
    Brian HANDLEY v. STATE of Alabama.
    CR-02-0514.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Rehearing Denied Oct. 24, 2003.
    Certiorari Denied March 26, 2004 Alabama Supreme Court 1030229.
    Michael F. Terry, Moulton, for appellant.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and WISE, J., concur. SHAW, J., concurs specially, with opinion. BASCHAB, J., concurs in the result. COBB, J., dissents, with opinion.

SHAW, Judge,

concurring specially.

I concur; however, I write specially to address the dissent. It is well settled that in order to preserve an issue for appellate review, one must generally object before an answer is given. See the cases cited in Alabama Digest Criminal Law Key Number 1036.1(2); see also C. Gamble, McEl-roy’s Alabama Evidence § 426.01(3)(5th ed.1996).

At Brian Handley’s sentencing hearing, following his entry of blind guilty pleas, the following exchange occurred during Officer Mark McCormick’s testimony:

“[PROSECUTOR]: Did Mr. Handley discuss whether or not he had considered taking [the victim’s] life?
“[OFFICER McCORMICK]: Yes, sir, he did.
“[PROSECUTOR]: What did he tell you?
“[OFFICER McCORMICK]: He told me that during what happened to [the victim] she was talking and his impression was she realized she had a severe head injury and she was trying to keep herself conscious and he said that he was tired of her rattling on and had considered killing her to keep her quiet[.]
“[PROSECUTOR]: Okay. Did he say why he didn’t?
“[OFFICER McCORMICK]: He said he changed his mind.
“[PROSECUTOR]: Thank you. [Handley’s attorney] may have some questions.
“CROSS-EXAMINATION BY [HAND-LEY’S ATTORNEY]:
“[HANDLEY’S ATTORNEY]: Officer McCormick, is this the statement that you took (indicating)?
“[OFFICER McCORMICK]: Yes, sir, it is.
“[HANDLEY’S ATTORNEY]: What you just testified to doesn’t appear in the statement?
“[OFFICER McCORMICK]: No, sir.
“[HANDLEY’S ATTORNEY]: Why is that?
“[OFFICER McCORMICK]: The only explanation I can say is I just failed to put it in the statement. There is — I cannot make an excuse for myself. I just did not put that in the statement.
“[HANDLEY’S ATTORNEY]: Your Honor, I move to have that struck from the record. We were not provided through discovery and were not made aware of any oral statement he made to that effect.
“THE COURT: I’ll overrule for purposes of the sentencing hearing. Overrule.
“[HANDLEY’S ATTORNEY]: Nothing further, Your Honor.”

(R. 42-44.)

It is clear from the above-quoted portion of the record that Handley’s attorney had a copy of Handley’s written statement. Because Handley’s attorney must have been aware that there was no mention in the written statement that Handley had considered taking the victim’s life, he should have objected when Officer McCormick responded affirmatively after the State asked him, “Did Mr. Handley discuss whether or not he had considered taking [the victim’s] life?” (R. 42-43.) Instead, he waited until he took Officer McCormick on cross-examination and challenged the credibility of his testimony by soliciting a concession from the officer that he had “just failed to put it in the statement.” (R. 43.) The majority’s finding that this issue, which concerns the admissibility of the statement, has not been preserved for appellate review does not “elevate[] form over substance” 887 So.2d 1010, as the dissent contends; rather, it acknowledges that Handley was required to comply with well-established precedent.

COBB, Judge,

dissenting.

Brian Handley discovered at the sentencing hearing that followed his entry of blind guilty pleas that the State had violated Rule 16, Ala. R.Crim. P., by failing to disclose a portion of an oral statement he allegedly made to a police officer. The majority holds that Handley’s objection to the officer’s testimony about the statement was untimely because Handley did not object until after he cross-examined the officer about the officer’s failure to include this portion of the statement in his written report. Under the circumstances of this case, I disagree with the majority’s determination that the objection to the Rule 16 violation was untimely. This Court has stated:

“A trial court should be informed of a party’s failure to comply with discovery procedures as soon as the aggrieved party is aware of the non-compliance. At a minimum, the aggrieved party must object to the undisclosed evidence at the time that evidence is offered and must state the specific grounds for the objection, i.e., that the offending party failed to comply with the discovery order or some other aspect of Rule 16. See Roberson v. State, 595 So.2d 1310, 1316 (Miss.1992); State v. Moore, 731 S.W.2d 351, 353 (Mo.App.1987). The requirement of a timely objection simply gives the trial court the opportunity to take corrective action where such action is warranted, see State v. Willis, 438 So.2d 605, 613 (La.App.1983), and is in keeping with standard trial procedure and evi-dentiary rules.”

Pettway v. State, 607 So.2d 325, 331 (Ala.Crim.App.1992).

The discovery violation was revealed during a sentencing hearing held before the trial court; no jury was present. Defense counsel objected to the officer’s failure to disclose Handley’s entire oral statement while the officer was still on the witness stand. Defense counsel did not delay in making the objection. Rather, he asked the officer three questions to verify that the portion of the statement he testified to on direct examination was not, in fact, in his written report. Immediately after defense counsel confirmed that the portion of the statement the officer testified to had not been disclosed to him, he informed the court of the discovery violation and moved to have that portion of the testimony struck from the record. The timing of the objection afforded the trial court the opportunity to take corrective action, particularly in light of the fact that no jury was present and the hearing was held before the court. To hold that this objection did not preserve the issue for review elevates form over substance. The issue was preserved for review, and it should have been addressed.

Therefore, I dissent.  