State v. Grubb

• Decision Date: 26 December 1986
• Docket Number: No. 86-168,86-168
• Citation: 28 OBR 285,28 Ohio St.3d 199,503 N.E.2d 142
• Parties: , 28 O.B.R. 285 The STATE of Ohio, Appellee, v. GRUBB, Appellant.
• Court: Ohio Supreme Court

Page 199

28 Ohio St.3d 199

503 N.E.2d 142, 28 O.B.R. 285

The STATE of Ohio, Appellee, v. GRUBB, Appellant.

No. 86-168.

Supreme Court of Ohio.

Dec. 26, 1986.

Syllabus by the Court

1. The effect of the granting of a motion in limine in favor of the state in a criminal proceeding is to temporarily prohibit the defendant from making reference to evidence which is the subject of the motion.

2. At trial it is incumbent upon a defendant, who has been temporarily restricted from introducing evidence by virtue of a motion in limine, to seek the introduction of the evidence by proffer or otherwise in order to enable the court to make a final determination as to its admissibility and to preserve any objection on the record for purposes of appeal. (State v. Gilmore [1986], 28 Ohio St.3d 190, 503 N.E.2d 147, applied.)

On March 22, 1984, appellant, Jimmy L. Grubb, was indicted by the Lawrence County Grand Jury on one count of carrying a concealed weapon and one count of felonious assault. The indictment stemmed from events occurring on March 2, 1984. On that day, at approximately 4:30 a.m., Captain Gary Deeds of the Ironton Police Department received a telephone call reporting a domestic disturbance. After receiving the call, Deeds radioed Officer Ashley Tordiff, who was dispatched to the scene. In the meantime, Deeds also proceeded to the scene to provide backup support.

Officer Tordiff was the first to arrive and observed appellant leaving his mother-in-law's residence where his estranged wife and minor son were living. Tordiff testified that appellant appeared to be intoxicated, and that he was carrying his son under one arm. The child's mother and grandmother were in pursuit, each screaming to Tordiff not to allow appellant to take the child. At this juncture, Deeds arrived and requested that appellant release the child. After refusing this request appellant became argumentative, was placed under arrest and eventually threatened to shoot the officers. Upon making the threat, appellant placed his right hand into his pants pocket. Officer Tordiff immediately clasped appellant's hand and, simultaneously, Deeds drew his service revolver and aimed it at appellant. The child was then released, and Tordiff proceeded to remove a .38 caliber handgun from appellant's pocket.

Once appellant was placed under arrest, he was transported to the Ironton Police Station. During booking procedures an altercation apparently occurred between appellant and the police officers when appellant refused to surrender a portion of his personal belongings. A struggle ensued and physical force was utilized by the officers to regain control of appellant.

On April 18, 1984, the state filed a motion in limine to prevent testimony in the upcoming trial on the subject of the altercation between the officers and appellant at the police station. Apparently, it was the state's position that testimony concerning the incident should be excluded because its probative value was outweighed by the danger of confusing or misleading the jury on the issues in the case. Conversely, appellant opposed the motion presumably on the basis that the officers' conduct at the station might impact upon their credibility as witnesses for the state's case-in-chief.

On April 20, 1984, three days prior to trial, the court conducted an oral hearing, after which the motion in limine was granted. At that hearing, appellant proffered that two witnesses would have testified that he was not struck by the officers during an altercation inside the police station, but rather was struck as he was exiting the police cruiser while he remained handcuffed. At trial, appellant did not proffer, or in any way seek to place on the record, the testimony of these prospective witnesses.

Appellant's trial commenced April 23, 1984, and resulted in an acquittal on the felonious assault charge and a finding of guilty on the charge of carrying a concealed weapon. On appeal, the court of appeals affirmed the conviction.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Richard B. Meyers, Prosecuting Atty., for appellee.

Kimble, Stevens, Young, Clark, Spears & Rodeheffer and Roger L. Clark, Portsmouth, for appellant.

WRIGHT, Justice.

Although appellant seeks a determination of what he considers the propriety of the trial court's exclusion of the police station incident, the first issue presented for review is whether appellant preserved the record on appeal when, despite the allowance of the state's motion in limine, no evidence was proffered at trial in relation to that incident. For the reasons to follow we conclude that when appellant failed to present in any manner the evidence, which he claims was relevant pursuant to Evid.R. 401, he failed to preserve the claimed error and waived his right to seek review of the alleged preclusion on appeal.

Our inquiry commences with an examination of the purpose and effect of a motion in limine. A "motion in limine " is defined in Black's Law Dictionary (5 Ed.1979) 914, as "[a] written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements * * * to avoid injection into trial of matters which are irrelevant, inadmissible and prejudicial[,] and granting of [the] motion is not a ruling on evidence and, where properly drawn, granting of [the] motion cannot be error. Redding v. Ferguson, Tex.Civ.App. [1973], 501 S.W.2d 717, 724." It is noteworthy that the rationale of the Redding case, upon which Black's Law Dictionary predicates its definition, has previously been adopted by this court. See State v. Maurer (1984), 15 Ohio St.3d 239, 259, 473 N.E.2d 768.

As was recognized in Riverside Methodist Hosp. Assn. v. Guthrie (1982), 3 Ohio App.3d 308, 310, 444 N.E.2d 1358, although the motion receives widespread use in Ohio courts, " * * * it is frequently misused and misunderstood. * * * " In State v. Spahr (1976), 47 Ohio App.2d 221, 353 N.E.2d 624 , the court reasoned in paragraph one of the syllabus:

"As related to trial, a motion in limine is a precautionary request, directed to the inherent discretion of the trial judge, to limit the examination of witnesses by opposing counsel in a specified area until its admissibility is determined by the court outside the presence of the jury." The power to grant the motion is not conferred by rule or statute, but instead lies within the inherent power and discretion of a trial court to control its proceedings. Id. at 224, 353 N.E.2d 624. Riverside Methodist Hosp. Assn. v. Guthrie, supra, 3 Ohio App. at 310, 444 N.E.2d 1358. See, also, Evid.R. 103(A) and 611(A). The function of the motion as a precautionary instruction is to avoid error, prejudice, and possibly a mistrial by prohibiting opposing counsel from raising or making reference to an evidentiary issue until the trial court is better able to rule upon its admissibility outside the presence of a jury once the trial has commenced. In this sense, use of the motion serves the interests of judicial economy, as well as the interests of counsel and the parties, by helping to reduce the possibility of the injection of error or prejudice into the proceedings. Accord Annotation (1975), 63 A.L.R.3d 311.

One commentator has described the use of a motion in limine in Ohio as follows ¹:

" * * * [I]t may be used as a means of raising objection to an area of inquiry to prevent prejudicial questions and statements until the admissibility of the questionable evidence can be determined during the course of the trial. It is a precautionary request, directed to the inherent discretion of the trial judge, to limit the examination of witnesses by opposing counsel in a specified area until its admissibility is determined by the court outside of the presence of the jury. The sustaining of a motion in limine does not determine the admissibility of the evidence to which it is directed. Rather it is only a preliminary interlocutory order precluding questions being asked in a certain area until the court can determine from the total circumstances of the case whether the evidence would be admissible. * * * " (Emphasis added.) Accord State v. Leslie (1984), 14 Ohio App.3d 343, 471 N.E.2d 503.

Thus, a motion in limine, if granted, is a tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue. In virtually all circumstances finality does not attach when the motion is granted. Therefore, should circumstances subsequently develop at trial, the trial court is certainly at liberty " * * * to consider the admissibility of the disputed evidence in its actual context." State v. White (1982), 6 Ohio App.3d 1, at 4, 451 N.E.2d 533.

An exception to the aforementioned rule is contained in the recent case of State v. Davidson (1985), 17 Ohio St.3d 132, 477 N.E.2d 1141. Therein, a motion in limine was granted at the defendant's request prohibiting the state from, inter alia, introducing any testimony or exhibits on the subject of " 'alcohol and/or the consumption of alcohol and/or photographs reflecting or depicting the presence of alcohol in or about the scene of...