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Barrow v. State9/16/2004
eman said that the vehicle he was following . . ." Before Officer Amerman could finish his sentence, Barrow's attorney objected as follows: "I'm going to object to [Officer Amerman] testifying to what Officer Freeman said. I think the proper testimony is what he did as a result." Although the trial court overruled the objection, Officer Amerman never finished his sentence. Nonetheless, Barrow contends that Officer Amerman's testimony constituted improper bolstering.
Given that Officer Amerman never finished his answer, we fail to see how his testimony could be construed as bolstering. Moreover, Barrow does not argue that he was harmed by Officer Amerman's testimony. It follows that this enumeration of error presents no basis for reversal.
5. Finally, Barrow contends that the form of the verdict was improper. However, Barrow failed to object to the form of the verdict at trial, and he has thus waived this issue on appeal.
Case Number A04A1430
According to Williams, the trial court erred in denying his Batson challenge. He also asserts that the trial court erred in: admitting the audio portion of a videotape as part of the res gestae; permitting a witness for the State to make prejudicial statements in front of jurors; and improperly "intimating" a judicial opinion that Williams possessed drugs. Williams also challenges the sufficiency of the evidence. We address each argument in turn.
6. Williams first argues that the trial court erred in denying his Batson challenge. After the jury was impaneled and dismissed for the day, Williams' attorney challenged the State's strike of the only African-American in the jury pool. The prosecutor objected to the motion as untimely. The prosecutor nonetheless explained that he struck the potential juror because the juror was not present in the courtroom during jury selection. The trial court denied Williams' motion, and we find no error. As noted by the trial court, a Batson challenge made after the jury has been impaneled and sworn is untimely. Furthermore, even though it was not required, the prosecutor gave a race neutral reason for the strike. Accordingly, this claim of error lacks merit.
7. During trial, the State played for jurors the videotape from Officer Amerman's patrol car. Although Williams objected to the admission of the audio portion of the tape, the trial court permitted the State to play the tape as part of the res gestae. Williams challenges this ruling on appeal.
Res gestae declarations are those that accompany an act or are so connected in time to the act as to be free from suspicion of device or afterthought. And, as this Court recently noted, circumstances surrounding an arrest that constitute part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. A trial judge's determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered will not be disturbed on appeal unless that determination is clearly erroneous.
Given that the videotape at issue - including the audio - was made contemporaneously with the incident at issue, the trial court did not err in admitting it as part of the res gestae.
8. Following a lunch break, Williams' attorney informed the trial court that, during lunch, he overheard Officer Amerman talking in a loud voice about Williams' last minute refusal to enter a guilty plea. Williams was concerned that several jurors who were nearby may have heard Officer Amerman's comments. The trial judge called the jurors into the courtroom and asked if they had heard anything
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