State v. Quick

• Decision Date: 14 July 1979
• Docket Number: No. 50447,50447
• Citation: 226 Kan. 308,597 P.2d 1108
• Parties: STATE of Kansas, Appellee, v. Ronald QUICK, Appellant.
• Court: Kansas Supreme Court

Page 1108

597 P.2d 1108

226 Kan. 308

STATE of Kansas, Appellee, v. Ronald QUICK, Appellant.

No. 50447.

Supreme Court of Kansas.

July 14, 1979.

Syllabus by the Court

1. The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel.

2. It is generally agreed a protective order issued on a motion in limine should be granted only when the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) The mere offer of or statements made during trial concerning the material will tend to prejudice the jury.

3. The primary purpose of the motion in limine is to prevent prejudice during trial. Its use should be strictly limited to accomplish that purpose. It must not be used to choke off a valid defense in a criminal action.

4. Guidelines for the proper use of the motion in limine are considered and set forth in the opinion.

5. Before a hearsay statement should be admitted as a declaration against penal interest under K.S.A. 60-460(J ), the statement must in fact have been made against the declarant's interest so as to have the potential for subjecting the declarant to criminal prosecution at the time of its utterance.

6. K.S.A. 60-460(J ) contemplates that the judge, using judicial discretion, find the statement "was at the time of the assertion so far contrary" to the declarant's penal interest "that a reasonable man in the declarant's position would not have made the statement unless he or she believed it to be true."

7. The finding of the trial judge as to whether a defendant used a firearm in the commission of an Article 34 offense is to be made at the time of sentencing under K.S.A.1978 Supp. 21-4618.

Robert L. Taylor, Hutchinson, argued the cause and was on the brief for appellant.

Joseph P. O'Sullivan, III, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

FROMME, Justice:

Ronald Quick was convicted of aggrieved robbery (K.S.A. 21-3427) in a jury trial and sentenced to a period from five years to life. A summary of the factual situation out of which this conviction arose follows:

At 7:00 p. m. on May 10, 1978, a man walked into the F & S Liquor Store in Hutchinson, Kansas. Stella Stewart was the only employee on duty. The man pulled a handgun and demanded money. The man received approximately $130.00. He then left the store and crossed the street in the direction of a motel.

Mr. Richard Peterson and his wife were playing with a "frisbie" in the driveway of the motel. Mr. Peterson testified that he saw a passenger leave his vehicle, cross the street to the liquor store, and hurriedly return to the car shortly thereafter. He identified the defendant as that man and was positive it was the defendant because he had worked with defendant at a roofing company in Hutchinson. Peterson testified the driver in the car started to "take off" before the defendant was completely inside the car. The car was an orange colored Ford Pinto. Mrs. Stewart, the clerk, was able to identify the defendant at the trial by two moles on his face. Defendant was arrested in Hutchinson two days later. He has continued to maintain his innocence.

At the trial defendant testified in his own behalf as follows: He is a painter by trade. He did not commit the crime. At the time of the robbery he lived in Nickerson, Kansas. He was in the home of a friend, Noel Dawkins, at 7:00 p. m. on the evening the robbery occurred. He has never owned an orange Ford Pinto automobile and did not ride in one on the evening of May 10, 1978.

His friend, Noel Dawkins, testified at the trial. He verified defendant's presence at his house from 6:30 to 7:30 that particular evening. Another friend, Marion Russell Walton, also testified at the trial. He accompanied the defendant when the defendant visited Noel Dawkins. They were at the Dawkins home from 6:30 to 7:35 p. m. on the evening of the robbery. The defendant owned and was driving a green Chevrolet automobile that evening. Defendant also produced two other witnesses who testified a green Chevrolet automobile came to the Dawkins residence around 7:00 p. m. on the evening of May 10, 1978. The alibi evidence was substantial.

The sufficiency of the state's evidence is not being questioned. The above recital of evidence of alibi bears only on a question raised concerning the improper exclusion of evidence. Defendant offered to introduce evidence that a man by the name of David Fors admitted committing the crime of which defendant was convicted, and that Kathy Gore, a friend of David Fors, owned an orange Pinto automobile similar to the getaway car used in the robbery. The first two points concern the exclusion of this evidence.

Prior to trial the prosecution filed in writing a "motion in limine" for the following purpose:

"(T)o prohibit the Defendant or his counsel from testifying or eliciting testimony regarding alleged admissions made by one David Fors pertaining to the commission of the Aggravated Robbery offense for which the Defendant is charged. . . .

"It is therefore respectfully requested from the Court that an Order in Limine be issued restraining the Defendant or any witness called on his behalf from offering any testimony concerning any alleged association by David Fors with the commission of the offense for which the Defendant is charged and the counsel for the Defendant by (Sic ) specifically ordered and held responsible by this Court for any testimony so offered without the subpoenaed presence of David Fors in the Reno County Courthouse during the conduct of the trial."

The motion was granted and the trial proceeded.

Before we consider the merits of this point we feel that some general discussion may be helpful. The motion in limine is recognized in Kansas. See Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 200, 563 P.2d 467 (1977). Judging from the records that have appeared in this court the motion in limine is being used with greater and greater frequency. Yet, despite the frequent use of the motion, very little appears in our case law concerning its nature, purpose, and proper use.

Black's Law Dictionary, p. 896 (4th ed. rev. 1968) defines in limine as: "On or at the threshold; at the very beginning; preliminarily." This term has been loosely used in practice to designate almost any motion filed and to be ruled on before trial. In recent years the use of the motion in limine has gained general acceptance. See Annot., 63 A.L.R.3d 311 (1975). The phrase, motion in limine, is not found in the procedural statutes of Kansas. See K.S.A. 60-207 and K.S.A. 22-3208, which relate to pleadings and motions generally. Authority for the use of the motion in limine in many states is found in "the inherent power of the trial court to exclude or admit evidence." Burrus v. Silhavy, 155 Ind.App. 558, 563, 293 N.E.2d 794, 797 (1973). Other courts have found authority for the motion in procedural rules such as Fed.R.Civ.Proc. 16(6) which gives the federal trial courts broad authority to conduct pretrial conferences. See Aley v. Great Atlantic & Pacific Tea Co., 211 F.Supp. 500, 503 (W.D.Mo.1962).

In Kansas our trial courts in both criminal and civil cases have broad authority to conduct pretrial conferences to consider such matters as will promote a fair and expeditious trial, and to consider various matters as may aid in the disposition of the action. See K.S.A. 22-3217 and K.S.A. 60-216. The Kansas Code of Civil Procedure was patterned after the federal rules. There can be little doubt that the trial courts in Kansas have authority to entertain a motion in limine by reason of the pretrial authority conferred by statute.

The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel. It is generally agreed a protective order issued on a motion in limine should be granted only when the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) The mere offer of or statements made during trial concerning the material will tend to prejudice the jury. See Rothblatt & Leroy, The Motion in Limine in Criminal Trials: A Technique for the Pretrial Exclusion of Prejudicial Evidence, 60 Kentucky L.J. 611, 621 (1972); and Davis, The Motion in Limine A Neglected Trial Technique, 5 Washburn L.J. 232 (1966). The material to which the motion in limine is addressed may be either inadmissible under an established rule of evidence, such as the hearsay rule, or it may be excludable under a statute, such as K.S.A. 60-445, because its probative value is substantially outweighed by its tendency to prejudice.

As previously mentioned the primary purpose of the motion in limine is to prevent prejudice during trial. Its use should be strictly limited to accomplish that purpose. It must not be used to choke off a valid defense in a criminal action. See State v. Bradley, 223 Kan. 710, 713, 576 P.2d 647 (1978), where this court found that the motion in limine had been used to exclude relevant and material information pertaining to the defense, and that defendant's fundamental right to a fair trial had been violated.

In Lewis v. Buena Vista Mutual Insurance Association, 183 N.W.2d 198, 201 (Iowa 1971), that court said:

"We deem this appeal an appropriate one in which to say that cases are coming to this court revealing questionable use of the motion in limine questionable in the manner of its use or in its use at all. The motion is a drastic one, preventing a party as it does from presenting his evidence in the usual way. Its use should be exceptional rather than general. . . ."

We wish to add a word of caution against the overuse of the ...