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GARNER v. THE STATE.
72456.
Burglary, etc. Fulton Superior Court. Before Judge Langford.
that it was appellant's cross-examination of the witness that had rendered the explanation of her conduct in the first search a relevant issue. "[T]he attorney for the defendant by his cross-examination brought into the picture the conduct of the officer. This being true, the evidence was admissible to explain the conduct of such officer. The answer of the witness served to explain [her] conduct and served to save [her] testimony from disrepute before the jury as to being unreasonable and unauthorized." Foster v. State, 72 Ga. App. 237, 239 (2a) (33 SE2d 598) (1945). See also Harris v. State, 69 Ga. App. 872-873 (27 SE2d 51) (1943). Moreover, to the extent that the testimony was merely cumulative of that already given by the witness without objection on direct, its admission, if error, was harmless. "Where the same evidence is earlier elicited from the witness -- unobjected to, no reversible error appears. [Cit.]" Wilson v. State, 145 Ga. App. 315, 322 (244 SE2d 355) (1978).
After the above colloquy, the State elicited from the witness the name of the murder victim. Appellant did not object or move for mistrial. At the conclusion of the State's redirect, the trial asked appellant's counsel if he wished to cross-examine the witness further. Appellant's counsel responded: "Let me finish with this witness then I'll have another motion. . . ." Only after he had finished cross-examining the witness did appellant's counsel move for a mistrial based upon the previous eliciting of the murder victim's name during the State's redirect of the witness. The motion was denied. Although appellant's counsel stated at the outset of re-cross-examination that, at the conclusion, he would "have another motion" of some unspecified type, it is the law of this State that a motion for mistrial "which is not made at the time the questions objected to are answered is not timely and will be considered as waived because of the delay in making it. [Cits.]" (Emphasis supplied.) Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986). "By failing to make a timely objection, [appellant] has waived any objection that might have been made. [Cit.] Moreover, a mistrial will not lie where evidence is admitted without objection ([cit.]) and a motion for mistrial not made contemporaneously with the alleged misconduct makes the motion not timely. [Cit.]" Bennett v. State, 165 Ga. App. 600, 601 (302 SE2d 367) (1983).
2. Appellant further asserts that the trial court erred by failing to give the jury instructions regarding the limited purpose for which the evidence concerning the "murder investigation" was being admitted. No such instructions having been requested, it was not error to fail to give them. See generally Pyburn v. State, 175 Ga. App. 158, 159 (2) (332 SE2d 899) (1985).
Lewis R. Slaton, District Attorney, Joseph J. Drolet, John M. Turner, Jr., Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.
R. David Botts, for appellant.
DECIDED SEPTEMBER 2, 1986.
Thursday May 21 15:04 EDT


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