*1 imрrove- no Since discharged. and not hospitalized remain shown, petition. dismissed trial court ment was requirement our that effectively accomplished hearing This petitions filed under subsequent accompany an affidavit 10.77.200(3). RCW that petitioner's appeal and hold addressed the
We have
petitioner
required
grant
was
the triаl court
not
State v. Koloco-
remand
upon
trial based
new
Kolocotronis,
re
tronis,
at
note In
888. We
supra
petitioner
held that
147,
Reconsideration denied June by Supreme Review denied Court October 1983. 10537-0-I; May 10589-2-I. Division One. 1983.] [Nos. Joey Washington, Respondent, Austin, Appellant. Patrick *2 Trickey (appointed appeal) Michael J. counsel for and Roarty William of Eastside Association, Defender appellant. Maleng, Prosecuting Attorney, Norm and Deborah Phil- lips, Deputy, respondent. Defendant, Joey appeals Austin, Patrick J.
Corbett, judgment degree robbery his and sentence for first and probation revocation of his on a conviction for second degree robbery. The cases have been consolidated on appeal. We affirm. High
The ticket taker at a Garfield School basketball game gunpoint shortly was robbed at after hаlf time. She police Joey told her Austin, assailant was whom she had years. wearing known for several She said he was a red shirt yachting cap carrying gun and black and a black with a square long, barrel. She identified the defendant as the photo montage During expert robber from a and at trial. severely examination, cross her identification was tested. they The defense was alibi. Two witnesses testified were gym at the and did not see the defendant there. One of man, a red sweatsuit and wearing them saw an unidentified shortly after the rob- run out cap carrying bag, ski and a man a red sweat- bery. The other testified that he saw witnesses suit, identified him name. Three defense and with them at a friend's testified that the defendant was robbery the time the was committed. house in limine to exclude evidence of Defendant moved 609(a). under ER Defense robbery conviction for anticipated Joey "It is Austin will find counsel stated ..." necessary testify implied it his own defense testimony that his would concern his alibi. The trial court ruled the conviction would be admissible. Defendant did testify appeal, supplemented at trial. On he has proof testimony record with an offer of as to what his would testify and asserts that his failure to was a result have been of the adverse on the motion limine. cannot to a trial assigned
Error
a motion
limine to exclude
denying
evidencе because the
Wilson,
advisory
and tentative. State
*3
(1981).
895,
899
The
or denial of the
granting
425,
State v.
discretionary,
Morgan,
431,
192 Wash.
73
(1937);
Co.,
Fenimore v. Donald M. Drake Constr.
85, 91,
(1976);
Bell,
87 Wn.2d
549 P.2d
Amend
483
v.
89
138,
570 P.2d
evidentiary rulings. admissibility While the of some types trial, may of evidence be determined before most evidence 628 atmosphere
problems in the and context are best resolved many instances, In the determination of the trial. of point admissibility the cannot be made before matter's theory relationship the the case and to of the trial when its aрparent. Gamble, at 13. the other evidence becomes possibly prejudi- developed trial, Often, at as evidence is may, light evidence, other be seen in the of cial evidence to tion, bility danger prejudicial. probative In such a situa- then be more prepared to rule on admissi- is better the trial court Any in the case. heard other evidence when it has requirement by prejudice that can be avoided of presence made outside the of the evidence be the offer of jury. the Washington, 9 Gonz. L.
Comment, in Limine in Motions (1974). proper Thus, function of a motion the Rev. upon the admissi- a final in limine is not to obtain bility designed Rather, evidencе. it is potentially prejudicial prevent proponent mat- the making jury, displaying statements it to ter from about it before presenting jury, to a the matter any
jury court has ruled manner until the trial admissibility in the trial itself. the context of Lagenour State, Ind. 376 N.E.2d v. (1978). predicate instance, is, in this that the motion subject thus be stand and will take the
defendant impeachment. Among court must factors which the trial impeachment deciding whether consider importance appropriate are conviction centrality of events defendant's account hear the credibility 15, 19, Alexis, issue. properly can be these factors Neither of P.2d developed at trial. has been the evidence until evaluated rarely why rulings balance in limine can illustrates This piece prejudicial probative of evidence. values of *4 make stand, he must the not take If does the defendant by prejudiced proof he is to demonstrate of an offer ruling. the important especially proof where the is
An of offer purposes admissibility of a conviction issue review appellate aids An offer not impeachment. court, is also neces- trial but by the and self-evaluation of the importance to evaluate for the trial court sary enumer- testimony, one of considerations defendant's in Alexis. ated omitted).
(Citation Pam, v. State (1983) (Utter, J., It of no concurring). assistance P.2d 454 appeal by on an supplement record to the preserved assignment has not this proof. offer of Defendant Hebert, v. State appeal. of error for Cf. (1982).1 P.2d 1106 the denial of his motion assigns
Defendant also error to trial, defense counsel knew trial. Prior new game possibly at the аnd involved person who was another conviction, defense counsel robbery. Subsequent by within person stopped police had been learned that this from robbery, four blocks approximately of the minutes robbery generally physical descrip- He matched the scene. robbery suspect wearing jogging and was a rеd tion suit, gun He had a cap, a red baseball and white sneakers. the victim. After by similar to the one described trial, montage victim was shown contain- and she indicated photograph person, of this other ing her. who had robbed Defend- person that he was not the the newly for a new trial was based on discov- ant's motion gun. ered evidеnce arrest newly granting The criteria for a new trial based on discovered evidence are (1) the result probably change evidence will
whether the
if a new trial
(2) has
discovered since
been
granted;
(3)
trial;
before trial
could not have been discovered
(4)
of due
is material
to the
diligence;
the exercise
(5)
аdmissible;
merely
is not
cumulative
issues and
impeaching.
merits,
assignment
we would find no abuse
to review the
1Even were we
Thompson,
ruling.
in the court's
discretion
Alexis, supra.
*5
030
v. Barry,
751, 757,
App.
Wn.
see any CrR absence of these five factors is grounds Williams, for denying the motion. State v. 215, 223, (1981). Wn.2d Reversal is warranted only upon a showing that the court manifestly has abused v. Barry, discretion. State supra. An abuse of discretion is established if the court acted on untenable grounds or for untenable State ex Junker, reasons. rel. Carroll v. (1971). Testimony at trial indi- cated person that at least one other than the arrestee was wearing a red game. sweatsuit at the probability different result is, based on the evidence of the arrest therefore, questionable. Whether defense counsel exercised diligence due the information obtaining sharply dis- puted. discretionary Given the nature of the ruling, we decline to substitute our judgment for that of the trial court.
Defendant also asserts that he was denied due process by
the State's failure to
him
inform
of the
prior
arrest
to trial.
The record before us does
any
not indicate that
discovery
request
this
information was made. Absent
such a
request,
process
require
due
does not
a new trial. See
Agurs,
States v.
United
U.S.
49 L. Ed. 2d
There being entry no error sen- judgment and tence for first degree robbery, the court properly revoked probation the prior conviction.
Affirmed.
Andersen, C.J., concurs.
Scholfield, J. (concurring)—The majority opinion result, reaches the correct I but cannot subscribe to the opinion statement that error cannot assigned ruling trial court's on motion limine. Wilson, relied
by the majority, categorically: states can be assigned
No error to a on a
g3J made in objection timely in limine. Until motion the course of trial no predicate ten- advisory, in limine lоnger hypothetical, of error. tative not the basis Wilson, to exclude evidence of defendant moved In The court denied purposes. impeachment convictions for he testified to the convictions on in limine and his motion only way court held the Wilson examination. The direct testify and have the the error was presеrve could examination. Wilson out cross brought convictions *6 exceptions. for no apparently allows to and unnecessary rule in State v. Wilson is fair The any oppor- a defendant orderly procedure, yet trial denies tunity, after his motion to exclude the convictions has denied, present been to the evidence himself direct the evi- impact and ameliorate thereby examination jury. compelled the The in Wilson is not upon dence result with by the cases cited therein and inconsistent decisions Supreme our Court. Smith, (1937), In State v. 189 Wash. defendant, prior the to the commencement of his cross moved attorney, any examination the State's to exclude of his dishonorable dis- mention cross examination granted from the The charge Marines. attorney the Despite ruling,
motion. the State's asked his leaving the circumstances of the Marines question about Smith, replied, supra "I deserted." State at 427. and he to not move to object question, did not the did Defendant answеr, and did not move disregard to instruct The Court held that defend- Supreme to strike the answer. pre- sufficient to ant's motion to exclude evidence was concluded the error was appeal, serve the error demonstrates, trial. As Smith and ordered a new prejudicial necessarily on a motion to exclude evidencе not Accord, Brooks, State v. advisory tentative. merely (1978) 52, 59-60, (holding that fail- Wn. 579 P.2d raising appeal not the issue on object preclude does ure to in of an order erroneous evidence offered violation where limine) Smith, (citing State v. If supra). such a motion is sufficient to preserve error when granted, it follows that it may be the bаsis for error when denied. Hill,
In trial court ruled that the defendant could be cross-exam- ined with if respect two he convictions testified. Following ruling, the defendant elected not to take the stand. The convictions involved had both been reversed and dismissed and therefore could not be used for impeachment purposes. Suрreme Court held that trial court's error, was prejudicial reviewable on appeal, though even the defendant did testify. not opinion court's illustrates a defendant's limine merely should not be dismissed as hypothetical posing or question: abstract as clearly record it stands reflects that there was [T]he mind,
no doubt mind, counsel's judge's as to the issue the trial ruling upon or how he would rule that issue should the defendant take the Likewise, stand. it would be inappropriate hypothesize that, stand, had the defendant taken sought the prosecuting attorney might have impeach credibility with the reversed convictions. The trial judge's presented a invitation to standing prosecuting attor- ney which, very likely, he would not have ignored. *7 Hill, v. State at supra 565.
If a motion in limine is
at a
in the
point
made
trial when
position
no
to rule
admissibility
on
of
evidence,
the motion is properly
preserves
denied and
error
in respect
no
to later admission
that
of
evidence.
Co.,
Fenimore v.
M.
85,
Donald
Drake Constr.
(1976) (pretrial
Fenimore v. Donald M. Constr. supra Drake at 92.
g33 Latham, App. 638 v. 30 Wn. State (1982), in respond- Wn.2d 1006 (1981), granted, review Wilson, supra, v. State citing argument, State's to the ing in limine was motion pretrial on that error, be the basis of could not and tentative and advisory stated: are, in limine motions are times when there
We believe
error
advisory
the basis of
tentative,
and not
necessity,
can
be
of the evidence
effect
prejudicial
because the
dеtermined
However,
trial.
at
the time it
introduced
admissibility
questions concerning
there are
that can and should be determined
certain evidence
parties
in limine for the benefit of the
by motions
to trial
all,
After
justice.
administration
proper
dispose
in limine is to
of a motion
purpose
[t]he
will not
forced to make
so counsel
legal matters
of the
which
might
in the presence
comments
prejudice
presentation.
(1981).
Evans,
v.
Furthermore,
courts
numerous cases have
Washington
limine
than
on motions in
are more
rulings
stated that
motion,
tentative;
granted
once the court has
such
necessary
preserve
to claim
right
objection
no
[Citing
if the evidenсe is nevertheless
admitted.
error
authorities.]
by reversing
the court erred
We find
jury.
motion in limine after voir dire
59-60,
Moore,
App.
in State v.
33 Wn.
On appeal,
(1982),
the denial of
argued
P.2d
the State
it was
not reviewable because
limine was
Moore's
Wilson,
trial,
We
citing
supra.
at
renewed
Moore's case:
applied
this
as
argument
rejected
at the motion
Moore, however,
complete
record
made
final, not ten-
limine,
court's
was
and the trial
Here,
impeachment
advisory.
the issue of
tative or
prior
final
determination
ideally
suited
conviction
disruption and
minimized trial
in a
motion that
pretrial
unnec-
review. It was
appellate
matter
prеserved
Latham,
v.
trial. State
objection
at
essary to renew
granted,
review
776,
When a has judge ruling made a on a in motion limine to admit prior conviction, purpose apprising the trial possible error has been served. Often, earliest, such a motion will assure the disrup- least tive, disposition and fairest question. If the issue presented is one where limine prema- would be ture, the judge can decline to make a definitive ruling until point later the trial.
When the court rules limine that a рrior conviction will be admitted and has not changed by the ruling time the defendant must make a testify decision to or not testify, tentative, is no longer hypothetical, or is, It advisory. then, a final which the defendant should be allowed to treat as such and make decisions accordingly. steps preserve No further the claim of error for appellate review should required except as Pam, 748, (1983) (Utter, J., concur- Hebert, and State v. ring) 33 Wn. App.
(1982) require proof preserve an offer of a claim of error appeal where defendant not testify following does denial limine to exclude a conviction.
Reconsideration denied June 1983. granted by Supreme September 2, Review Court 1983.