Cooper v

State, 287 Ga. 861, 700 S.E.2d 593 (2010), overruled on other grounds, Smith v. State, 290 Ga. 768, 723 S.E.2d 915 (2012). Expert testimony. — Trial court erred in admitting, over objection, the testimony of the parents’ expert witness about the standard of care in the day-care industry regarding the handling of infants in a case when the infant of the parents died at a hospital after being found pale at the infant’s day-care center; the correct standard was that of the average parent, the jury did not need expert testimony to understand or apply that standard of care, and the expert’s testimony confused the jury. Accordingly, the child-day care center was granted a new trial because the error in admitting the expert testimony was not harmless. Applebrook Country Dayschool, 288 Page: 289 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-5-22 Date: 06/14/13 Time: 12:24:50 GA RV 13 RV 4(T4-6) - EP NEW TRIAL Inc. v. Thurman, 264 Ga. App. 591, 591 S.E.2d 406 (2003). Trial court did not abuse the court’s discretion in denying the defendant’s motion for mistrial after one of the state’s expert witnesses testified about a medical examination the expert made of the victim that was not reflected in the records the state produced before trial because the doctors who examined the victim shortly after the victim had been injured testified to finding cell death in portions of the victim’s brain, resulting in irreversible brain damage; the expert’s testimony that the later examination also indicated a permanent brain injury was cumulative of the other medical evidence. Eskew v. State, 309 Ga. App. 44, 709 S.E.2d 893 (2011). Testimony regarding codefendant’s statement. — Trial court did not err in denying the defendant’s motion for mistrial because the defendant did not show any harm resulting from the investigating police officers’ testimony regarding the codefendant’s statement, which referenced an ‘‘individual’’ with the codefendant on the night of the robbery who could be considered references to a person whom the jury could infer to be the defendant; the evidence against the defendant was overwhelming. Anderson v. State, 311 Ga. App. 732, 716 S.E.2d 813 (2011). Interview notes not produced. — Assuming that notes of an interview that was suppressed by the state were evidence favorable to the defendant, the defendant failed to show either that the notes were not available to the defendant through reasonable diligence, or that the course of the defendant’s trial would have been any different had the notes been produced. Thus, there was no error in the trial court’s denial of the defendant’s motion for a new trial based upon a Brady violation. Freeman v. State, 284 Ga. 830, 672 S.E.2d 644 (2009). Evidence of arrest on another charge admissible. — Defendant was not denied a fair trial when the jury was allowed to hear evidence of an unrelated arrest because the circumstances of the defendant’s arrest for obstruction of, and giving false information to, an officer were admissible as evidence of flight. Durham 5-5-22 v. State, 309 Ga. App. 444, 710 S.E.2d 644 (2011). Remedial charge sufficient to remedy error. — Trial court did not err in denying the defendant’s motion for mistrial because a remedial charge, which repeatedly admonished the jury that an accomplice’s guilty plea was not to be considered in any way with respect to the defendant’s guilt, was sufficient to remedy the error of the admission of the plea and render a mistrial unnecessary. Robinson v. State, 312 Ga. App. 110, 717 S.E.2d 694 (2011). Trial court did not abuse the court’s discretion in refusing to grant a mistrial after the state elicited hearsay testimony because the trial court took sufficient precautions to exclude the inadmissible evidence from the jury’s consideration as evidence. Sanders v. State, 290 Ga. 445, 721 S.E.2d 834 (2012). Harmful Brady violation. — Trial court erred in denying the defendant’s motion for new trial because the state committed a harmful Brady violation when the state failed to turn over to the defense a written statement that the victim gave to police; the victim’s impeachable omission was not known to the defense before or during trial, and the victim’s statement was material to the defense since had the statement been disclosed, the outcome of the case could have been different. Jackson v. State, 309 Ga. App. 796, 714 S.E.2d 584 (2011). Erroneous Exclusion of Evidence Necessary showing for exclusion of testimony to be considered ground for new trial. — For exclusion of oral testimony to be considered as ground for new trial, it must appear that pertinent question was asked, and that court ruled out answer and that a statement was made to court at time showing what answer would be; and that such testimony was material, and would have benefited complaining party. Ellison v. State, 21 Ga. App. 259, 94 S.E. 253 (1917). Rejecting evidence tending to sustain defense. — When rejected evidence relates to main transaction and tends to sustain defense set up by the defendant, rejection of such evidence requires grant 289 Page: 290 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Erroneous Exclusion of Evidence (Cont’d) of a new trial. Green v. State, 154 Ga. 117, 113 S.E. 536 (1922). Rejection of evidence partly admissible and partly inadmissible. — When evidence, some of which is admissible, and some of which is not admissible, is offered as a whole, a new trial will not be granted because of the evidence’s rejection. Arnold v. State, 131 Ga. 494, 62 S.E. 806 (1908). Erroneous exclusion when record contains similar evidence establishing same fact. — When certain evidence is excluded over objection, but record contains similar evidence establishing fact which it is sought to establish by evidence which has been excluded, such exclusion will not constitute reversible error, even if exclusion was erroneous. Louisville & N.R.R. v. McCamy, 72 Ga. App. 769, 35 S.E.2d 206 (1945). No bad faith in failing to turn over videotaped statements. — Defendant’s new trial motion under O.C.G.A. § 5-5-22 was properly denied, as the fact that the state failed to turn over two videotaped statements from defendant’s sons, arising from criminal charges due to a domestic dispute, was based on inadvertance rather than bad faith, there was unimpeached eyewitness testimony from other witnesses that was sufficient to support defendant’s convictions pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), and there was no showing that the defendant suffered the kind of prejudice that undermined confidence in the outcome of the trial; accordingly, defendant’s Brady rights were not violated and there was no violation of O.C.G.A. §§ 17-16-6 and 17-16-7. Ely v. State, 275 Ga. App. 708, 621 S.E.2d 811 (2005). Objection Admission of illegal evidence without objection. — It is not ground for new trial that illegal evidence was admitted when no objection was made to the introduction when offered, nor at any time anterior to rendition of the verdict. Licett v. State, 23 Ga. 57 (1857); Evans v. State, 33 Ga. 1 (1861). Date: 06/14/13 Time: 12:24:50 5-5-22 When counsel for defendant expressly consents to admission of evidence, the admission will not thereafter serve as ground for new trial. Williams v. State, 119 Ga. 425, 46 S.E. 626 (1904). When no objection is made to illegal evidence on trial of case the admission is not ground for a new trial. Weldon v. State, 78 Ga. App. 530, 51 S.E.2d 605 (1949). When evidence is illegally admitted, a new trial may be granted, yet the general rule is that a specific ground of objection must be made at the time the evidence is offered. Boggs v. Griffeth Bros. Tire Co., 125 Ga. App. 304, 187 S.E.2d 915 (1972). Failure to make objection to admission of illegal evidence will be treated as a waiver and will prevent court, on motion for new trial from inquiring as to competency of such evidence. Andrews v. State, 118 Ga. 1, 43 S.E. 852 (1903); Richardson v. State, 141 Ga. 782, 82 S.E. 134 (1914); Boggs v. Griffeth Bros. Tire Co., 125 Ga. App. 304, 187 S.E.2d 915 (1972). Defendant’s claim that defendant’s character was improperly placed into evidence when an officer testified that the officer found defendant’s prison identification card in defendant’s pocket was waived as defendant failed to make a further objection or renew defendant’s motion for a mistrial after a curative instruction was given. McCullough v. State, 268 Ga. App. 445, 602 S.E.2d 181 (2004). Objection to evidence must specify ground upon which objection is based. — When objection to evidence does not state ground upon which the objection is based, error cannot be assigned upon overruling thereof; the ground must be specific, and must point out wherein and how admission of evidence would violate some recognized rule of the law of evidence. Cooksey v. State, 149 Ga. App. 572, 254 S.E.2d 892 (1979). In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed. Eiberger v. West, 165 Ga. App. 559, 301 S.E.2d 914 (1983). 290 Page: 291 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-5-22 Date: 06/14/13 Time: 12:24:50 GA RV 13 RV 4(T4-6) - EP Objection merely that evidence is inadmissible is equivalent to no objection. — Objection to admission of evidence upon ground merely that the evidence is inadmissible is equivalent to assigning no reason at all for the evidence’s exclusion. McDonald v. State, 21 Ga. App. 125, 94 S.E. 262 (1917). Objection necessary although judge previously promises to exclude testimony if connection with crime not established. — When trial judge promises that certain testimony which counsel for accused moves to exclude, on ground that the testimony does not connect the accused with the crime for which the accused is being tried, will be excluded unless such connection is shown, failure to make any subsequent motion to exclude the testimony can be treated by the court as a waiver of the objection, and failure to exclude the testimony is not cause for a new trial. Quinn v. State, 22 Ga. App. 632, 97 S.E. 84 (1918). One cannot urge admission of evidence over objection of opposite party as ground for new trial. — After verdict it is too late for party who upon trial made no objection to testimony which was inadmissible or of no probative value, to urge for first time, as reason why new trial should be granted that party, failure of the judge to exclude such testimony upon motion of opposite party. That party’s failure to object upon the party’s own part, or to join in objection of the party’s opponent will be construed as a waiver of all objection to it, and as a tacit admission that the party considered the testimony beneficial to that party’s cause. Wright v. State, 6 Ga. App. 770, 65 S.E. 806 (1909). When part of evidence is admissible, objection to that part as a whole may be overruled. Dye v. State, 77 Ga. App. 517, 48 S.E.2d 742 (1948). Obligation to point out objectionable portion of evidence. — While superior courts may grant new trials when objection is made to specified evidence as a whole, part of which is admissible and part inadmissible, and objection does not point out objectionable portion, there is no error in admitting entire evidence. Jones v. Blackburn, 75 Ga. App. 791, 44 S.E.2d 555 (1947). Content of Motion Motion for new trial must state nature of objection or objections made to admission of illegal evidence. Licett v. State, 23 Ga. 57 (1857); Evans v. State, 33 Ga. 1 (1861); Reilly v. State, 82 Ga. 568, 9 S.E. 332 (1889); Brown v. State, 105 Ga. 640, 31 S.E. 557 (1898); Sable v. State, 14 Ga. App. 816, 82 S.E. 379 (1914). Ground of motion for new trial should be complete within itself. Williamson v. Prather, 188 Ga. 545, 4 S.E.2d 140 (1939). When motion does not clearly show admission of illegal evidence, new trial will be denied. Anderson v. State, 122 Ga. 161, 50 S.E. 46 (1905). Must show that objection was made at time of exclusion complained of. — Ground of motion for new trial, not indicating that evidence was illegally withheld from jury against demand of applicant, does not contain a sufficient assignment of error. Ponder v. Walker, 107 Ga. 753, 33 S.E. 690 (1899). Ground of motion for new trial based upon admission of evidence should state objection made to evidence, and that such objection was urged at time evidence was offered; otherwise no question is raised for determination. Adkins v. State, 137 Ga. 81, 72 S.E. 897 (1911); McDonald v. State, 21 Ga. App. 125, 94 S.E. 262 (1917). Supreme Court will not pass upon question of admissibility of evidence when ground in motion for new trial fails to show that objections for exclusion of evidence were urged before trial judge when evidence was offered. Davis v. Buie, 197 Ga. 835, 30 S.E.2d 861 (1944). It is insufficient to show that ground of objection existed at time of making of motion. Andrews v. State, 118 Ga. 1, 43 S.E. 852 (1903); Richardson v. State, 141 Ga. 782, 82 S.E. 134 (1914). Objection urged in motion for new trial must be same as objection made during trial. Cooner v. State, 16 Ga. App. 539, 85 S.E. 688 (1915). Materiality of excluded evidence and object for which the evidence was offered must appear in motion for new trial. Weeks v. State, 79 Ga. 36, 3 S.E. 323 (1887). 291 Page: 292 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Content of Motion (Cont’d) Plaintiff in error must show that the plaintiff was harmed and prejudiced by ruling complained of. — In order for court to grant new trial because of alleged error in introduction of evidence, upon direct exception to this court, it is incumbent upon plaintiff in error to show affirmatively in bill of exceptions, that the plaintiff was harmed and prejudiced by such ruling; and when there is no brief of evidence before this court, and it is not made to appear from bill of exceptions but that there was other evidence before the jury upon same subject, the plaintiff in error fails to show error requiring grant of a new trial in erroneous introduction of such evidence. McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935), rev’d on other grounds, 182 Ga. 252, 185 S.E. 246 (1936). Evidentiary basis for motion under section must be set out. — When evidence is not literally or in substance set out in motion for new trial, nor is the evidence attached as an exhibit, the motion is insufficient. Jackson v. State, 93 Ga. 190, 18 S.E. 401 (1893); Norred v. State, 127 Ga. 347, 56 S.E. 464 (1907); Garvin v. State, 76 Ga. App. 684, 47 S.E.2d 192 (1948). Assignment of error upon admission of evidence will not be considered when evidence alleged to have been illegally admitted is not set forth literally, or the substance clearly stated, in motion for new trial and objection thereto. Pearson v. Brown, 105 Ga. 802, 31 S.E. 746 (1898); Hicks v. Mather, 107 Ga. 77, 32 S.E. 901 (1899); Georgia N. Ry. v. Hutchins & Jenkins, 119 Ga. 504, 46 S.E. 659 (1904); Hicks v. Webb, 127 Ga. 170, 56 S.E. 307 Date: 06/14/13 Time: 12:24:50 5-5-22 (1906); Smith v. Savannah Elec. Co., 25 Ga. App. 59, 102 S.E. 548 (1924). Complaint in ground of motion for new trial of ruling admitting or excluding as evidence a paper, which does not set forth the paper literally or in substance in the ground itself or as an exhibit thereto properly identified, is insufficient to present any question for decision by the Supreme Court on a bill of exceptions assigning error on a judgment refusing a new trial. Williamson v. Prather, 188 Ga. 545, 4 S.E.2d 140 (1939). Motion must state name of witness whose testimony is complained of. — Ground of motion for new trial which complains of admission of specified testimony must state name of witness whose testimony is complained of. Adams v. State, 22 Ga. App. 252, 95 S.E. 877 (1918). Motion must show court was advised what answer of witness, whose testimony was excluded, would be. — Ground of motion for new trial, which assigns error because court excluded certain testimony of a witness, will not be considered, when movant has failed to show that court was advised as to what answer of witness would be. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935). Motion claiming testimony lacked proper foundation, which fails to disclose preliminary testimony. — Ground for motion for new trial which complains of admission of testimony as to contradictory statements made by witness without sufficient foundation being laid therefor, but which does not disclose what preliminary testimony, in way of laying foundation, was produced, is incomplete. Miliken v. State, 8 Ga. App. 478, 69 S.E. 915 (1910).