WOMACK Et Al. v. JOHNSON, 328 Ga. App. 543

Plaintiffs Michael and Geston Womack sued Wendi Spain Johnson (administratrix of Jerry Spain’s estate) to collect an alleged debt from a joint farming operation. The estate (Spain) prevailed at jury trial.
During defendant’s opening statement, defense counsel displayed photographs of the decedent Spain and his infant son and discussed the child; these photos were not listed in the pretrial order and were not shown to plaintiffs or the court in advance.
The defense counsel displayed the photos such that plaintiffs’ counsel could hear the accompanying remarks but could not see the photographs while they were shown to the jury.
The Womacks did not object at the time the photographs were shown; they moved for a mistrial the following morning, arguing the images were prejudicial and not disclosed in the pretrial order.
The trial court denied the mistrial, instructed defense counsel not to use or refer to the photographs or child for the remainder of the trial, and the Womacks appealed on the basis that the trial court abused its discretion by denying a mistrial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court abused discretion by denying mistrial for display of undisclosed, allegedly prejudicial photographs in opening statement	Photographs (and references to the infant beneficiary) were inherently prejudicial, not listed in pretrial order, and denied plaintiffs fair trial — mistrial required	Plaintiffs waived any error by failing to contemporaneously object; photos and identity of beneficiary were proper to describe who has an interest	Held: Error waived for appeal because no contemporaneous objection; trial court did not abuse discretion in denying mistrial
Whether an exception to contemporaneous-objection rule applies because plaintiffs could not see photos when shown	Womacks argued they were prevented from timely objecting because photos were blocked from their view	Johnson argued counsel’s remarks could be heard and identity of beneficiary was apparent; plaintiffs could have objected to remarks or nondisclosure	Held: No exception — plaintiffs could hear remarks and knew identity issue; timely objection was required and was not made

Wright v. Wright, 222 Ga. 777 (trial court discretion on mistrial review requires objection)
Counts v. Moorehead, 232 Ga. 220 (mistrial may be granted on motion for improper remarks)
Sharpe v. Dept. of Transp., 267 Ga. 267 (must object at earliest opportunity to preserve error)
Brooks v. State, 284 Ga. App. 762 (failure to contemporaneously object waives right to complain on appeal)
LN West Paces Ferry Assocs. v. McDonald, 306 Ga. App. 641 (late mistrial motion after opening statements waives appellate review)
Booker v. Older Americans Council of Middle Georgia, Inc., 278 Ga. App. 407 (bringing improper argument to court’s attention after argument does not preserve error)
Felts v. State, 256 Ga. App. 733 (untimely objection to opening remarks waives appellate review)