Strickland v. Stubbs
| Decision Date | 14 July 1995 |
| Docket Number | No. A95A0489,A95A0489 |
| Citation | 218 Ga.App. 279,459 S.E.2d 473 |
| Parties | STRICKLAND v. STUBBS. |
| Court | Georgia Court of Appeals |
Michael S. Meyer Von Bremen, Cannon, Meyer Von Bremen and Meier, Albany, for appellant.
B.T. Edmonds, Jr., Albany, for appellee.
Larry Strickland's pickup truck collided in an intersection with a car in which Katrina Stubbs was a passenger. Stubbs sued Strickland for her injuries, and at trial both parties presented evidence showing that the accident occurred as a result of the other party running a red light. The jury returned a verdict in favor of Stubbs. The trial court rendered a judgment on the verdict and denied Strickland's motion for a new trial. On appeal, Strickland asserts as error the court's failure to grant his motion in limine, the court's failure to take proper action upon sustaining two of his objections, and the court's limiting of his examination of the investigating police officer. Because we believe the court did not err as asserted, we affirm.
1. Strickland filed a motion in limine requesting that during voir dire, the court not qualify any of the prospective jurors as to their relationship with either parties' insurance company. Although Strickland acknowledges that existing precedent required the court to deny his motion, he contends on appeal that such precedent should be overruled. While we accept as true many of the arguments raised by Strickland in his brief and the concerns raised by Judge Beasley, now Chief Judge, in her concurring opinion in Franklin v. Tackett, 209 Ga.App. 448, 433 S.E.2d 710 (1993), we are bound by the well-settled precedent that Gonzalez v. Wells, 213 Ga.App. 494, 495(1), 445 S.E.2d 332 (1994).
2. Strickland asserts that the trial court erred when it failed to advise the jury of a ruling it made at an unrecorded bench conference during closing arguments. The record shows that during closing arguments Stubbs' attorney began to make the following statement: "If they can hire somebody at $100 an hour and pay them thousands and thousands of dollars." In midsentence, Strickland's attorney requested a bench conference. After the unrecorded conference, Stubbs' attorney continued with his closing argument without comment by the court or objection by Strickland. Later in the proceedings, after the jury retired for deliberations, the trial judge raised the matter of Strickland's objection on the record.
Although the wording of the objection is unclear, Strickland stated that he thought Stubbs' argument "was drifting, and [that] it was appropriate to go forth and ask for some restrictions on commenting on financial ability...." The trial judge agreed, finding "that the argument was headed in an inappropriate direction," and accordingly limited Stubbs' argument without cautioning him in front of the jury. There is nothing in the record indicating that Strickland was dissatisfied with the judge's curative action and Garner v. Victory Express, 264 Ga. 171, 173(2), 442 S.E.2d 455 (1994). Accordingly, we find no error.
3. At another point during Stubbs' closing argument, Strickland objected to Stubbs' attorney mentioning the facts of a case that was not in evidence. Strickland asserts that the trial court erred by not specifically sustaining the objection and by failing to take further curative action. The record shows that after Strickland made the objection, the trial judge stated to Stubbs' attorney, Stubbs' attorney then stated and continued with his closing argument without further objection by Strickland. At no time during the colloquy between the court and counsel did Strickland's attorney request that the court take any curative action.
We note initially that because the trial judge agreed with Strickland that Stubbs' argument was improper, it would be exalting form over substance for us to conclude that the trial court did not sustain Strickland's objection. Furthermore, since Strickland did not request any further curative action, the trial court was not required to take any. This issue is also controlled by Garner, supra. In Garner, the Court stated that "[i]f the trial court does sustain [the] objection, counsel may not then urge on appeal that the trial court erred in failing to undertake any additional greater 'available action' which was not requested." Id. And, as we held in Division 2, Id. Accordingly, we find not error, but the effigy of error.
4. Strickland contends the trial court erred in prohibiting him from eliciting testimony from the investigating officer that the driver of Stubbs' vehicle was issued a traffic citation. Strickland concedes that such testimony is usually not admissible, but argues Stubbs opened the door by asking the officer similar questions during cross-examination. Because we disagree that Stubbs opened the door for such testimony, we find no error. In a case like this, a party may ask the investigating officer what he observed at the scene of the accident and what he talked to witnesses about, but he may not inquire as to the officer's ultimate opinion concerning fault, whether a citation was issued or the final disposition of the citation. Emory v. Dobson, 206 Ga.App. 482, 426 S.E.2d 50 (1992).
The record shows that while cross-examining the officer, Stubbs questioned him concerning statements made by a witness as to who ran the red light. At no time during cross-examination did the officer state his opinion as to which vehicle ran the red light, who caused the accident or who was issued a traffic citation. Accordingly, Strickland has not shown that Stubbs' examination went beyond the restrictions expressed in Emory. Moreover, at no time did Strickland object to any of the...
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