Jorden v. JohnsonJorden v. Johnson
Lead Opinion
Jordan appeals from the denial of her motion for new trial, in this personal injury case arising from an automobile collision, on the grounds that Johnson violated the court’s order on a motion in limine and that the testimony elicited in response to Johnson’s violation went to the ultimate issue of negligence.
Jordan submitted a written motion which apparently was addressed in chambers before trial without the court’s order recorded. The motion sought an order “that there be no evidence offered or alluded to concerning the purported cause of the subject
On direct examination of the investigating officer, plaintiff Jordan elicited the officer’s testimony as to what each party told her about how the collision occurred. On cross-examination, Johnson asked the officer whether, from information gained at the scene, she was “able to confirm or deny either Ms. Jordan’s story or Mr. Johnson’s story.” She answered, “No sir.” Johnson then asked: “Were you able to make any determination as to who caused this accidеnt?” To this she gave the same answer. The court’s post-trial order stating the plaintiff’s motion was “in effect” does not state that these questions or answers exceeded any limitation.
Jordan has supplied this Court with only an excerpt of that portion of the transcript shоwing the direct and cross-examination of the investigating officer. An appellant may choose to have only a portion of the record below transmitted to this Court.’
Jordan has not demonstrated that the questioning violated any limits the court imposed in response to the motion. The court’s contemporaneous order on the motion, if one exists, is not included in the record. The post-trial declaration that the motion was “in effect” does not state the court rendered any order and suggests there may have been none; the matter was “discussed” and the defense made “no objection.” If there was a court ruling on the motion in limine, the post-trial order does not reveal what that may have been. Nor does the post-trial order indicate in any way that the questions complained of violated any previous ruling. Rather, as the court denied Jordan’s motion for new trial in which she raised the alleged viola
If we must judge the matter solely by the request in the motion, the questioning did not offend the motion; there was no questioning about any cause noted on the accident report or any citation given to Jordan. There is no indication that the accident report itself was placed in evidence and the record does not show that the questioning exceeded a court-ordered boundary.
Nor is there any indication the testimony elicited was harmful. It in no way suggested that Jordan was at fault. Although she argues it was harmful because it left the jury with “no other reasonable deduction but to conclude that either both parties were equally at fault or that neither party was at fault,” that is not the case. The only reasonable inference is that the officer had nothing tо say on the matter of fault; the jury was left to decide the issue on all the other evidence.
An investigating officer is permitted to testify as to what she observes at an accident scene and give an opinion based upon that evidence about how the cоllision occurred but not about which party was at fault. Emory v. Dobson,
Judgment affirmed.
Concurrence Opinion
concurring specially.
I agree with the holding of the majority regarding appellant’s failure to establish affirmatively by the appellate record that there occurred a specific violation of the motion in limine order so prejudicial аs to result in reversible error and with the majority’s ultimate disposition of this case. Because appellant failed to establish such a violation affirmatively by the record there exists nothing for this Court to review. However, I am compelled to write separately tо emphasize and clarify that, under our precedent, appellant did not have to object following the alleged motion in limine violation in order to preserve such issue for appellate review.
“A motion in limine is a pretrial method of determining the admissibility of evidence, as a party may secure a pretrial ruling on the admissibility of evidence or a ruling prohibiting any reference to certain evidence until its admissibility can be assessed in the context of the trial as it unfolds. [Cit.] By its very nature, the grant of a
While it is true that in Reno, the husband’s attorney moved for a mistrial at the next scheduled recess, nothing in the Supreme Court’s holding in Reno is prеdicated expressly on this fact. Moreover, the issue granted and addressed in Reno, supra at 855, was cast as follows: “The issue before this Court ... is whether, after a motion in limine to exclude certain evidence is granted, the movant must object to a subsequent offer of evidence allegedly encompassed by the preliminary ruling in order to preserve the alleged error for appellate review. For the following reasons, we conclude that the answer is no.” Thereafter in its analysis of this stated issue, the Supreme Court does not again mention (let alone discuss any significance of) the fact that a belated mistrial motion had been made when the jury finally recessed. From a close reading of Reno, supra, it can only be concluded that the making of the mistrial motion during a subsequent recess was nоt a relevant factor in’the Supreme Court’s ruling; in fact, the engrafting of such a requirement would run contrary to the express holding in the case. Moreover, it is well established that questions which merely lurk in the record, neither brought to the
As recognized in Reno, a grave danger exists to the fair trial rights of the parties to compel the raising of an objection or mistrial motion in the presence of the jury as to matters in which a motion in limine properly has been granted. Reno, supra at 856. Clearly, therefore, no immediate objection to a motion in limine violation should be required in the jurors’ presence. Nor should the holding of Reno be circumvented by engrafting a rule that an objection to a motiоn in limine violation must be raised later in the proceedings when the jury is not present. Such a strained interpretation would run contrary not only to the plain language of Reno but to the basic philosophy of this Court and the Supreme Court that objections and mistrial motions, when required, should be timely made. To allow a party to wait, perhaps for several hours before the jury conveniently recesses or otherwise withdraws from the courtroom, before posing an objection or moving for mistrial is fraught with difficulty. First, such a delay frequently will cause the parties to experience difficulty in remembering what was said in the jurors’ presence and may necessitate the time-consuming procedure of searching for and reading back salient portions of the reporter’s notes. Secondly, in certain circumstances, the corrective action to be taken may include striking the matter and a curative instruction to the jury, which when belatedly made would cause even far greater “special attention” to be called to the matter under consideration. Thirdly, but equally impоrtant, appellate courts have held, in other types of cases, that a mistrial motion is waived if not immediately entered on the record when the prejudicial event occurs. See generally Thaxton v. State,
Recognizing the interrelationship of the above factors and the limited but unique purpose for which a motion in ‘limine should be granted, a panel of this Court in Seay v. Urban Medical Hosp., 172
Additionally, the actual holding in Reno, as reflected in the plain words of its text and in its progeny cases, Seay, supra, and Scott, supra, is consistent with the basic rule announced in State v. Johnston,
I am authorized to state that Judge Blackburn joins in this special concurrence.