Singleton v. State, 6 Div. 984

CourtAlabama Court of Criminal Appeals
Citation553 So.2d 689
Docket Number6 Div. 984
PartiesGeorgette SINGLETON, alias v. STATE.
Decision Date25 August 1989

Page 689

553 So.2d 689
Georgette SINGLETON, alias
6 Div. 984.
Court of Criminal Appeals of Alabama.
Aug. 25, 1989.
Rehearing Denied Sept. 29, 1989.
Certiorari Denied Dec. 1, 1989
Alabama Supreme Court 89-43.

Erskine R. Mathis, Birmingham, for appellant.

Don Siegelman, Atty. Gen. and James B. Prude, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Georgette Singleton was indicted for trafficking in cocaine and possession of marijuana, in violation of § 20-2-80, Code of Alabama 1975. She was "found guilty as charged in the indictment" and was sentenced

Page 690

to 20 years in prison. She raises seven issues on appeal.

The appellant Singleton first contends that the trial court erred in denying her motion for mistrial after evidence concerning a prior search of her home was admitted into evidence. The record reveals that the first reference to the earlier visit by law enforcement officers to the appellant's home occurred during the direct examination of Officer Terry Ratigan as follows:

"Q Had you ever been there before [appellant's apartment]?

"A Yes.

"Q What date?

"A It was July, I believe. I don't know the exact date.

"Q Did you actually go inside the house in July?

"A Yes ma'am.

"Q So you were familiar with this location?

"A Yes." (R. 110)

The appellant failed to object to this testimony. The record also reveals that the appellant did object to several subsequent references made to the July incident.

"To be timely, an objection to admission of certain evidence must be made as soon as the ground for one objection becomes apparent. By allowing the prosecution to elicit the allegedly erroneous testimony without objection and subsequently entering no motion to exclude th[e] testimony, [the appellant] waived any alleged error committed by the trial court in overruling his objections." Leverett v. State, 462 So.2d 972, 979 (Ala.Cr.App.1984) (citations omitted). See also Wynn v. State, 423 So.2d 294 (Ala.Cr.App.1982). "[I]t is well-established that it is not error to allow facts to be shown over objection when they have already been proven without objection." Hunt v. State, 453 So.2d 1083, 1086-87 (Ala.Cr.App.1984). See also Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), cert. denied, 398 So.2d 322 (Ala.1981). The appellant should have raised her objection to this testimony when it was first presented. Therefore, she failed to preserve this issue for review.

The record reveals that, during the second time the July incident was raised, there was a reference to the execution of a search warrant. This also occurred during the direct examination of Officer Ratigan. The trial judge immediately instructed the jury to disregard the testimony concerning the execution of a search warrant and also explained that the testimony concerning the presence of the law enforcement officers at the appellant's residence in July was relevant to other issues in the case. We need not address the admissibility or inadmissibility of the reference to the search warrant because, even if such testimony was found to be inadmissible, the trial judge gave the jury prompt, curative instructions. When a trial court immediately instructs the jury to disregard any improper remarks, there is a prima facie presumption against error. Woods v. State, 460 So.2d 291 (Ala.Cr.App.1984); Hammins v. State, 439 So.2d 809 (Ala.Cr.App.1983). A mistrial is properly denied when the prejudicial qualities of a remark can be cured by the trial court. Woods, Mallory v. State, 437 So.2d 595 (Ala.Cr.App.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 722, 79 L.Ed.2d 184 (1984). The appellant's motion for mistrial was properly denied.

We also point out that the appellant is responsible for the fourth reference to the July 23, 1987, visit. The following occurred during the appellant's cross-examination of Officer Ratigan:

"Q You testified earlier, and I objected strenuously to it, but you did it anyway, that you had been over to that house in June or July, something like that?

"A July.

"Q And this particular search warrant you are talking about was in October?

"A Yes, sir." (R. 206)

Certainly, if anyone called the jury's attention to the alleged inadmissible evidence, it was the appellant.

Page 691


The appellant next contends that the trial court made two prejudicial statements in front of the jury that require a reversal of her conviction. The record reveals that the appellant failed to object to or move to exclude either statement. "Unless allegedly prejudicial remarks are objected to, they are not subject to review except where they are grossly improper. There must be either an objection, a motion to exclude, or a motion for the jury to disregard the statement before error is preserved." Lokos v. State, 434 So.2d 818, 823 (Ala.Cr.App.1982), aff'd, 434 So.2d 831 (Ala.1983). Even if this issue had been preserved for review, there is no indication in the record that the appellant was prejudiced in any way by the statements which she cites to this court. See Gurganus v. State, 520 So.2d 170 (Ala.Cr.App.1987).


The appellant contends that she was deprived of her constitutional right to testify in her own behalf because the trial court implied that she could be impeached with evidence concerning the July search if she took the stand. This argument has no merit. The following excerpt from the record contains the exchange between the court and defense counsel upon which the appellant's argument is based:

"MR. MATHIS: I would like to put on the record, just for the record's sake, that I am going to rest simply because of the fact that the Court's prior ruling indicated to me that if I were to put on a case wherein my client were to testify, this prior act that the Court changed its mind on earlier would come in.

"THE COURT: Well, it would depend on what your client would say.

"MR. MATHIS: Well, if my client got up there and denied knowledge of the cocaine in the trunk of that automobile, which she would have to do if she took the witness stand at all, then it is my understanding that that other would come in--

"THE COURT: Well, I haven't really defined the ruling--

"MR. MATHIS:--yes, sir. So, we are not putting on a defense for that purpose. It had been our intention for my client to do just exactly that, but if that other is going to come in in that regard, then we simply will not be in a position to--

"THE COURT: Well, I appreciate you trying to pin me to the wall on it, Erskine, but I don't know what my ruling would be until I hear her testimony.

"MR. MATHIS: Well, you have certainly indicated, Your Honor, that were she to deny knowledge of that cocaine in the trunk of that automobile--

"THE COURT: That the July search may be--

"MR. MATHIS:--yes, sir.

"THE COURT:--may, may.

"MR. MATHIS: Well, I was under the impression that it had already at one point been ruled that it would be admissible anyway. And out of the goodness of the Court's heart, because of the surprise factor that we just discussed in my regard--

"THE COURT: That is a fair statement--

"MR. MATHIS:--the Court did not allow it in. So, with that in mind, those are the very reasons why I will not be putting on a case, although I had planned to.

"THE COURT: Fair enough.

"MR. MATHIS: Thank you, sir." (R. 442-444)

The trial court clearly stated that the admissibility or inadmissibility of such evidence would be determined when the question actually arose. The appellant's argument is based solely on speculation and conjecture. Since there was no adverse ruling against the appellant, there is nothing for this court to review. Hill v. State, 409 So.2d 943 (Ala.Cr.App.1981).

Without a ruling, a request for a ruling or an objection to the trial court's failure to rule, there is nothing preserved for review. Moore v. State, 457 So.2d 981 (Ala.Cr.App.1984), cert. denied, 470 U.S. 1053, 105 S.Ct. 1757, 84 L.Ed.2d 820 (1985). Furthermore, even if the...

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5 cases
  • Fisher v. State, 1 Div. 948
    • United States
    • Alabama Court of Criminal Appeals
    • March 1, 1991
    ...based on the same reason as that for striking the black indicates that the reason was properly race-neutral. See Singleton v. State, 553 So.2d 689 The third black veniremember was struck, according to the prosecutor, because she had a son who was approximately the same age as the appellant.......
  • Dill v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 31, 1991
    ...We find that the State did not use its peremptory strikes in a racially discriminatory manner. See, e.g., Singleton v. State, 553 So.2d 689 (Ala.Crim.App.1989); Bedford; Mathews v. State, 534 So.2d 1129 The appellant next contends that his right to counsel was violated by statements made by......
  • Kelley v. State, CR-91-427
    • United States
    • Alabama Court of Criminal Appeals
    • May 15, 1992
    ...immediately instructs the jury to disregard any improper remarks, there is a prima facie presumption against error." Singleton v. State, 553 So.2d 689, 690 (Ala.Cr.App.1989); Bedford, After reviewing the state's comments during closing arguments and the circuit judge's response to each, we ......
  • Dyson v. State, CR-90-196
    • United States
    • Alabama Court of Criminal Appeals
    • July 26, 1991
    ...Moore v. State, 457 So.2d 981 (Ala.Cr.App.1984), cert. denied, 470 U.S. 1053, 105 S.Ct. 1757, 84 L.Ed.2d 820 (1985); Singleton v. State, 553 So.2d 689 (Ala.Cr.App.1989). As a result, this argument has not been preserved for our The appellant claims that the evidence was insufficient to sust......
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