PRESERVING OBJECTION DURING OPENING: POLK V. GREER (COA 4/27/2007)

POLK V. GREER
CIVIL PROCEDURE:  TRIALS – Opening statements and contemporaneous objections
2006-CA-000340
PUBLISHED: REVERSING; LAMBERT
DATE RENDERED: 4/27/2007

The COA reversed the trial court’s denial of the plaintiff/appellant’s motion for a new trial arising from statements made by counsel during opening.  The defense counsel referred to the plaintiff as a "two time convicted persistent felon" [as opposed to simply a felon and which goes to credibility].  Plaintiff objected 45 seconds later at the conclusion of the opening statement and moved for a mistrial.  The judge denied the objection and mistrial. 

The case proceeded to trial over a disputed traffic light in which the jury later found against Polk [the plaintiff and party referred to as the felon during opening] and in favor of defendant Greer.

The judge also overruled plaintiff Polk’s post-trial motion for a new trial. 

The purpose of opening statements is to allow each party to summarize for the jury what its likely proof will be during the trial. And while the parties are given reasonable latitude during opening statements, their statement should not contain references to plainly inadmissible matters or to anything that may tend to unduly prejudice the opposing party. See Mills v. Commonwealth,  220 S.W.2d 376, 378 (Ky. 1949).

Under Kentucky Rules of Evidence (KRE) 609, a party may impeach the credibility of an opposing party on cross-examination by inquiring whether he is a convicted felon.  If the examined party answers affirmatively, the impeaching party may not inquire further about the matter or introduce extrinsic evidence regarding the nature of the conviction or convictions. See Blair v. Commonwealth, 144 S.W.3d 801, 808 (Ky. 2004).

COA held, however, that an objection voiced less than one minute after the claimed error and before any other material phase of the trial had begun meets the “contemporaneous objection” requirement of CR 46. Indeed, the purpose of the contemporaneous-objection rule is to afford the trial court an opportunity to prevent or cure any error in a timely fashion.  See Olden v. Commonwealth, 203 S.W.3d 672, 675 (Ky. 2006) (purpose of criminal analog of  contemporaneous-objection rule).

And here, because Polk voiced his objection a mere 45 seconds after the error occurred and before the trial had actually moved on past its opening-statement phase, Polk’s delay in no way impinged upon the trial court’s opportunity to attempt curative measures. Consequently, we reject Greer’s contention that Polk’s mistrial claim is not preserved for  review.

COA also held the trial court abused its discretion by rejecting Polk’s objection. The prejudice imposed upon Polk by Greer’s opening statement necessitates a new trial here as the trial court precluded any opportunity for a curative admonition by passing Polk’s motion for a new trial until after trial. 

Digested by Michael Stevens