Reed v. State

RAKER, Judge,

dissenting.

I would reverse the judgment of the Court of Special Appeals. First, I would hold that under the facts of this case, the alleged error was preserved for appellate review. Second, I would eliminate the requirement of a contemporaneous *644 objection to preserve for appellate review a trial court’s denial of a motion in limine.

Although not specifically provided for in the Maryland Rules of Procedure, a motion in limine is widely used by practitioners in an effort to exclude prejudicial evidence from trial. The question which frequently arises is whether the motion in limine is sufficient to preserve any error for appeal when the motion is denied, or whether an objection was required when the evidence was introduced at trial. Within the framework of Prout, the Majority adheres to the contemporaneous objection rule, and holds that a pre-trial order denying a motion in limine is ordinarily insufficient to preserve for appeal the question of the admissibility of the evidence. I disagree. I would hold that a motion in limine is sufficient in and of itself to preserve an alleged error of a pretrial evidentiary ruling, regardless of whether the in limine ruling was to admit or to exclude the evidence, and without the requirement of a contemporaneous objection at trial. Accordingly, I dissent.

A motion in limine is ordinarily made at the beginning of a trial, or before a trial actually commences, with the purpose of excluding prejudicial matters from the knowledge of the jury. Black’s Law Dictionary (6th ed.1990) defines “in limine ” as “on or at the threshold; at the very beginning; preliminarily.” Such motions are beneficial in that they reduce the need for bench conferences, eliminate the necessity for curative instructions to a jury to disregard inadmissible evidence, and generally minimize interruptions during trial. See Palmerin v. City of Riverside, 794 F.2d 1409, 1412-13 (9 th Cir.1986). Most trial lawyers know that prejudicial information suggested to jurors is often difficult to cure, that objections to prejudicial material may only emphasize it, and that curative instructions may be at best minimally effective. See J. Ghent, Annot., Modem Status of Rules as to Use of Motion In Limine or Similar Preliminary Motion to Secure Exclusion of Prejudicial Evidence or Reference to Prejudicial Matters, 63 A.L.R.3d 311 (1975 & 1998 Supp.). The use of the motion in limine is an accepted procedure to avoid this dilemma.

*645 There is a split of opinion around the country on the necessity for a contemporaneous objection to preserve error raised in a motion in limine. Generally, the First, Fifth, Eighth, and Eleventh Circuits adhere to the contemporaneous objection requirement. See, e.g., Goulah v. Ford Motor Co., 118 F.3d 1478 , 1483 (11th Cir.1997); Marceaux v. Conoco, Inc., 124 F.3d 730, 734 (5th Cir.1997); Keeper v. King, 130 F.3d 1309, 1315 (8th Cir.1997); United States v. Graves, 5 F.3d 1546, 1551 (5th Cir.1993); United States v. Reed, 977 F.2d 14, 17 (1st Cir.1992). Many states also require contemporaneous objections. See, e.g., State v. Hayes, 350 N.C. 79 , 511 S.E.2d 302 (1999); Lin v. Houston Community College System, 948 S.W.2d 328, 336 (Tex.App.1997); Carter v. State, 634 N.E.2d 830, 832-33 (Ind.Ct.App.1994); Romanek-Golub & Co. v. Anvan Hotel Corp., 168 Ill.App.3d 1031 , 119 Ill.Dec. 482 , 522 N.E.2d 1341, 1347-48 (1988).

The Third, Fourth, Seventh, Ninth, Tenth and D.C. Circuits have abolished the requirement and have held that a denial of a motion in limine alone may be sufficient to preserve error. See, e.g., United States v. Madoch, 149 F.3d 596, 600 (7th Cir.1998); Scott v. Ross, 140 F.3d 1275, 1285 (9th Cir.1998), reh’g denied, 151 F.3d 1247 , cert. denied, Cult Awareness Network v. Scott, — U.S. —, 119 S.Ct. 1285 , — L.Ed.2d —; Walden v. Georgia-Pacific Corp., 126 F.3d 506, 519 (3rd Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 1516 , 140 L.Ed.2d 669 (1998); United States v. Williams, 81 F.3d 1321, 1325 (4th Cir.1996), vacated and remanded in part on other grounds, 110 F.3d 62 (4 th Cir.1997); Pandit v. American Honda Motor Co., Inc., 82 F.3d 376, 380 (10th Cir.1996); United States v. Mejia-Alarcon, 995 F.2d 982, 986-88 (10th Cir.1993); American Home Assur. v. Sunshine Supermarket, 753 F.2d 321, 324-25 (3rd Cir.1985); United States v. Williams, 561 F.2d 859, 862-63 (D.C.Cir.1977). Many states also have eliminated the need for the contemporaneous objection in these circumstances. See, e.g., State v. Weeks, 270 Mont. 63 , 891 P.2d 477, 490 (1995); State v. Bradshaw, 193 W.Va. 519 , 457 S.E.2d 456, 475 (1995); Dalrymple v. Fields, *646 276 Ark. 185 , 633 S.W.2d 362, 364 (1982); State v. Miller, 229 N.W.2d 762, 767-68 (Iowa 1975).

A workable rule that emerges from those cases that have relaxed or eliminated the contemporaneous objection requirement is that an objection to the denial of the motion in limine is alone sufficient to preserve the alleged error if the substance of the objection has been thoroughly explored at the hearing on the motion, the order denying the motion is explicit and definitive, the evidence offered at trial is substantially consistent with the evidence considered at the hearing on the motion, and there is no suggestion that the trial court would reconsider the matter at trial. See Palmerin, 794 F.2d at 1412-1413 ; Bradshaw, 457 S.E.2d at 475 . This is the rule I would adopt for Maryland.

The Ninth Circuit in Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (1986) rejected the bright-line approach of the Fifth and Eighth Circuits requiring a contemporaneous objection to the admissibility of evidence to preserve the matter for appeal. Id. at 1413 . The court declined to adopt that approach because “it raises the danger that an unsuccessful motion in limine will serve as a trap for unwary counsel and bar an appeal of a meritorious issue on essentially technical grounds.” Id. The court reasoned:

To require invariably a contemporaneous objection after a rejected in limine motion would be tantamount to requiring formal exceptions. This would exalt the form of timely objection over the substance of whether a proper objection has been made and considered by the trial court.

We, therefore, reject an invariable requirement that an objection that is the subject of an unsuccessful motion in limine be renewed at trial.

Id. at 1413 .

In United States v. Mejia-Alarcon, 995 F.2d 982, 986-88 (10th Cir.1993), the Tenth Circuit rejected a per se rule that motions in limine may never preserve an objection for appellate review. 1 The court concluded that when counsel diligently *647 advances the contentions supporting a motion in limine and fully informs the trial judge of the issue in an evidentiary hearing, application of the rule requiring a contemporaneous objection at trial makes little sense and serves as a “trap for the unwary, who sensibly rely on a definitive, well-thought-out pretrial ruling.” Id. at 986 . The court observed that “requiring the renewal of objections after a definitive ruling may be a needless provocation to the trial judge, not to mention a distracting interruption during the trial.” Id.

The Prowl rule is the real trap for Maryland practitioners. The Prout rule permits preservation when the motion in limine is granted, but not so when the motion is denied. Contrary to the pronouncement of the Majority, the rule does not promote consistency and judicial efficiency. Indeed, the contrary is true. The Prowl rule is subject to discretionary and sometimes arbitrary application, leading to inconsistent results. See, e.g., Watson v. State, 311 Md. 370 , 535 A.2d 455 (1988); Dyce v. State, 85 Md.App. 193 , 582 A.2d 582 (1990) (holding issue preserved notwithstanding the lack of literal compliance with Rule 4-323(a) because of the temporal proximity between the ruling on the motion in limine and the prosecutor’s initial inquiry on cross-examination).

As this Court in Watson v. State, 311 Md. 370 , 373 n. 1, 535 A.2d 455 , 457 n. 1 (1988) pointed out in justifying review without a contemporaneous objection, “requiring Watson to make yet another objection only a short time after the court’s ruling to admit the evidence would be to exalt form over substance. We have repeatedly stated that neither this Court nor Rule 4-322(d) requires formal exceptions to the admission of evidence.” In Watson , the trial judge ruled prior to trial on the motion in limine to admit Watson’s prior convictions. Id., 535 A.2d at 457 n. 1. The trial judge reiterated his ruling immediately prior to the State’s cross-examination of Watson *648 which elicited the alleged inadmissible evidence. Id., 535 A.2d at 457 n. 1.

In the case sub judice, Reed objected pre-trial, and the trial judge reconsidered the evidence immediately prior to the commencement of the trial. Is this not form exalted over substance to require yet another objection? Clearly, the Maryland Rules have eliminated the need for formal exceptions to preserve objections. Md. Rule 4-323(d) Formal exceptions unnecessary; see also Watson, 311 Md. at 372 -73 n. 1, 535 A.2d at 457 n. 1; Covington v. State, 282 Md. 540, 543 , 386 A.2d 336, 337 (1978). Requiring a formal objection under the circumstances presented herein is akin to requiring a formal exception. See Sunshine Supermarket, 753 F.2d at 324-25 (observing that Federal Rule of Civil Procedure 46, which states that formal exceptions are unnecessary, could be construed to eliminate the contemporaneous objection rule).

In this case, the judge presiding at the trial held full argument on the motion in limine. The trial judge made a final, definitive ruling denying the motion. At trial, when the evidence was offered, defense counsel stated: “The objection has been litigated. We would ask to preserve that.” An objection when the evidence was offered at trial would have been futile and have added nothing. As the Supreme Court of Oregon observed:

In the case at bar, defense counsel did not have to walk barefoot through any more legal coals to protect his client’s record. He made a sufficient offer of proof of what would happen in the trial to permit the court to rule intelligently on the propriety of the offered evidence, he asked for a final ruling and, although the trial judge was not obligated to do so, the judge gave a final ruling. There was no need for any further procedure to preserve the assignment of error.

State v. Foster, 296 Or. 174 , 674 P.2d 587, 592 (1983) (in banc).

Accordingly, I would reverse the judgment of the Court of Special Appeals and remand the case to that court for a consideration of the issue on the merits.

*649 Judge ELDRIDGE has authorized me to state that he joins in the views expressed herein.

. The Mejia-Alarcon court adopted a three-part test to determine whether it was necessary to renew the objection at trial. First, the *647 appellate court asks whether the matter was adequately presented to the trial court. Second, the appellate court determines whether the issue is of the type that can be finally decided pre-trial. Third, the appellate court decides whether the trial court's ruling was definitive. United States v. Mejia-Alarcon, 995 F.2d 982, 986-87 (10 th Cir.1993).