State v. Askew

Decision Date18 July 1984
Citation455 So.2d 36
PartiesSTATE of Alabama and Sylvia Tolbert v. Christopher ASKEW. Civ. 4267.
CourtAlabama Court of Civil Appeals

Mary Lee Stapp and William F. Prendergast, Asst. Attys. Gen., and Lois Brasfield, Staff Atty., Montgomery, for appellants.

George K. Elbrecht, Monroeville, for appellee.

HOLMES, Judge.

This is a paternity case.

The mother filed a paternity complaint in the District Court of Conecuh County naming the appellee, Askew, as the father. Thereafter, Askew, without the assistance of a lawyer, filed a motion in district court requesting that human leucocyte antigen tests (HLA blood tests) be performed on the mother, child, and himself. The district court granted Askew's motion and the HLA tests were performed. The results of the tests indicated that the probability of paternity was 95.7%. The tests did not exclude Askew as the father. Subsequently, the district court found that Askew was the father. Askew then appealed to the circuit court for a trial de novo.

One week before trial in circuit court, Askew, now represented by counsel, filed a motion in limine to suppress the results of the HLA blood tests. Askew contended at trial, and contends on appeal, that the results of the HLA tests should not be allowed in evidence because section 26-12-5, Ala.Code (1975), permits the admission of blood tests only in cases where the tests definitely exclude the defendant as the father. 1

The circuit court granted Askew's motion in limine. The case was tried by a jury and Askew was found not to be the father of the child. The state and the mother now appeal.

The only issue raised on appeal is whether the trial court erred in granting Askew's motion in limine. Considering the circumstances of this case, we cannot say the trial court erred in granting the motion.

The record before this court does not contain a transcript of the trial. This court cannot put the trial court in error without engaging in speculation as to what occurred at the trial level.

We are guided by the longstanding rule that any errors committed by the trial court must be affirmatively demonstrated by the record filed in this court, and if it does not disclose the facts upon which an alleged error is based, we will not consider that issue. Teng v. Diners Club, Inc., 424 So.2d 629 (Ala.Civ.App.1982). This rule is based upon the fundamental proposition that an appellate court will not presume error and will affirm the judgment appealed from if supported on any valid legal ground. Tucker v. Nichols, 431 So.2d 1263 (Ala.1983).

The situation in this instance is further compounded by the very nature of motions in limine. The trial court has broad discretion in evidentiary matters. See Louisville & N.R.R. v. Phillips, 293 Ala. 713, 310 So.2d 194 (1975).

"In keeping with the vesting of broad discretion in the trial court in this area, it is generally held that the granting of a motion in limine can never be reversible error. The non-moving party may repeat at trial, preferably out of the hearing of the jury, his request for permission to prove the contested...

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24 cases
  • Wynn v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 9, 2016
    ...in limine:"We recognize that the trial court has broad discretion in evidentiary matters. The general rule was stated in State v. Askew, 455 So.2d 36 (Ala.Civ.App.1984), citing C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala. L. Rev. 1 (1981), as follows:"......
  • Morris v. Morris
    • United States
    • Alabama Court of Civil Appeals
    • December 6, 2013
    ...motion in limine.’ ”Bush v. Alabama Farm Bureau Mut. Cas. Ins. Co., 576 So.2d 175, 177 (Ala.1991) (quoting State v. Askew, 455 So.2d 36, 37 (Ala.Civ.App.1984), citing in turn C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala. L.Rev. 1 (1981)). Although Matth......
  • Steeley v. City of Gadsden
    • United States
    • Alabama Court of Criminal Appeals
    • June 14, 1988
    ...motion in limine.' "Gamble, The Motion in Limine: "A Pretrial Procedure That Has Come of Age," 33 Ala.L.Rev. 1 (1981). State v.Askew, 455 So.2d 36, 37 (Ala.Civ.App.1984). As can be seen from the quoted portion of the record, the trial judge did not grant a prohibitive-absolute motion in lim......
  • Harrington v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 25, 2002
    ...limine: "`We recognize that the trial court has broad discretion in evidentiary matters. The general rule was stated in State v. Askew, 455 So.2d 36 (Ala. Civ.App.1984), citing C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala. L.Rev. 1 (1981), as "`"In keep......
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