California, United States of America
The following excerpt is from People v. Hart, G039836 (Cal. App. 8/31/2009), G039836 (Cal. App. 2009):
The argument was forfeited by defendant's failure to either object to the questioning forming the basis of his prosecutorial misconduct claim or request an admonition. "`In order to preserve a claim of [prosecutorial] misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]' [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 359.) But where the court immediately overrules an objection, the "lack of a request for an admonition in connection with the objection does not preclude assertion of the misconduct on appeal . . . . [Citation.]" (People v. Lindsey (1988) 205 Cal.App.3d 112, 116, fn. 1.)
Defendant concedes his "counsel failed to object specifically to the prosecutor['s] `were they lying' questions regarding Hernandes" but claims an objection would have been futile. He cites instances where the court overruled his other evidentiary objections. But none of these involved "were they lying" questions and do not show an objection to such questions would have been futile. In fact, when defense counsel did object to a "were they lying" question with respect to Ham, the court sustained the objection. Defendant failed to meet his burden of demonstrating futility. (People v. Panah (2005) 35 Cal.4th 395, 462.)
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