State v. Larocque , 268 Ga. 352 ( 1997 )

489 S.E.2d 806 (1997) 268 Ga. 352

STATE
v.
LAROCQUE

No. S97G0631.

Supreme Court of Georgia.

September 15, 1997.

Lydia J. Sartain, District Attorney, Lee Darragh, Asst. Dist. Atty., Gainesville, for the State.

Walt M. Britt, Chandler & Britt, Gregory D. Jay, Buford, for Jerry Lee Larocque.

THOMPSON, Justice.

In this case of first impression, we are called upon to clarify the nature of a continuing objection. While Georgia courts have long recognized the use of continuing objections, see, e.g., Jackson v. State, 256 Ga. 536, 350 S.E.2d 428 (1986); Moore v. State, 254 Ga. 674, 333 S.E.2d 605 (1985); Sanders v. State, 246 Ga. 42, 268 S.E.2d 628 (1980); Edgeworth v. Edgeworth, 239 Ga. 811, 239 S.E.2d 16 (1977); Campbell v. State, 237 Ga. 76, 226 S.E.2d 601 (1976), we have not specifically explained how a continuing objection is to be put on the record and what a continuing objection does. We take this opportunity to address these issues.

Jerry Lee Larocque was convicted of rape, false imprisonment, sexual battery, and battery. During the jury trial, the State crossexamined Larocque and asked him whether he had violated bond conditions by being at a convenience store within a mile of the victim's home. Larocque objected on relevance grounds. A bench conference followed, and the court asked the district attorney to explain the relevance of the convenience store questioning. The district attorney theorized that Larocque was attempting to intimidate the victim by making himself visible to her just prior to trial. Defense counsel then asked the trial court if the State were required to have given similar transactions notice. The trial court responded by saying, "I think intimidation, evidence of intimidation of a witness is relevant. I don't think it would require notice but I will note your objection and overrule it." Defense counsel's simple response was, "Okay."

As cross-examination continued, Larocque affirmatively denied having visited the convenience store. Larocque was then asked other questions concerning intimidation; he did not renew his objection to those questions. Furthermore, he never objected to subsequent testimony of several witnesses—one of whom flatly contradicted Larocque's statement that he had not visited the convenience store—who placed him near the victim's residence and workplace, and who saw Larocque drive slowly past the victim's workplace.

In reversing Larocque's conviction, a majority of the Court of Appeals found that Larocque's single objection to the convenience store question had preserved for review the entire line of intimidation evidence. Larocque v. State, 224 Ga.App. 92, n. 1, 479 S.E.2d 450 (1996). We granted certiorari to consider this question: "When can a single objection constitute a ``continuing' objection to the introduction of evidence?"

This State has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error. Sharpe v. Department of Transp., 267 Ga. 267, 267(1), 476 S.E.2d 722 (1996). Of course, even if counsel timely objects to certain testimony, its admission is not error where substantially the same evidence is subsequently admitted without objection. Clarke v. State, 221 Ga. 206, 144 S.E.2d 90 (1965); Massey v. State, 220 Ga. 883(4), 142 S.E.2d 832 (1965). See also Steverson v. Hospital Authority of Ware County, 129 Ga. App. 510, 514(2), 199 S.E.2d 881 (1973). However, error can be enumerated upon subsequently introduced testimony if a continuing objection was interposed in the first instance.

Continuing objections eliminate the need to repeat an objection where the trial court's ruling on the first objection clearly covers subsequent proceedings and the court has granted a party the right to have a continuing objection. 4 CJS Appeal and Error § 218 (1993). If the court does not specifically grant a right to a continuing objection, it is counsel's duty to object to testimony as it is offered. See Yankunos v. Hinds Catering Co., 130 Pa.Super. 187, 196 A. 520, 521 (1938). Larocque's only specific objection was a relevancy objection to the convenience store testimony. He did not specifically request, nor was he specifically granted, a continuing objection to all subsequent intimidation testimony.

Larocque asserts his objection was continuing inasmuch as the trial court declared the intimidation evidence relevant. We do not, however, construe the trial court's response as granting a continuing objection. The trial court did nothing more than rule on Larocque's objection and we will not assume that it granted a continuing objection where none was specifically requested. Accordingly, Larocque's relevancy objection to the convenience store testimony was not a continuing objection and did not preserve for review the entire line of intimidation testimony.

Unless the record clearly shows that an objection is specifically requested and granted as continuing, an appellate court can only speculate whether an objection covers subsequently admitted evidence. Accordingly, we hold that a single objection constitutes a continuing objection only when counsel specifically requests a continuing objection and the trial court specifically grants a continuing objection, or when the trial court on its own initiative clearly designates an objection as continuing. Because the record does not reflect that these requirements were met, we reverse the judgment of the Court of Appeals.

Judgment reversed.

All the Justices concur.