Donley v. State, 95-1879
| Decision Date | 04 June 1997 |
| Docket Number | No. 95-1879,95-1879 |
| Citation | 694 So.2d 149 |
| Parties | 22 Fla. L. Weekly D1387 Eric D. DONLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
We affirm appellant Eric Donley's conviction of manslaughter with a firearm.
Donley was originally charged with one count of second degree murder. The charge was based on a street altercation in which Donley shot the victim, Tyrone Weems. Donley contended that the shooting was in self defense. He claimed that Weems was in a gang whose members dealt drugs and routinely carried guns; that gang members had threatened Donley with physical harm in the past; that gang members had followed Donley and a friend in an intimidating manner; that the victim and another gang member had said they were looking for Donley while waiving pistols in the air; and that when taken together, the sum of the gang members' prior conduct caused Donley to reasonably fear all members of the gang.
After Donley shot Weems, he ran from the scene. Under Donley's version of the facts, two gang members who were in the vicinity at the time of the shooting began to chase him. One of these gang members, Randall Adkins, retrieved a shotgun. Within minutes of the Weems shooting, Adkins fired a shotgun through the door of Donley's apartment. Donley hid out in the woods and turned himself into the police the next day.
Prior to trial, the State moved in limine to exclude evidence about the Adkins shooting, unless Adkins took the stand as a witness, in which case the state conceded that the incident would be proper impeachment evidence. The trial court granted the motion before trial, but indicated that he would allow the defendant to proffer testimony outside the presence of the jury concerning the Adkins shooting and reconsider his ruling at the time of any such proffer.
The defense never proffered any direct testimony concerning the Adkins shooting. The crime scene detective who responded after the fact observed a shotgun blast in the door, but he had no firsthand knowledge of when the damage was done or who was responsible for it. On several other occasions, defense counsel declined the opportunity to proffer testimony about the Adkins shooting.
Where a judge has tentatively granted a motion in limine concerning an area of evidence, but has indicated a willingness to reconsider the ruling after hearing a proffer of the actual testimony outside the jury's presence during trial, it is necessary to proffer the testimony sought to be introduced in order to preserve the issue for appeal. A judge's pretrial ruling on a motion in limine is "entirely tentative." State v. Zenobia, 614 So.2d 1139 (Fla. 4th DCA 1993). Such a ruling may be based on an incomplete oral proffer or on the trial court's limited understanding of the issues in the case, not...
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