Gaines v. State, No. 4-783A234

• Docket Nº: No. 4-783A234
• Citation: 456 N.E.2d 1058
• Case Date: December 12, 1983
• Court: Court of Appeals of Indiana

Page 1058

456 N.E.2d 1058 Regina GAINES, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 4-783A234. Court of Appeals of Indiana,
Fourth District. Dec. 12, 1983.

Page 1059

Thomas D. Ryan, East Chicago, for appellant-defendant.

Linley E. Pearson, Atty. Gen. of Ind., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

CONOVER, Presiding Judge.

Regina Gaines (Gaines) appeals her conviction by a jury of dealing in a Schedule II controlled substance, cocaine. Ind.Code 35-48-4-1, 35-48-2-6(b)(4).

We affirm.

ISSUE

This appeal presents a single issue for review: Whether the trial court erred in refusing to declare a mistrial.

FACTS

Working under cover, Officer Candiano (Candiano) became acquainted with Gaines. On February 16, 1982, Candiano accompanied Gaines to her uncle's home. There Candiano and Gaines visited a friend of Gaines, who sold Candiano a small amount of cocaine.

Immediately prior to trial, the court granted Gaines's motion in limine to exclude evidence of all other purchases of drugs other than the ones alleged February 16.

During the State's direct examination, Candiano stated he and Gaines previously had made other purchases. Gaines moved for a mistrial, which was denied.

Later, in argument over an objection during the State's cross-examination of Gaines, the prosecutor stated he was attempting to show her entire family was involved with selling drugs. Defense counsel again moved for a mistrial, which was denied.

The colloquies which resulted in these objections are set out during the discussion below.

DISCUSSION AND DECISION

I.

During the State's examination of Candiano, the following exchange occurred:

Q What were the plans formulated?

A That he would follow me, that when I met her [Gaines] we would probably go get some coke because we had done it in the past.

Q And you--

BY MR. JABLONSKI: I'm going to make an objection at this point, Your Honor, for the reason that that answer is in violation of the Court's Motion in Limine and is suggestive of other crimes not at bar, and I move for a mistrial on that basis.

Page 1060

Gaines raises several interrelated contentions, each saying in substance the trial court should have declared a mistrial because the officer stated he and Gaines "would probably go get some coke because we had done it in the past." Although Gaines's brief is not entirely clear, we read it as claiming the statement violated the trial court's order in limine, its prejudicial effect outweighed its probative value, and the prosecutor committed misconduct by not advising the witness of the order in limine.

A. Violation of Order in Limine

We note initially the granting or denial of a mistrial is a matter within the sound discretion of the trial court, and this court will reverse only where there is clear error in the trial court's ruling. See, Brown v. State, (1981) Ind., 417 N.E.2d 333, 338. Moreover, admission of evidence also is generally committed to the sound discretion of the trial court. We will reverse only upon a showing such discretion has been manifestly abused, and the complaining party has been denied a fair trial. See, Napier v. State, (1983) Ind., 445 N.E.2d 1361, 1364.

The question of whether the trial court can admit evidence barred by its prior order in limine is one of first impression in this state. Motions in limine first were explicitly recognized by our courts in Burrus v. Silhavy, (1973) 155 Ind.App. 558, 293 N.E.2d 794, 63 A.L.R.3d 304. Judge Staton pointed out the authority of the trial court to entertain a motion in limine "emanates from the inherent power of the trial court to exclude or admit evidence in the furtherance of its fundamental constitutional purpose which is the administration of justice." Id., 155 Ind.App. at 563, 293 N.E.2d at 797, 63 A.L.R.3d at 308.

Thus, enforcement of an order in limine is a matter for the trial court's discretion, stemming from its authority to control the admission of evidence. As Justice DeBruler said,

... it is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of evidence as was sought by appellant, but is rather to prevent the proponent of potentially prejudicial matter from displaying it to the jury, making statements about it before the jury, or presenting the matter to a jury in any manner until the trial court has ruled upon its admissibility in the context of the trial itself. (Citations omitted and concluding emphasis supplied.)

Lagenour v. State, (1978) 268 Ind. 441, 450, 376 N.E.2d 475, 481.

Therefore, no error results from a trial court's admission of evidence in violation of its order in limine if the evidence is otherwise admissible in the context of the particular trial. For reasons discussed in section B, infra, the evidence was admissible.

However, in cases where a particular witness's testimony may encroach an order in limine, the better practice is to proceed through the sensitive part of the testimony outside the presence of the jury. Orders in limine serve to prevent error and expedite litigation. Moreover, deliberate violations of orders in limine by counsel to introduce evidence which prejudices opposing parties may be grounds for a mistrial. Nevertheless, where the failure to enforce orders in limine does not result in the erroneous admission of evidence, there is no reversible error.

B. Admissibility

Gaines also argues a mistrial should have been declared because the officer's statement introduced irrelevant, highly prejudicial evidence. We disagree.

Initially, however, we disagree with the State's reliance on Townsend v. State, (1980) Ind.App., 418 N.E.2d 554 cert. den. (1982) 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853. Even though Gaines had not yet raised the defense of entrapment, the State argues Townsend supports admission of the officer's testimony on the basis Gaines subsequently did raise the entrapment defense. A close reading of Townsend, however, does not support this position.

Page 1061

Townsend involved appeals from delivery of a controlled substance and conspiracy. The trial court issued a pre-trial order stating the State would have to rebut evidence of entrapment by showing predisposition. The State apparently presented predisposition evidence in its case-in-chief, after Townsend formally stated he would not rely on the defense of entrapment.

This court held reversible error only would occur "if otherwise inadmissible predisposition evidence had been admitted over [the defendant's] objection." Id., 418 N.E.2d at 559 (emphasis supplied). In regard to the State prematurely presenting evidence on entrapment in its case in chief, Judge Sullivan wrote:

The position advanced ... that the State must rebut entrapment every time police inducement is shown by its evidence even though, as here, the defendant made it clear he was not relying on the defense, is highly problematic. From the defendant's viewpoint, it could be used to effectively...