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09/30/94 EDWARD EARL SIMMONS HARDEMAN v. STATE

September 30, 1994

EDWARD EARL SIMMONS HARDEMAN
v.
STATE



Appeal from Jefferson Circuit Court. CC-92-3779. James Garrett, TRIAL JUDGE.

Rehearing Denied November 10, 1994. Released for Publication March 10, 1995.

Bowen

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

Edward Earl Simmons Hardeman was convicted of the murder of Bennie James Rembert and was sentenced to 30 years' imprisonment. He raises six issues on this direct appeal from that conviction.

I

The appellant claims that the State violated the rule prohibiting the impeachment of one's own witness.

On voir dire examination at trial, Birmingham Police Officer Cetonia Parham testified that the appellant did not make any statement when he was initially arrested and that the appellant "did say some things to [her], they just didn't involve the condition of the knife." R. 254-55, 258, 266-67. On direct examination, she testified that the appellant "said nothing" to her at the scene. R. 283. Defense counsel did not cross-examine the witness and the witness was excused.

However, later in the trial, the prosecution recalled Officer Parham and the following occurred:

"Q. [Prosecutor] Did he say anything to you?

"A. He said, 'We haven't done anything.'

"Q. How did he say that?

"A. He said, 'We haven't done anything.'

"MR. RELFE [defense counsel]: Just a minute, please, ma'am. When you say how did he say that, I'm going to object. I think that calls for a mental operation.

"THE COURT: I overrule as to that.

"MR. RELFE: Except." R. 404.

On cross-examination at this time, defense counsel questioned the officer about her apparently conflicting statements.

On appeal, the appellant claims that the State violated the rule prohibiting the impeachment of one's own witness. This issue was not preserved for review. No objection was made on this ground in the trial court.

"The assignment of a single objection is a waiver of all other objections not assigned. Harbin v. State, 15 Ala.App. 57, 59, 72 So. 594 (1916). 'By assigning specific grounds of objection the defendant waived all others.' Gamble v. State, 19 Ala.App. 590, 591, 99 So. 662 (1924). A defendant is bound by the grounds of objection raised at trial and cannot change them on appeal. Watkins v. State, 219 Ala. 254, 255, 122 So. 610 (1929). 'If a party makes a specific objection upon untenable grounds, which is overruled, then he cannot appeal by assigning a tenable ground upon which the evidence is inadmissible.' [C. Gamble, McElroy's Alabama Evidence § 426.01(11) (4th ed. 1991)]."

Leonard v. State, 551 So.2d 1143, 1151-52 (Ala.Cr.App. 1989). Furthermore, the objection that was interposed was untimely. "To be timely, an objection must be interposed as soon as the ground for the objection becomes apparent." Watson v. State, 439 So.2d 762, 769 (Ala.Cr.App. 1983). "When a question is asked of a witness calling for inadmissible matter, it is mandatory upon the party against whom it is offered to object after the question but before the answer. The effect of such a rule is that a timely objection is a condition precedent to assigning the admission of such an answer as grounds for error on appeal." C. Gamble, McElroy's Alabama Evidence, § 426.01(3) (4th ed. 1991).

II

The appellant asserts that the prosecutor was improperly allowed to question defense witness Adam Gallion about allegedly irrelevant and collateral matters in an attempt to impeach the witness. The appellant cites six instances of alleged improper cross-examination in this regard.

"Q. And blacks were the object of your hate?

"A. Yes.

"Q. That is the philosophy of the Confederate Hammer Skinheads, isn't it?

"A. No, that is not the philosophy.

"MR. RELFE: I'm going to impose an objection. I think we are getting far afield from where we came. I know this is cross-examination.

"THE COURT: Well, it is cross-examination. I'll overrule, but let's limit it somewhat." R. 522-23.

"Q. When you went down there to get in a fight, as you term it, you had a metal baseball bat, didn't you?

"MR. RELFE: Judge, again, I impose an objection at this point. I think we are getting far afield of where we are coming from.

"THE COURT: I would sustain as to that date." R. 530-31.

"Q. The fact of the matter is, you go down there to the fountain because there are a lot of interracial couples down there?

"A. No.

"MR. RELFE: Just a minute. I ...


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