State v. Madison

• Decision Date: 04 March 1981
• Docket Number: No. B51-426,B51-426
• Citation: 624 P.2d 599,290 Or. 573
• Parties: STATE of Oregon, Respondent, v. Elbert Eldon MADISON, Petitioner. ; CA 16632; SC 27217.
• Court: Oregon Supreme Court

Page 599

624 P.2d 599

290 Or. 573

STATE of Oregon, Respondent, v. Elbert Eldon MADISON, Petitioner.

No. B51-426; CA 16632; SC 27217.

Supreme Court of Oregon.

Argued and Submitted in Eugene Nov. 7, 1980.

Decided March 4, 1981.

John Halpern, Jr., Eugene, argued the cause and filed the brief for petitioner.

James E. Mountain, Jr., Salem, argued the cause for respondent. On the brief were James M. Brown, Atty. Gen., Walter L. Barrie, Sol. Gen., and Christian W. Van Dyke, Asst. Atty. Gen., Salem.

Before TONGUE, P. J., and HOWELL, LENT, LINDE, PETERSON and TANZER, JJ. ^*

TONGUE, Justice.

Defendant was convicted of resisting arrest. ORS 162.315. On appeal he assigned as error the denial of his pretrial "motion in limine" to exclude testimony relating to events preceding his arrest on the ground that any relevance of such evidence was outweighed by its prejudice and that such testimony would also improperly introduce evidence of other crimes. The Court of Appeals affirmed per curiam, 47 Or.App. 3, 613 P.2d 110 (1980), citing State v. Hein, 31 Or.App. 147, 570 P.2d 82 (1977). We allowed defendant's petition for review.

This case presents two problems: (1) whether the denial of a "motion in limine" in a criminal case to exclude irrelevant or prejudicial evidence can provide the basis for an appeal and (2) if so, whether the testimony relating to events preceding defendant's arrest was improperly received.

1. Defendant's "motion in limine."

At the outset it should be noted that there has been considerable confusion about "motions in limine." It has been said that the use of "motions in limine" in criminal cases was encouraged by this court by a passing reference in Ingram v. Allen, 273 Or. 890, 891, 544 P.2d 167 (1975), to the filing in that case of a "motion in limine" asking that the jury make special findings in lieu of a general verdict. See Snouffer, Criminal Trial Procedure, § 1330 (Oct. 1980 Supp., Or.St.Bar CLE). This court also referred to objections to evidence by defendants in advance of trials in criminal cases in State v. Koennecke, 274 Or. 169, 172, 545 P.2d 127 (1976), in quoting from another case in another context. See also Anno. 63 A.L.R.3d 311.

The term "motion in limine" has been used as if it described a specific and recognized legal procedure. The use of Latin instead of English conveys such an impression. The words "in limine" simply mean preliminary ("at the threshold," Black's Law Dictionary). Defendant's motion in this case was an oral motion made on the day of trial, prior to the receipt of any evidence.

In response to a question from this court, the state contends that this court should not consider the merits of defendant's "motion in limine" because, having been made on the morning of trial, it was untimely and because the trial court was not required by ORS 135.037(3) to rule on it. ¹ Regardless of whether the court was required to rule, the court did so. The defendant moved the trial court for a ruling. The state did not object either to the timeliness of defendant's motion or to the authority of the trial court to make such a ruling. The court ruled on the merits of the motion contrary to the interests of the defendant. ² Thus, we conclude that under ORS 138.040, the defendant may properly assign the ruling as error because it is "a decision of the court in an intermediate order or proceeding." (ORS 138.040).

2. Probative value and prejudice.

Defendant's motion was to exclude:

"The events preceding the arrest of the defendant and the alleged resisting arrest committed by the defendant including the reason for the arrest of the defendant, statements made by the defendant prior to the time that he was informed he would be arrested, any proof that the defendant had beaten the woman with whom he resided, and any proof that there had been any type of domestic quarrel at the residence of the defendant on the date of his arrest * * *."

As previously stated, that motion was denied by a ruling that such evidence was admissible.

The evidence offered by the state based upon that ruling and of which defendant now complains can be summarized as follows:

A police officer testified that when he arrived at the house where defendant was living with a Mrs. Moreno and her children, apparently in response to a report of a family dispute, he was told by a child that defendant was beating the child's mother, Mrs. Moreno; that he then "contacted the victim," Mrs. Moreno, on the porch; that she had a cast on her leg, bruises on her head, hand, and arms, was clutching her abdomen and was complaining of pain; that as he and other officers approached the house the defendant was standing "above" Mrs. Moreno and said, "Here's the pricks," and also said that he had "hit her and threw her out, but that she'd be alright (sic)." Another officer also described Mrs. Moreno's condition in some detail, including the fact that she appeared to be in pain and was crying.

Defendant also complains of statements by the prosecuting attorney in his opening statement, to the effect that the police officers found defendant with a woman who had evidence of bruises, a cast on her leg, and was obviously in some pain and that the officers had testified that she was hurting in her stomach; that she had a black eye, a bruise on the temple and that there was "blood on the crutch."

At the time of defendant's pretrial "motion in limine" it was contended by the state that such evidence was admissible for two purposes: (1) to show probable cause for arrest, and (2) to show defendant's state of mind as relevant to the state's burden to prove that he resisted arrest intentionally.

Defendant says that he offered to stipulate that the arresting officers were acting under the color of their legal authority and that lack of probable cause for the arrest of the defendant would not be a defense. It may be that in some cases a defendant may be able to exclude highly prejudicial, but relevant, evidence by stipulating all of the issues to which such evidence could be relevant.

In this case the state concedes that it was not required to prove probable cause, but contends that under ORS 162.315 it was required to prove that defendant intentionally resisted arrest. ³ It follows that the state was still free to offer such evidence as was relevant to show defendant's state of mind or intent at the time that he resisted arrest.

Defendant's primary contention is that any probative value of the evidence objected to by his "motion in limine" was "minimal" and was "far outweighed" by the resulting prejudice. In support of that contention defendant quotes from State v. Flett, 234 Or. 124, 380 P.2d 634 (1963), as follows:

" * * * When highly prejudicial evidence is offered, its relevancy, i. e., its tendency to prove an issue in dispute, must be weighed against the tendency of the offered evidence to produce passion and prejudice out of proportion to its probative value." 234 Or. at 127, 380 P.2d 634.

In Flett, however, this court then went on immediately to state that:

"The rule has been followed in later cases which have made it clear that the matter is largely within the sound discretion of the trial court. See, e. g., State v. Freeman, 232 Or. 267, 374 P.2d 453 (1962) (gruesome evidence held admissible)." 234 Or. at 127, 380 P.2d 634.

In State v. Harrison, 253 Or. 489, 491, 455 P.2d 613 (1969), also cited by defendant, this court reversed a trial court for receiving evidence with "negligible" probative value where the danger of prejudice was "great," saying that:

"Evidence is not made inadmissible merely because it tends to blacken the defendant's character. State v. Hoover, 248 Or. 178, 181-182, 433 P.2d 244 (1967); State v. Tracy, 246 Or. 349, 425 P.2d 171 (1967); State v. Hancock, 245 Or. 240, 421 P.2d 687 (1966). But where the relevancy of the evidence is slight and the probability of undue prejudice is substantial, the evidence should be excluded. See Lacy, Admissibility of Evidence of Crimes Not Charged in The Indictment, 31 Or.L.Rev. 267 (1952), and Rules 45 and 47 of the Uniform Rules of Evidence (1953)."

To the same effect, see Vandermeer v. Pacific N. W. Develop., 274 Or. 221, 545 P.2d 868 (1976), also cited by defendant.

As held, however, in Carter v. Moberly, 263 Or. 193, 200-01, 501 P.2d 1276 (1972), and quoted with approval in Vandermeer, 274 Or. at 231, 545 P.2d 868:

" ' * * * If (the trial judge) finds the evidence to have no probative value, he must exclude it. If, on the other hand, it does tend to establish a fact in issue, and no contrary considerations are present in the particular case, the evidence must be admitted. Between these two extremes, however, is an area in which further judgment must be exercised. If the evidence has some probative value, but also presents difficulties such as those mentioned above, the judge must determine whether the value of the evidence outweighs, or is outweighed by, the offsetting considerations. We sometimes call the exercise of this kind of judgment 'discretion.' Its exercise requires the judge to weigh the value of the evidence in light of all the circumstances of the particular case, and his conclusion, if it is reasonable, will not be...