DocketNumber: A93A0888
Judges: Birdsong, Pope
Filed Date: 9/22/1993
Status: Precedential
Modified Date: 10/19/2024
concurring specially.
The officer did not simply testify “as to what actions he took in
Consequently, I must address the question left open by the majority in Division 1 (a): Was this issue properly preserved for appellate review? When defendant began questioning the officer about the portion of the incident report titled “Contributing Factors,” plaintiff objected generally to any question asking for an opinion going to any ultimate issue in the case. This general objection was sustained. Defense counsel then asked the officer what he marked in the “Contributing Factors” section of the report, and plaintiff again objected. The witness responded before the court ruled on this objection, however, and plaintiff did not pursue his objection further. He did not move to strike the officer’s testimony and did not move for mistrial. Nor did he ask for curative instructions, even though this was the type of error which could probably have been cured by a proper jury instruction.
Plaintiff attempts to characterize his initial objection as a motion in limine, as no further action is required to preserve the issue for appellate review when evidence barred by a previously granted motion in limine is offered at trial. See Reno v. Reno, 249 Ga. 855 (295 SE2d 94) (1982). However, plaintiff’s general objection was not a motion in limine — not because it was made during rather than before the trial, see Scott v. Chapman, 203 Ga. App. 58 (1) (416 SE2d 111) (1992), but because it was made in the presence of the jury. “ ‘ “The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury. ... It is the prejudicial effect of the questions
Although two judges specially concurred in Fee with respect to the writer’s harmless error analysis, all judges on the panel agreed that it was error to admit the officer’s testimony. See Fee, 197 Ga. App. at 484-485.