Harman Ex Rel. Harman v. Borah

NIGRO, Justice,

concurring.

I join the majority opinion, except for the portion of the opinion in which the majority finds that the Harmans’ failure to lodge an immediate objection when the trial court engaged in an improper conversation with an expert witness for the defense constituted a valid reason for the trial court to deny their motion for a new trial.

In effect, the majority concludes that the trial court properly found that the Harmans’ waived their objection to the improper conversation by waiting an hour before lodging the objection, despite the fact that counsel for the Harmans explained the one hour delay by noting that he did not wish to draw any further attention to the conversation in the presence of the jury. Contrary to the majority, I believe that the Court’s decision in Commonwealth v. Hammer, 508 Pa. 88 , 494 A.2d 1054 (1985) supports a conclusion that the waiver doctrine should not be strictly applied in the instant case to justify the trial court’s decision denying the Harman’s motion for a mistrial.

In Hammer , then Justice, now Chief Justice, Flaherty wrote on behalf of the Court that the waiver doctrine should not be strictly applied where alleged improprieties of a trial judge are at issue, for “when the position of power and *478 authority enjoyed by the judge is considered, the strict enforcement of the waiver doctrine becomes inadvisable.” Hammer, 508 Pa. at 97 , 494 A.2d at 1058 . Accordingly, the Court refused to apply the waiver doctrine to foreclose Hammer from obtaining relief in the form of a new trial based on the trial judge’s improper conduct in questioning defense witnesses, despite the fact that the appellant only challenged the trial judge’s conduct in post trial motions. Id. at 99 , 494 A.2d at 1060 . Chief Justice Flaherty explained that:

[A] judge who poses a question or makes a comment during a trial is predisposed to believe that the question or comment is proper, lest it not be spoken. Given that predisposition, the likelihood that the judge will be well-cautioned by counsel’s objection is negligible. In that context, the rationale underlying the waiver doctrine, that timely objection gives the court the opportunity to cure the error, becomes a relatively empty one. Indeed, the possibility exists that counsel’s objection will be viewed as a source of annoyance.....

Id at 98, 494 A.2d at 1059 .

In the instant case, counsel for the Harmans objected to an improper, off-the-record conversation with a defense expert witness in the presence of the jury. 1 Although the objection was lodged approximately an hour after the improper conversation took place, counsel for the Harmans attempted to explain the delay to the trial judge by noting that he did not *479 wish to draw further attention to the conversation in the presence of the jury. In my view, implicit in counsel’s explanation for the delay in objecting are two distinct rationales. First, counsel for the Harmans was obviously concerned that an immediate objection on his part in the presence of the jury would further draw attention to the improper conversation and might thereby bolster a perception on the part of individual jurors that the trial judge found Dr. Strand to be more reliable than the expert witnesses for the Harmans. In addition, it seems likely that counsel’s delay resulted, at least in part, from his reluctance to risk antagonizing the judge and alienating jurors, who naturally look to the trial judge for guidance. My belief in this regard is founded in no small part on the common-sense notion that it would take a very rare attorney indeed to expressly state such an explanation to the same trial judge whose conduct he was objecting to as improper, and before whom he was trying his case.

Counsel who wish to object to comments or conduct on the part of a trial judge which they find to be improper are faced with an exceedingly difficult choice. They can either lodge an immediate objection, and risk further drawing the jury’s attention to the improper conduct, antagonizing the trial judge, and/or alienating the jury; or they can postpone lodging an objection in an effort to ameliorate one or more of their legitimate concerns and risk waiving the objection altogether. The Court recognized this reality in Hammer , citing with approval the following excerpt from Collins v. Sparks, 310 S.W.2d 45 (Ky.1958), in which case the Court of Appeals of Kentucky established an exception to the requirement of timely objection:

When the trial judge makes an objectionable remark, counsel is faced with a dilemma. He may risk antagonizing the judge by calling attention to the objectionable remarks, which scarcely can be erased from the minds of the jurors by a subsequent admonition. If objection is made unsuccessfully, the harm may be aggravated and the situation may be worsened. He may make no objection in the hope that the jury will ignore the remark. This places the *480 counsel in an unfair position and at a disadvantage which may not be due to any conduct on his part.... Viewed in this light, an objection to the remarks of a trial judge is unnecessary, ...

Commonwealth v. Hammer, 508 Pa. 88 , 98 n. 4, 494 A.2d 1054 , 1059 n. 3 (citing Collins v. Sparks, 310 S.W.2d 45, 48-49 (Ky.1958)). Although the majority recognizes the difficult choice faced by counsel who believe that the trial judge before whom they are appearing has acted in an inappropriate manner, it nevertheless goes on to conclude that the exception to the waiver doctrine established by the Court in Hammer will provide them relief only in the most egregious cases of inappropriate judicial conduct, and therefore concludes that the exception does not apply in the instant case. I disagree with the majority’s conclusion in this regard, and would find that the facts of the instant case support the application of the Hammer exception to excuse counsel’s failure to lodge a contemporaneous objection to the trial judge’s admittedly improper conversation with a defense expert witness. 2 Therefore, I respectfully disagree with the majority’s determination that the Harmans’ failure to immediately object to the improper conversation constituted a proper basis for the trial court’s decision to deny their motion for a new trial. In all other respects, however, I join the majority opinion.

. The majority states that the Harmans have presented no evidence that the trial judge expressed any bias against them during the trial. But that is exactly what counsel for the Harmans objected to — an apparent bias in favor of a defense expert witness which the trial judge exhibited in the presence of the jury. In addition, the majority appears to place the burden on the Harmans to establish that their objection was not waived. The placement of such a burden of proof on the Harmans is in no way proper, as they come before this Court as appellees, and not appellants. Finally, I would disagree with any suggestion that the exception to the waiver doctrine set forth in Hammer is limited to only those situations where the record reveals that the trial judge exhibited a pronounced bias in favor of one of the parties appearing before him. In my view, objection to the inappropriate conduct of a judge can be equally meaningless regardless of whether the judge’s inappropriate conduct demonstrates a bias in favor of one of the parties or not.

. As noted by the majority, the trial judge in the instant case issued a curative instruction the day after the improper discussion took place. Thus, it would appear that the instant case represents one of those relatively uncommon instances referred to by the Court in Hammer where a trial judge is “well-cautioned” by counsel’s objection to his improper comments or conduct. Hammer, 508 Pa. at 98 , 494 A.2d at 1059 . That fact, of course, has little bearing on the question of whether justice would be served by strictly applying the waiver doctrine in the instant case.