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Womack v. Johnson

The plaintiffs waived any error in defense counsel's use of certain photographs during his opening statement, as they did not object until the following morning.

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Michael Womack and Geston Womack brought this action in the Superior Court of Polk County against Wendi Spain Johnson, as administratrix of the estate of Jerry Floyd Spain to collect an alleged debt arising from the Womacks’ and Spain’s joint farming operation. A jury found in favor of Spain’s estate, and the Womacks appeal, contending that the trial court erred in denying their motion for a mistrial, which was based on allegedly improper conduct by Spain’s counsel during his opening statement. For the following reasons, we affirm.

During his opening statement, Johnson’s counsel showed the jury photographs of Spain and his infant son.1 Johnson’s counsel blocked the photographs from the view of the Womacks’ counsel, who could hear the argument being made but could not actually see the photographs as they were being displayed. It is undisputed that these photographs were not listed in the pretrial order and that Johnson had not shown them to either the Womacks or the Court before using them during the opening statement.

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