State v. Bennett

THAYER, J.,

concurring specially: I agree with the result reached in this case but do so for reasons other than those relied upon by the majority. Specifically, the majority should not have addressed whether the trial court correctly concluded that the defendant’s taped statement was hearsay because that issue was not preserved for appellate review. For the reasons explained herein, a conditional, preliminary ruling should not be sufficient to preserve an issue on appeal when that issue was not raised at trial.

“It is a bedrock principle of our adjudicatory system that ostensible errors arising before and during trial must be properly raised and preserved in order to be reviewable on appeal.” United States v. Holmquist, 36 F.3d 154, 163 (1st Cir. 1994). In terms of evidentiary limitations, this principle is so important that we find it partially codified in our Federal and State Rules of Evidence. Id.; see N.H. R. EV. 103.

The purpose of New Hampshire Rule of Evidence 103 is to provide the trial court with the opportunity to rule on issues and to correct errors before they are presented to the appellate court. See State v. Saulnier, 132 N.H. 412, 414, 566 A.2d 1135, 1136 (1989). Unlike Federal Rule of Evidence 103, which allows appellate review where specific grounds are not raised at trial, see Fed. R. Evid. 103(a)(1), New Hampshire Rule of Evidence 103(b)(1) mandates a contempo*23raneous and specific objection at trial to preserve an issue for appellate review. See State v. Wisowaty, 133 N.H. 604, 607, 580 A.2d 1079, 1081 (1990). “Furthermore, unlike the Federal ‘plain error rule,’ New Hampshire deems any objection not raised at trial to be waived and may not be considered on appeal.” State v. Johnson, 130 N.H. 578, 587, 547 A.2d 213, 218 (1988) (quotation and ellipses omitted). An evidentiary ruling excluding evidence, as in the present case, is not preserved for appeal unless the record discloses a contemporaneous offer of proof at trial indicating what the testimony would have been. Saulnier, 132 N.H. at 413, 566 A.2d at 1135.

Motions in limine minimize interruptions at trial because the court will be apprised of counsels’ arguments before trial and can analyze them and any new arguments in light of evidence adduced at trial. They do not, however, relieve parties from compliance with Rule 103. “[I]t is not the office or function of a motion in limine to obtain a final ruling upon the ultimate admissibility of evidence.” 75 Am. Jur. 2D Trial § 94, at 307 (1991). Instead, rulings on motions in limine are interlocutory and preliminary in nature and subject to change as evidence develops at trial. Id. at 307-08. Therefore, the decision is not immediately appealable, and a timely and proper objection must be made at trial when the evidence is presented to preserve the issue for appeal. Because of the differences that can arise between the proffered evidence at the hearing on the motion in limine and that which is offered at trial, some courts refuse to grant in limine motions at all. Id. § 96, Trial § 96, at 309-10; see, e.g., Robertson v. White, 113 F.R.D. 20, 27-28 (W.D. Ark. 1986). Of the remaining courts that allow in limine rulings when viewed in the context of Rule 103, the preservation of an issue raised at a motion in limine depends upon the category under which the preliminary order falls: (1) definitive; or (2) conditional.

Those courts that allow a pretrial ruling to preserve an issue for appellate review absent a renewal at trial require that the pretrial ruling be, inter alia, definitive. See, e.g., American Home Assur. v. Sunshine Supermarket, 753 F.2d 321, 324-25 (3d Cir. 1985); United States v. Wood, 943 F.2d 1048, 1054-55 (9th Cir. 1991); United States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir. 1993). In addition to a definitive ruling, a few courts require that the question posed in the motion in limine be one whose nature and relevance is clear before trial. See, e.g., Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1118-19 (8th Cir. 1985), cert. denied, 475 U.S. 1046 (1986). However, most cases finding definitive rulings preserved are limited in that they involve evidence proffered under Rule of Evidence *24609(a)(2), which affords the trial court no discretion in admitting the evidence, see, e.g., Wood, 943 F.2d at 1054-55, and therefore a preliminary ruling on its admissibility is far less likely to change at trial. Conversely, other proffered evidence in which a balancing test is required, such as that mandated by Rules 403 and 609(b), may be viewed differently at the preliminary hearing and at trial. See United States v. Cobb, 588 F.2d 607, 612-13 (8th Cir. 1978), cert. denied, 440 U.S. 947 (1979). For example, application of Rule 403 may result in the exclusion of relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.H. R. EV. 403.

Federal courts take the position that an objection at trial is necessary to preserve an issue unless the pretrial motion dealt with an issue that is: (1) fairly presented to the court; (2) the type of issue that can be finally decided in a pretrial hearing, such as questions of law; and (3) ruled upon without equivocation by the trial judge. Mejia-Alarcon, 995 F.2d at 986-87. In terms of the second requirement, I cannot underscore enough the fact that courts that do allow definitive in limine rulings to be appealed absent an objection at trial caution that “most objections will prove to be dependent on trial context and will be determined to be waived if not renewed at trial.” Id. at 988. The third requirement addresses the “definitiveness” of the in limine ruling. In order for it to be satisfied, the ruling must be “explicit and definitive,” and there must be no indication that the earlier ruling might be subject to reconsideration. Id. at 987.

The majority has taken the position that the motion in limine ruling was definitive, which, in my view, is contrary to the record. The following exchange transpired at the in limine hearing regarding the proffered evidence at issue:

DEFENSE COUNSEL: We might want to introduce [the] statement, what did he die from. . . . And there are just a few others.
For example, when he tells the police I remember going somewhere where I’m not supposed to be going in the middle of the night with somebody that’s not supposed to be there. [It] [m]ay be our position that should be admissible ....
*25COURT: My inclination is they’re hearsay. But that’s just ... to let you know where I’m going. I will take it on a question by question basis at trial ....

In its written order on the motion in limine, the court ruled:

Based on the offer of proof by defense counsel, the Court believes the portions of the defendant’s taped statement he seeks to admit are hearsay .... Accordingly, the Motion [by the State] ... is GRANTED.
The Court will consider revision of some rulings, upon motion of either party, during trial.

This case does not fall within the “definitive” category of in limine rulings. At the very least, the ruling was ambiguous. Furthermore, the ruling lacked definitiveness because the court stated in its oral and written orders that they were subject to reconsideration when it stated that it would “consider revision of some rulings . . . during trial.” Cf. Doty v. Sewall, 908 F.2d 1053, 1056 (1st Cir. 1990) (holding pretrial motion in limine insufficient to preserve issue for appeal where district court declined to rule on admissibility of evidence until evidence was actually offered). Because the trial judge invited the defendant to renew his objection at trial, this in limine ruling must be classified as conditional. See United States v. Addo, 989 F.2d 238, 242 (7th Cir. 1993). Furthermore, the hearsay statements are subject to a Rule 403 balancing test and are not the type that can be definitely ruled on prior to trial. Cf. Mejia-Alarcon, 995 F.2d at 987-88.

Even if the preliminary ruling were definitive, the better rule is that in order to preserve issues for appellate review, an objection must be made at trial. This view is predicated on the theory that a motion in limine presents a largely hypothetical question and that a trial court is in a better position to rule on an evidentiary issue in light of a specific trial situation. Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980). In addition, “there are concrete limits to a party’s right to request appellate review of evidentiary rulings, and . . . these limits reflect two factors: (1) the legitimate needs of appellate courts in the review of alleged evidentiary errors stemming from trials; and (2) the possibility that a defendant might exploit adverse rulings by treating them essentially as legal jokers, to be pulled from his sleeve should a conviction ensue.” Holmquist, 36 F.3d at 164 (citation omitted). Not requiring an objection at trial *26would constitute an invitation to the losing party to lull the judge into thinking that a theory has been abandoned and then, after he has lost, “pull a rabbit out of his pocket in the form of the forgotten motion.” United States v. Taglia, 922 F.2d 413, 416 (7th Cir.), cert. denied, 500 U.S. 927 (1991). Justice cannot be served if we allow parties to use motions in limine as a shield in one instance and as a sword in another.

The majority’s position forces this court to engage in rank speculation about whether the trial court would have admitted the evidence had the defendant proffered it at trial. Holmquist, 36 F.3d at 166. Such speculation will erode the purpose of appellate review, which includes examining what the court actually did at trial based on the evidence actually admitted during trial instead of analyzing rulings made during a preliminary hearing. An appellate court should review issues in light of trial testimony and not in light of a motion in limine. The judge ruling on the motion in limine may not be the judge presiding at trial. The factual predicate upon which the court’s ruling is based may no longer exist at trial or the Rule 403 weighing may be affected by evidence that is introduced. That being so, the trial judge must be afforded the opportunity to consider the evidence at the time of trial. Otherwise, a trial court may be reversed for something that was never brought to its attention within the proper context.

The majority position will also allow the defeated party at the in limine hearing to sandbag opposing counsel who has been lulled into thinking that the objection has been abandoned. On that basis, the prevailing party may not argue or put on evidence to support the in limine ruling at trial. The appellate court, therefore, reviews only the prevailing party’s evidence produced at the in limine hearings, whereas the prevailing party may have had an arsenal of evidence to produce at trial had the need arisen. We determine whether evidentiary rulings were error based on evidence adduced at trial. Evidence in support of the rulings could be irrelevant for any other purpose, and therefore inadmissible unless the pretrial issue is brought before the trial court. Even if opposing counsel attempts to adduce additional evidence, the trial court may exclude it as irrelevant unless the trial court knows that the pretrial ruling is disputed. Most importantly, this result could lead to the overturning of jury verdicts in both criminal and civil cases on grounds not contested at trial.

A necessary result of the majority’s holding is that trial courts will be reluctant to rule on motions in limine in an effort to ensure that all contested matters are brought before the court and the very *27benefit of such motions will be lost. Alternatively, trial courts will be forced during trial, sua sponte, to inquire as to whether either party objects to any existing preliminary rulings. Furthermore, the party in whose favor the in limine motion was decided will be well advised to raise the issue at trial to ascertain if any objection exists. If so, counsel will have to ask the trial court to revisit the issue and, in so doing, be allowed to present further relevant evidence.

Therefore, while I agree with the result reached in part III, I respectfully disagree with the analysis. Accordingly, I concur in the result only.

HORTON, J., joins in the special concurrence.