the rule in Georgia that

[o]bjections should be made with sufficient specificity for the trial court to identify the precise basis. It is not important in what format the allegation is cast so long as it is clear to the court the specific error alleged that he may have the opportunity to correct them. [Cit.]

Jackson v. Meadows, 157 Ga.App. 569, 575(7), 278 S.E.2d 8 (1981). Further, "objections to irregularities must ordinarily be made at a time when they may be remedied, or they are waived. [Cit.]" State v. Williamson, 247 Ga. 685, 686, 279 S.E.2d 203 (1981). See also Dobbs v. Titan Properties, 178 Ga.App. 389(4), 343 S.E.2d 419 (1986). "On appeal only issues properly raised before the trial court will be considered." Dept. of Transp. v. Hillside Motors, 192 Ga.App. 637, 638(1), 385 S.E.2d 746 (1989).

It is clear that the issue whether it is proper to respond to a jury's question is separate and distinct from the appropriateness of the form or method used to deliver that response. Just as a party's objection to the underlying admissibility of written evidence does not reach the issue of its going out with the jury, Miller Distrib. Co. v. Rollins, 163 Ga.App. 635, 636(1), 295 S.E.2d 187 (1982), a party's objection to the decision to respond to a jury's question does not reach the issue of the form of that response. In this case, although DOT objected to any reiteration of Limb's testimony going out with the jury, its objection did not reach the specific issue of the method chosen by the trial court to submit the testimony to the jury. See Peters v. Davis, 214 Ga.App. 885, 889, 449 S.E.2d 624 (1994) ("to preserve an objection upon a specific point, the objection must be entered timely on the record upon that specific ground"). DOT objected to any information being provided in response to the jury's question (other than that the jurors must rely upon their collective memories) but did not object to the fact that the response itself was written.1 Indeed, counsel for DOT failed on both occasions when the trial court requested a clear statement regarding DOT's position on the method of response, to articulate clearly and distinctly that the method chosen was objectionable, thereby aiding in the alleged error. "[A] party cannot complain of error that [its] own legal strategy, trial procedure, or conduct aided in causing. [Cit.]" Delaney v. Lakeside Villa, Ltd., 210 Ga.App. 430(2), 440 S.E.2d 668 (1993).

Because DOT's objection was insufficient to notify the trial court that DOT did not agree with the method used to respond to the questions and thus DOT deprived the trial court of the opportunity to correct the error, we find that DOT has waived any objection on appeal.2 Accordingly, the merits of the issue were not properly before the Court of Appeals. We therefore need not reach the remaining question whether that court properly applied the "continuing witness" rule in this case.

Judgment reversed.

All the Justices concur except...

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  • Doherty v. Brown
    • United States
    • United States Court of Appeals (Georgia)
    • November 18, 2016
    ...the record." (Emphasis supplied.) Sharpe v. Dept. of Transp. , 267 Ga. 267 (1), 476 S.E.2d 722 (1996), rev'd on other grounds, 270 Ga. 101, 505 S.E.2d 473 (1998).Case No. A160764 6. Brown contends that the trial court erred in excluding evidence of Doherty's "patient safety issues" that wer......
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    • Supreme Court of Georgia
    • November 26, 2002
    ...6. Georgia Dept. of Natural Resources v. Coweta County, 261 Ga. 484, 405 S.E.2d 470 (1991). 7. See, e.g., Sharpe v. Department of Transp., 270 Ga. 101, 103, 505 S.E.2d 473 (1998); Standard Guar. Ins. Co. v. Bundrage, 264 Ga. 632, 633, 452 S.E.2d 474 (1994); Hammond v. Paul, 249 Ga. 241, 242......
  • Bully v. State
    • United States
    • United States Court of Appeals (Georgia)
    • October 28, 2020
    ...error alleged that the court may have the opportunity to correct them." (Citations and punctuation omitted.) Sharpe v. Dept. of Transp. , 270 Ga. 101, 102, 505 S.E.2d 473 (1998) ; see also Whatley v. State , 270 Ga. 296, 302 (14), 509 S.E.2d 45 (1998) (failure to object to shackles as a sec......
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    • United States Court of Appeals (Georgia)
    • October 28, 2020
    ...error alleged that the court may have the opportunity to correct them." (Citations and punctuation omitted.) Sharpe v. Dept. of Transp. , 270 Ga. 101, 102, 505 S.E.2d 473 (1998) ; see also Whatley v. State , 270 Ga. 296, 302 (14), 509 S.E.2d 45 (1998) (failure to object to shackles as a sec......
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2 books & journal articles
  • A Better Orientation for Jury Instructions - Charles M. Cork, Iii
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 54-1, September 2002
    • Invalid date
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    • Mercer University School of Law Mercer Law Reviews No. 52-1, September 2000
    • Invalid date
    ...Mercer University (J.D., cum laude, 1981). Member, State Bar of Georgia. 1. 267 Ga. 267, 476 S.E.2d 722 (1996), rev'd on other grounds, 270 Ga. 101, 505 S.E.2d 473 (1998). 2. Id. at 267, 476 S.E.2d at 723. 3. 239 Ga. App. 322, 521 S.E.2d 234 (1999). 263. 4. Id. at 323, 521 S.E.2d at 235. 5.......

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