Garnett v. State
Garnett v. State
Opinion
Robert Eugene Garnett, Jr., was convicted of the murder of Joseph Allen Hutchins and sentenced to imprisonment for a term of 45 years. Two issues are raised on this appeal from that conviction.
Garnett and Ms. Faire were married at the time of the murder, but had been separated for a little over two weeks. During cross-examination of Ms. Faire, defense counsel asked a number of questions implying that Ms. Faire had become romantically involved with the victim prior to her separation from Garnett. During redirect examination, the following occurred:
"Q. When you separated from the defendant on the 29th of May, did that have anything to do with Joey Hutchins [the victim]?
"A. No, sir.
"Q. What did it have to do with?
"A. Him, we didn't get along.
"Q. Had you ever separated from him before?
"A. Yes, sir.
"Q. Once or more than once?
"A. More than 10.
"Q. Are you afraid of Bobby Garnett?
"A. Yes, I am.
"Q. Why?
"A. Because he is violent. He has hit me before. He has tore [sic] up things.
"[Defense Counsel]: Objection; she is narrating.
"Q. Have you ever had him arrested before for striking you?
"[Defense Counsel]: Objection. May we approach the bench."
There was then an off-the-record bench conference, followed by a conference out of the presence of the jury. During that second conference, defense counsel moved for a mistrial on the basis that the prosecutor's last question improperly placed Garnett's character in issue. The trial court denied the motion for mistrial, stating: "I will give some curative instructions for the jury to disregard anything about whether there was an arrest. . . ." Back in the presence of the jury, the trial judge explicitly and unequivocally instructed the jurors to disregard the prosecutor's question regarding an arrest. He also polled the individual jurors, each of whom affirmatively stated that they could disregard this question.
"A motion for mistrial should not be granted where the prejudicial qualities of the comment can be eradicated by action of the trial court." Nix v. State,
Moreover, a mistrial "specifies such fundamental error in a trial as to vitiate the result," Diamond v. State,
As part of this issue, Garnett argues that the prosecutor's question "characterized him as a wife-beater," and, along with certain questions posed to other witnesses, served only to prejudice him in the eyes of the jury, of which, he says, ten members were women. Aside from the fact that this argument was not advanced at trial and, consequently, cannot be asserted on appeal, see Griffin v. State,
Immediately after concluding its oral charge and without following the usual practice of asking counsel if they had any objection to the charge, the trial court directed the jury to retire and begin its deliberations. The following then appears in the record:
"[District Attorney: Judge the State is satisfied with the Court's charge.
"(The jury retired to commence deliberations.)
"[Defense Counsel]: The defendant objects to the following statements made in the Court's charge to the jury. . . ."
Although we note that there is a split in authority as to whether an objection made at this point is, in fact, timely,1 we need not resolve that question in this case. Even if we consider Garnett's objections to the oral *Page 1156
charge to have been timely, the issue is still not properly before this court since the trial court never ruled on the objection. "The law in Alabama is well settled that a preliminary requirement in preserving appellate review consists of an objection and an adverse ruling." Pinkard v. State,
For the reasons stated above, the judgment of the Russell County Circuit Court is due to be, and it is hereby, affirmed.
AFFIRMED.
All Judges concur.
Rule 51, A.R.Civ.P.; Rule
Reference
- Full Case Name
- Robert Eugene Garnett, Jr. v. State.
- Cited By
- 27 cases
- Status
- Published