We granted certiorari to the Court of Appeals in this professional negligence action to address (1) the standard for harmless error where a trial court refuses to strike an unqualified juror and (2) the trial court’s duties under OCGA § 9-10-185 to remedy prejudicial statements by counsel. Finding that the Court of Appeals erred in its analysis of both issues, we reverse and remand for further proceedings.
Plaintiffs Kerry Stolte and her husband, Scott Ross, filed a malpractice action against Defendant M. James Fagan III and his dental practice, alleging that Dr. Fagan had negligently severed Stolte’s lingual nerve in the course of a wisdom tooth extraction. Following a five-day trial and two days of deliberations, the jury returned a defense verdict. After Stolte’s motion for new trial was denied, she appealed, alleging errors in jury selection and closing argument.
In her appeal, Stolte claimed that the trial court had erred in refusing to strike for cause four jurors who were predisposed in favor of medical professionals and/or against medical malpractice plaintiffs. In addition, Stolte claimed that, during closing argument, defense counsel had improperly urged the jury to consider the impact of a plaintiff’s verdict on Dr. Fagan’s professional reputation and that the trial court had failed to sufficiently address this impropriety. The Court of Appeals affirmed, Stolte v. Fagan,
1. The first issue we consider is whether a civil litigant who appeals a trial court’s refusal to excuse an allegedly unqualified juror must show that she used all her peremptory strikes
Having reviewed our case law on the topic and the policy underpinnings of the Harris rule, we discern no sound reason for limiting its scope to criminal cases. In justifying its approach, the Harris court emphasized the defendant’s statutory right to “a panel of... qualified jurors. [Cit.]” Harris,
In addition, as noted by Justice Gregory, whose special concurrence on the topic was embraced by the Harris court, “[t]here are too many variables which may give rise to the non-use of a peremptory challenge” to justify viewing the non-use of strikes as conclusive proof of the harmlessness of an erroneous failure to strike for cause. Blankenship v. State,
In sum, the policy underlying the Harris rule, to facilitate the attainment of a fair and impartial jury, is no less important to civil litigants as it is to parties in criminal cases. See Kim v. Walls,
2. We next consider Stolte’s claims regarding closing argument. As defense counsel was concluding his closing argument, he stated, “[tjhis is a very serious matter. [Dr. Fagan’s] conduct, his reputation, his treatment, his care has been called into question this week.” Stolte’s counsel immediately objected, and during a sidebar the trial court instructed defense counsel to “move on.” Resuming his closing, defense counsel referred on several occasions to the “trust” Dr. Fagan’s patients place in him: “Jim Fagan has dedicated his entire professional career to treating patients____Patients everyday in this town, the town we all live in, trust Jim Fagan for extractions, for dental implants, putting prosthetic teeth in, they trust him for root canals, they trust him for cleanings.” At the conclusion of defense counsel’s closing argument some 90 seconds later, Stolte’s counsel signaled an objection, and, after a recess, noted defense counsel’s apparent disregard of the court’s earlier admonition and requested an immediate curative instruction. The trial court refused this request, opting to address the issue during its general charge to the jury by inserting a reference to “reputation” into the standard sympathy charge it had already agreed to give. Stolte’s counsel noted for the record his exception to the court’s ruling and subsequently raised this issue on appeal, claiming the trial court had failed to fulfill its duty under OCGA § 9-10-185 to prevent counsel’s prejudicial statements.
(a) OCGA § 9-10-185 reads:
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds. In its discretion, the court may order a mistrial if the plaintiff’s attorney is the offender.
Id. In O’Neal v. State,
Nowhere in the statute is there a requirement for... counsel to specifically request additional remedies after interposing an objection to the improper statements made by [opposing counsel]. To the contrary, the plain language of [the statute] refers to the trial court’s independent duty, after... counsel’s objection, to rebuke [opposing counsel], give an appropriate curative instruction, or grant a mistrial in the event that*481 [opposing counsel] has injected into the case prejudicial statements on matters outside of the evidence. Consistent with the plain language of [the statute], this Court’s most recent authorities interpreting the statute have allowed appellate review of a trial court’s failure to rebuke a prosecutor or give a curative instruction where defense counsel did nothing more than interpose an objection to the prosecutor’s improper statements. [Cits.]
(Emphasis in original.) Id. at 221-222 (1). In other words, once an objection to improper argument is sustained, “[t]he objecting attorney is under no duty to request [remedial] measures; at that juncture the trial court is required to undertake them on its own initiative.” Christopher J. McFadden et al., Georgia Appellate Practice § 9:15 (2011-2012 ed.).
Given that the language of OCGA § 9-10-185 is virtually identical to that in OCGA § 17-8-75, and given that our construction of OCGA § 17-8-75 in O’Neal was expressly premised on the “plain language” of that statute,
Applying this rule here, once the trial court sustained Stolte’s objection, the court assumed an independent duty to take some remedial action — a curative instruction or rebuke of counsel, for example — without any additional request from Stolte’s counsel. Accordingly, the omission of such a request did not effect an acquiescence in the trial court’s inadequate response or a waiver of Stolte’s right to appellate review of this issue. Compare Smith v. State,
(b) As to defense counsel’s subsequent “trust” remarks, we agree with the Court of Appeals that Stolte’s counsel failed to object contemporaneously as is required. “The proper time to object to improper argument is when it occurs. [Cit.]” Moxley v. Moxley,
To the extent Stolte contends that her prior objection to the “reputation” comments sufficed to preserve her objection to the “trust” remarks, we reject this argument. Even if, as Stolte claims, the “trust” comments were sufficiently similar to the “reputation” comments to have been substantively encompassed within Stolte’s initial objection, the fact that Stolte made a prior objection does not obviate her responsibility to interpose a contemporaneous objection at each instance of offending argument. See, e.g., Telcom Cost Consulting, Inc. v. Warren,
However, the untimeliness of Stolte’s objection does not, as the Court of Appeals held, preclude all appellate review of this issue. Rather, when no timely objection is made, the standard for reversible error is “whether the improper argument in reasonable probability changed the result of the trial. [Cit.]” Mullins, supra,
Judgment reversed and case remanded.
Notes
Technically, the term “peremptory challenge” appears only in those Code sections applicable to criminal juries; however, the same concept is embraced in the civil jury provisions affording the parties alternate strikes without cause. See Richard C. Ruskeil, Davis & Shulman’s Ga. Practice & Procedure, § 20:6 & n. 1 (2011-2012 ed.). For ease of reference, we use the term “peremptory strikes” - as did the Court of Appeals and the parties - to denote strikes without cause in both criminal and civil cases.
OCGA § 17-8-75 provides:
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
We acknowledge that in circumstances like those presented here, this rule creates a dilemma for the objecting party, who, being obliged to make repeated objections in order to preserve the issue, risks alienating the judge and jury with such interruptions. However, given our clear enunciation - first in O’Neal and now here - of the trial court’s mandate to take affirmative remedial steps to remedy improper argument upon objection, we believe the risk of repeated improprieties will be diminished. In other words, had the trial court given a curative instruction or issued a rebuke to defense counsel in the first instance, it is likely defense counsel would have been more cautious in his choice of words during the remainder of his argument, thus avoiding subsequent problems altogether.
We do question the continued validity of the rationale for reviewing the merits of untimely objections to closing arguments in civil cases, when we do not conduct such a review in non-death penalty criminal cases. See, e.g., Hunt v. State,