Despite what you read below, I assure you, the objection was preserved (don’t believe me? check out the end).
Powell was charged with breaking into his girlfriend’s home. The trial court allowed evidence that he had ingested meth to show his mental state under 404(b). The court of appeals reversed. Unfortunately, Powell’s counsel didn’t object to the testimony, and later only objected to questions of witness credibility.
Defense counsel objected to the victims testimony of drugs:
I don’t want the word drug used anywhere in this trial. It’s not a trial about drugs and I’d prefer — my problem is you say methamphetamines and drugs, he’s going to jail. I don’t want that to happen. I — it’s not a trial about drugs. I want to keep that out in particular.
However, defense counsel acquiesced regarding a witnesses testimony of drug use:
And this Greg guy, I guess, can bring out that testimony. If in fact he was doing drugs with the Defendant the night before, he can bring . . . that stuff out, I imagine. But the things that Greg said was he was — he told me he was going to get his son.
The guilty verdict was affirmed (and the court of appeals reversed). The concurrence (of 3) felt it was error to admit it under 404(b), but that error was harmless:
Rather, at the beginning of the colloquy over the admission of ER 404(b) evidence Powell’s counsel plainly objected to the admission of any drug evidence based on its potential for prejudice.
The dissent (of 2) skirted around any discussion of harmless error, instead focusing on the preservation of the objection and on a lack of expert testimony that, though amphetamine was ingested, it had any affect on state of mind.
And if you’re keeping track…this means the objection was found to have been preserved (5 votes preserved to 4 votes not preserved).
