State v. Austin, 10537-O-I

• Decision Date: 09 May 1983
• Docket Number: No. 10589-2-I,No. 10537-O-I,10537-O-I,10589-2-I
• Citation: 34 Wn.App. 625,662 P.2d 872
• Parties: STATE of Washington, Respondent, v. Joey Patrick AUSTIN, Appellant.
• Court: Washington Court of Appeals

Page 625

34 Wn.App. 625

662 P.2d 872

STATE of Washington, Respondent, v. Joey Patrick AUSTIN, Appellant.

No. 10537-O-I.

No. 10589-2-I.

Court of Appeals of Washington,

Division 1.

May 9, 1983.

Michael Trickey, Seattle and Will Roarty, Eastside Defender Assn., Bellevue (Appointed), for appellant.

Norman K. Maleng, King County Pros. Atty., Deborah Phillips, Deputy Pros. Atty., Seattle, for respondent.

CORBETT, Judge.

Defendant, Joey Patrick Austin, appeals his judgment and sentence for first degree robbery and revocation of his probation on a prior conviction for second degree robbery. The cases have been consolidated on appeal. We affirm.

The ticket-taker at a Garfield High School basketball game was robbed at gunpoint shortly after half-time. She told police her assailant was Joey Austin, whom she had known for several years. She said he was wearing a red shirt and black yachting cap and carrying a black gun with a long, square barrel. She identified the defendant as the robber from a photo montage and at trial. During expert cross examination, her identification was severely tested.

The defense was alibi. Two witnesses testified they were at the gym and did not see the defendant there. One of them saw an unidentified man, wearing a red sweatsuit and ski cap and carrying a bag, run out shortly after the robbery. The other testified that he saw a man in a red sweatsuit, and identified him by name. Three defense witnesses testified that the defendant was with them at a friend's house during the time the robbery was committed.

Defendant moved in limine to exclude evidence of his prior conviction for robbery under ER 609(a). Defense counsel stated "It is anticipated that Joey Austin will find it necessary to testify in his own defense ..." and implied that his testimony would concern his alibi. The trial court ruled the conviction would be admissible. Defendant did not testify at trial. On appeal, he has supplemented the record with an offer of proof as to what his testimony would have been and asserts that his failure to testify was a result of the adverse ruling on the motion in limine.

Error cannot be assigned to a trial court ruling denying a motion in limine to exclude evidence because the ruling is advisory and tentative. State v. Wilson, 29 Wash.App. 895, 899, 626 P.2d 998 (1981). The granting or denial of the motion is discretionary, State v. Morgan, 192 Wash. 425, 431, 73 P.2d 745 (1937); Fenimore v. Donald M. Drake Constr. Co., 87 Wash.2d 85, 91, 549 P.2d 483 (1976); Amend v. Bell, 89 Wash.2d 124, 130, 570 P.2d 138, 95 A.L.R.3d 225 (1977), as is the decision of when to rule on the motion. United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980); see State v. Evans, 96 Wash.2d 119, 123-24, 634 P.2d 845 (1981). The error, if any, is committed, not at the time of the ruling, but only when the evidence is improperly admitted over objection at trial. A majority of the courts which have considered the question require objection at trial to preserve the claimed error. See Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Alabama L.Rev. 1, 16 (1981).

The necessity for such a rule stems from the nature of evidentiary rulings. While the admissibility of some types of evidence may be determined before trial, most evidence problems are best resolved in the atmosphere and context of the trial. In many instances, the determination of a matter's admissibility cannot be made before the point in the trial when its relationship to the theory of the case and to the other evidence becomes apparent. Gamble, supra at 13.

Often, as evidence is developed at trial, possibly prejudicial evidence may, in the light of other evidence, be seen to be more probative than prejudicial. In such a situation, the trial court is better prepared to rule on admissibility when it has heard other evidence in the case. Any danger of prejudice can be avoided by a requirement that the offer of the evidence be made outside the presence of the jury.

Comment, Motions in Limine in Washington, 9 Gonzaga L.Rev. 780, 788 (1974). Thus, the proper function of a motion in limine is not to obtain a final ruling upon the admissibility of evidence. Rather, it is designed

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.

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

The predicate of the motion is, in this instance, that the defendant will take the stand and thus be subject to impeachment. Among the factors which the trial court must consider in deciding whether impeachment by the prior conviction is appropriate are the importance that the jury hear the defendant's account of events and the centrality of the credibility issue. State v. Alexis, 95 Wash.2d 15, 19, 621 P.2d 1269 (1980). Neither of these factors can be properly evaluated until the evidence has been developed at trial. This illustrates why rulings in limine can rarely balance the probative and prejudicial values of a piece of evidence.

If the defendant does not take the stand, he must make an offer of proof to demonstrate that he is prejudiced by the ruling.

An offer of proof is especially important where the issue is admissibility of a prior conviction for purposes of impeachment. An offer not only aids appellate review and self-evaluation by the trial court, but is also necessary for the trial court to evaluate the importance of the defendant's testimony, one of the considerations enumerated in Alexis.

(Citation omitted). State v. Pam, 98 Wash.2d 748, 763, 659 P.2d 454 (1983) (Utter, J., concurring). It is of no assistance to the trial judge to supplement the record on appeal by an offer of proof. Defendant has not preserved this assignment of error for appeal. Cf. State v. Hebert, 33 Wash.App. 512, 516, 656 P.2d 1106 (1982). ¹

Defendant also assigns error to the denial of his motion for a new trial. Prior to trial, defense counsel knew of another person who was at the game and possibly involved in the robbery. Subsequent to conviction, defense counsel learned that this person had been stopped by police within minutes of the robbery, approximately four blocks from the robbery scene. He generally matched the physical description of the robbery suspect and was wearing a red jogging suit, a red baseball cap, and white sneakers. He had a gun similar to the one described by the victim. After the defendant's trial, the victim was shown a montage containing the photograph of this other person, and she indicated that he was not the person who had robbed her. Defendant's motion for a new trial was based on the newly discovered evidence of the arrest and the gun.

The criteria for granting a new trial based on newly discovered evidence are

whether the evidence (1) will probably change the result if a new trial is granted; (2) has been discovered since trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material to the issues and admissible; and (5) is not merely cumulative or impeaching.

State v. Barry, 25 Wash.App. 751, 757, 611 P.2d 1262 (1980); see CrR 7.6(a)(3). The absence of any of these five factors is grounds for denying the motion. State v. Williams, 96 Wash.2d 215, 223, 634 P.2d 868 (1981). Reversal is warranted only upon a showing that the court has manifestly abused its discretion. State v. Barry, supra. An abuse of discretion is established only if the court acted on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971). Testimony at trial indicated that at least one person other than the arrestee was wearing a red sweatsuit at the game. The probability of a different result based on the evidence of the arrest is, therefore, questionable. Whether defense counsel exercised due diligence in obtaining the information was sharply disputed. Given the discretionary nature of the ruling, we decline to substitute our judgment for that of the trial court.

Defendant also asserts that he was denied due process by the State's failure to inform him of the arrest prior to trial. The record before us does not indicate that any discovery request for this information was made. Absent such a request, due process does not require a new trial. See United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976).

There being no error in entry of the judgment and sentence for first degree robbery, the court properly revoked probation on the prior conviction.

Affirmed.

ANDERSEN, C.J., concurs.

SCHOLFIELD, Judge (concurring).

The majority opinion reaches the correct result, but I cannot subscribe to the statement in the opinion that error cannot be assigned to a trial court's ruling on a motion in limine.

State v. Wilson, 29 Wash.App. 895, 899, 626 P.2d 998 (1981), relied upon by the majority, states categorically:

No error can be assigned to a trial court ruling on a motion in limine. Until the objection is timely made in the course of trial and the predicate for the ruling is no longer hypothetical, the ruling in limine is advisory, tentative and not the basis of error.

In Wilson, defendant moved to exclude evidence of prior convictions for impeachment purposes. The court denied his motion in limine and he testified to the convictions on direct examination. The court held the only way Wilson could preserve the error was to testify and have the prior convictions brought out during cross examination. Wilson apparently allows for no exceptions.

The rule in State v. Wilson is unnecessary to fair and orderly trial procedure, yet denies a defendant any opportunity, after his motion to exclude the prior convictions has been denied,...