Page:Walls v. State (1999).pdf/9

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498
Walls v. State
Cite as 336 Ark. 490 (1999)
[336


background information about the murdered Stocks family members. Defense counsel objected to the testimony of Annie Mae Harris when she testified that Heath told her that Walls was training him to be a "hit man." Finally, defense counsel objected when the prosecutor asked Heath whether Walls talked to him about killing people. Defense counsel argued victim impact had nothing to do with the dismissed solicitation-to-murder charges and moved in limine to that effect, but the circuit judge responded that he would listen to whatever Walls did to Heath that had an impact on Heath's life. The scope of the circuit judge's ruling was clear that he would allow as victim-impact testimony whatever Walls said or did to Heath, regardless of whether it embraced the solicited murders of the Hogans or the actual murders of the Stocks family. Under these circumstances where a bench trial is involved and where the ruling has been made, continuous objections to the same testimony on relevancy grounds are not required. We hold that the issue is preserved for our review even though defense counsel did not object to the later testimony of Reverend Marble.

[6] There is one final point concerning preservation of this issue. After the ruling by the circuit judge that he would allow all testimony showing any impact on Heath caused by the rapes, defense counsel cross-examined Heath about Walls's role in the Stocks murders. The question is whether by doing so, defense counsel waived any objection to this evidence. We think not. In an analogous case, we held that plaintiffs counsel did not waive an objection made in a motion in limine regarding marijuana use by the plaintiff in a medical malpractice case. See Burnett v. Fowler, 315 Ark. 646, 869 S.W.2d 694 (1994). In Fowler, the motion was overruled. After the ruling, plaintiff's counsel was first to present to the jury evidence of marijuana use by the plaintiff. The jury returned a defendant's verdict, and the plaintiff moved for a new trial, which the trial court granted on the basis that the evidence of marijuana use had been too prejudicial. In holding that plaintiffs first introduction of the marijuana usage did not constitute a waiver of the issue on appeal, we said: "We see no reason why, once the matter of admissibility has been settled, either party may