State v. Evans, 86,554

• Decision Date: 24 January 2003
• Docket Number: No. 86,554,86,554
• Citation: 275 Kan. 95,62 P.3d 220
• Parties: STATE OF KANSAS, Appellee, v. LARRY G. EVANS, Appellant.
• Court: Kansas Supreme Court

275 Kan. 95

62 P.3d 220

STATE OF KANSAS, Appellee, v. LARRY G. EVANS, Appellant.

No. 86,554

Supreme Court of Kansas

Opinion filed January 24, 2003.

Rebecca E. Woodman, assistant appellate defender, argued the cause, and Kathryn B. Wall, assistant appellate defender, and Steven R. Zinn, deputy appellate defender, were with her on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

This case comes before the court on a petition for review. Defendant Larry G. Evans claims that (1) the Court of Appeals, in affirming his conviction for voluntary manslaughter, erred in determining that an alleged erroneous exclusion of evidence was not properly preserved for appeal; (2) the trial court erred in excluding evidence supporting his theory of defense; and (3) the Kansas third-party evidence rule is unconstitutional.

Michael Prince, the victim, arrived at a house in Wichita just shortly after Larry Evans, Andrew Reed, and Majeeda Williams. Although accounts as to what occurred differed, the majority of the witnesses stated that while Prince was talking with Evans and Reed, the three began to argue. During the argument, Prince sprayed Evans and Reed with mace. Seconds later, a single shot was fired. Prince was fatally wounded in the neck just outside the doorway to the house.

In mid-December 1999, nearly a month after the shooting, Prince's body was discovered by hunters. Following an investigation, Evans was charged with the first-degree murder of Prince. On June 16, 2000, the State filed a pretrial motion in limine to exclude the defense from offering circumstantial evidence that another person had shot Prince. The motion was argued at a hearing held on that same day.

In support of its motion in limine, the State argued that because it was presenting direct evidence that Evans was the shooter, Evans was prevented from presenting uncorroborated circumstantial evidence of witnesses that disputed the State's direct evidence. The State asserted that it had two eyewitnesses who observed Evans shoot Prince. The State hypothesized that the defense would attempt to put forth evidence of other witnesses who saw Reed with the gun immediately after the fatal shot was fired but who had not observed Reed shoot Prince with the gun. The State contended that circumstantial evidence that another had committed the murder was inadmissible absent corroborating evidence, stating that Evans had corroborating evidence if that evidence was not excluded as hearsay. The hearsay evidence the State was referring to was the testimony of a defense witness who would testify that after the shooting Reed admitted that he shot Prince and that he dumped Prince's body in the woods.

Defense counsel argued against the motion in limine, asserting that the circumstantial evidence the State sought to exclude was proper evidence for the jury to consider and stating:

"There will be testimony [by the witnesses] that immediately after the shot was heard, [Reed] was in possession of a firearm, had in his hand a firearm, and these same witnesses will testify that they did not see my client with a firearm.

"There will be other witnesses that will relate that the confrontation, the discussion, whatever, that occurred between three people, my client, Mr. Reed, and the victim, they'll confirm that. Mr. Reed will deny being involved in anything."

Defense counsel pointed out that the testimony of these witnesses was corroborated by Reed's later admission to others that he (Reed) was the shooter. Defense counsel then asserted that the veracity and reliability of the State's eyewitnesses was questionable, stating that there were witnesses who would testify that it was not possible for the State's two witnesses to have seen Evans shoot Prince because one of the State's witnesses was not present when the shooting occurred and the other witness was asleep. In response to the trial judge's question, however, defense counsel was unable to confirm whether there would be a defense witness to testify that he or she actually saw Reed pull the trigger. The trial judge reserved ruling on the State's motion in limine.

On the first day of trial, the trial judge noted that he had reserved ruling on the State's motion in limine and that the judge and the attorneys had previously had an off-the-record discussion of the matter. The judge stated:

"[THE COURT:] The Court advised the parties that it was sustaining the motion. It's sustaining the motion conditioned upon the State producing testimony that this defendant was observed shooting at the victim. Is that clear?

"MR. JENNINGS [Prosecuting Attorney]: Yes, Your Honor. It's clear to me.

"MR. TOUSLEY [Defense counsel]: Yes, Your Honor.

"THE COURT: All right. Any questions about that?

"MR. JENNINGS: No, sir.

"THE COURT: Mr. Tousley?

"MR. TOUSLEY: No. I think we—from what we talked about, I understand it—

"THE COURT: All right."

At trial, Evans testified that Prince sprayed mace on both Evans and Reed. He testified that seconds later, while trying to recover from being maced, he heard a shot. When Evans looked up, he saw Reed pulling a gun down to his side. Thomas Wilson testified that Reed later admitted to him and to others that he had shot Prince and had dumped his body. The State's rebuttal witnesses denied hearing Reed make such an admission.

After a 4-day jury trial, Evans was convicted of voluntary manslaughter and sentenced to a term of 92 months' imprisonment. Evans appealed, claiming that the trial judge erred in excluding circumstantial evidence that a third party had committed the murder and that the Kansas third-party evidence rule was unconstitutional. The Court of Appeals upheld Evans' conviction in an unpublished decision, State v. Evans, Case No. 86,554, filed July 12, 2002. The court held that Evans' counsel had failed to sufficiently proffer and properly preserve for appeal the issue of whether the trial court's exclusion of circumstantial evidence that another had killed the victim was erroneous and suggested that Evans file a K.S.A. 60-1507 motion.

In his petition for review, Evans contends that the proffer to the district court was sufficient to preserve the issue for appeal. This court granted Evans' petition for review pursuant to K.S.A. 20-3018(b).

Was the Proffer Sufficient?

We note that a verdict or finding shall not be set aside nor shall the judgment or decision based thereon be reversed by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge or indicated the substance of the expected evidence by questions indicating the desired answers. See K.S.A. 60-405.

When a motion in limine has been granted, the party being limited by the motion has the responsibility of proffering sufficient evidence to the trial court in order to preserve the issue for appeal. State v. Beard, 273 Kan. 789, Syl. ¶ 7, 46 P.3d 1185 (2002); Brunett v. Albrecht, 248 Kan. 634, 640, 810 P.2d 276 (1991). The purpose of a proffer is to make an adequate record of the evidence to be introduced. See Carrick v. McFadden, 216 Kan. 683, 688, 533 P.2d 1249 (1975); see also State v. Deal, 271 Kan. 483, 490, 23 P.3d 840 (2001) (purpose of making a proffer is to allow trial court to make evidentiary decision based on substance of testimony).

The proponent of excluded evidence has the duty of making known the "substance" of the expected evidence in a proffer. State v. Gibbons, 256 Kan. 951, 959, 889 P.2d 772 (1995). A formal offer of proof in question and answer form is not required if an adequate record is made in a manner that discloses the evidence sought to be introduced. Carrick, 216 Kan. 683, Syl. ¶ 3. See State v. Mays, 254 Kan. 479, 486, 866 P.2d 1037 (1994) (no formal proffer made on each piece of excluded evidence being challenged; however, court through sidebar conferences and statement of defendant was aware of information to be elicited and reasons why information was important to defense); McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 770, 667 P.2d 289 (1983) (no formal proffer was made; however, argument on motion in limine and in-court dialogue fully set out appellant's position). Failure to make a proffer of excluded evidence precludes appellate review because there is no basis to consider whether the trial court abused its discretion. See Deal, 271 Kan. at 490; Lumley v. State, 29 Kan. App. 2d 911, 34 P.3d 467 (2001),rev. denied 273 Kan. 1036 (2002).

The Court of Appeals concluded that the proffer of the excluded evidence in this case was not sufficient and stated:

"At the time the [State's] original motion [in limine] was heard, the trial court asked defendant's counsel if he was going to be able to present testimony other than circumstantial evidence that witnesses saw Reed with a weapon. Defense counsel advised the trial court that he would have to consult with his client to see whether such evidence was available. At this point, the trial court reserved ruling on the motion until further argument.

"During the trial, and for reasons of which we are not aware, the trial court noted it held a further discussion regarding the motion in limine off the record. We have no idea what took place at that discussion. However, after the discussion, the court noted it was sustaining the State's motion conditioned upon the State producing direct testimony that defendant was observed shooting Prince. The trial court inquired of defense counsel if he understood the ruling, and counsel stated that he did understand it and had no questions. The record reveals no objection from defense counsel, nor does it show a proper proffer of the evidence. We conclude

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