Opinion
No. 7918SC599
Filed 15 January 1980
1. Criminal Law 21 — motion in limine to exclude evidence A motion in limine to exclude prejudicial evidence comes within the purview of G.S. 15A-952(a).
2. Criminal Law 21 — motion in limine to exclude evidence A motion in limine to exclude prejudicial evidence should be made only in those cases where the proposed evidence is material and substantial and a pretrial ruling is necessary to avoid prejudice at trial or is necessary to the preparation of the case for trial.
3. Criminal Law 21, 149 — motion in limine to exclude evidence — no right of State to appeal Defendant's pretrial motion to exclude the results of a test on green vegetable matter on the ground that the test was not conducted in a scientific manner was a motion in limine rather than a motion to suppress pursuant to G.S. 15A-979 since the motion was not based on constitutional objections or on any substantial violation of G.S. Ch. 15A; therefore, the State had no right under G.S. 15A-1445 to appeal from the court's interlocutory order granting the motion.
APPEAL by the State of North Carolina from Davis (James C.), Judge. Order entered 22 May 1979 in Superior Court, GUILFORD County. Heard in the Court of Appeals 16 November 1979.
Attorney General Edmisten by Special Deputy Attorney General Lester V. Chalmers and Assistant Attorney General Joan H. Byers for the State.
W. B. Byerly, Jr., and Walter E. Clark, Jr., for defendant appellee.
Judge VAUGHN dissenting.
Defendant, an attorney, was charged with destroying marijuana, in the possession of Highway Patrolman E. F. Kelley, which was relevant to a criminal charge by the State against John Oren Gallman, III (a violation of N.C. Gen. Stat. 14-221.1, a felony providing for a maximum prison term of five years).
Defendant made a "Motion to Suppress" a test and test results on a green vegetable matter made 10 July 1978 in the laboratory of the High Point Police Department which gave a positive reaction for marijuana. The stated ground for the motion was that the test was not conducted with sound scientific principles and was therefore inaccurate.
The State did not respond to the motion, offered no evidence, and made no argument. Defendant offered the affidavit of W. B. Byerly, Jr., who averred in substance that the test was conducted by use of a commercial chemical kit according to instructions therein, and that the test has no scientific acceptance as an accurate means for identifying marijuana.
The trial court considered defendant's motion as a motion in limine rather than a motion to suppress, found that the test has no scientific acceptance as a reliable means for identifying marijuana, and ordered that the test and test results not be admitted in evidence.
N.C. Gen. Stat. 15A-1445 specifically authorizes the State to appeal from an order of the trial court allowing a motion to suppress under N.C. Gen. Stat. 15A-979. If the motion made by the defendant was a motion in limine to exclude evidence and under the facts does not also qualify as a more limited motion to suppress under N.C. Gen. Stat. 15A-979, the State has no right of direct appeal, from the order, and the appeal must be dismissed. In such a situation the State may petition for a writ of certiorari under Rule 21 of the North Carolina Rules of Appellate Procedure, but this was not done in the instant case.
Article 53, Chapter 15A, General Statutes of North Carolina, as codified, is entitled "Motion to Suppress Evidence" and includes N.C. Gen. Stat. 15A-971 through N.C. Gen. Stat. 15A-979. The initial "Official Commentary" (based on the January 1973 report of the Criminal Code Commission) within the Article and following the title includes the following: "Ruling on a constitutional objection to admission of evidence during trial may require interrupting the course of the trial with a lengthy voir dire. . . . This Article prescribes a pretrial procedure for hearing motions to suppress evidence in the superior court. . . . Considerations of jeopardy required that a decision to suppress evidence precede the commencement of the trial if the State is to be afforded a right to appeal."
N.C. Gen. Stat. 15A-974 in pertinent part provides:
"Upon timely motion, evidence must be suppressed if:
(1) Its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina; or
(2) It is obtained as a result of a substantial violation of the provisions of this Chapter. . . ."
N.C. Gen. Stat. 15A-979(d) provides: "A motion to suppress evidence made pursuant to this Article is the exclusive method of challenging the admissibility of evidence upon the grounds specified in G.S. 15A-974."
The statutes and Official Commentary within Article 53 support the conclusion that the State can appeal from an order allowing a motion to suppress only if the motion to suppress is made under the Article on constitutional objection or substantial violation of Chapter 15A.
In the case sub judice, defendant designated his motion as a "Motion to Suppress" but did not specify that it was an N.C. Gen. Stat. 15A-979 motion. In the order appealed from, the trial court on request of defendant considered the motion to suppress as a motion in limine.
In limine means: "On or at the threshold; at the very beginning; preliminarily." BLACK'S LAW DICTIONARY 896 (4th ed., 1957). The motion has been recognized and tacitly accepted in North Carolina by recent decisions, both civil and criminal, as a proper method for pretrial determination of the admissibility of evidence proposed to be introduced at trial. See State v. Ruof, 296 N.C. 623, 252 S.E.2d 720 (1979); Duke Power Company v. Mom `N' Pops Ham House, Inc., 43 N.C. App. 308, 258 S.E.2d 815 (1979); State v. McCormick, 36 N.C. App. 521, 244 S.E.2d 433 (1978). Such motion comes within the purview of N.C. Gen. Stat. 15A-952(a) which provides: "Any defense, objection, or request which is capable of being determined without the trial of the general issue may be raised before trial by motion." The motion in limine to exclude prejudicial evidence is a useful pretrial procedure for avoiding the dilemma of having prejudice implanted in the minds of the jurors during trial by examination of witnesses, objections, and curative instructions from the trial judge. See generally, Annot., 63 A.L.R.3d 311 (1975); 75 Am. Jur.2d Trial 165 (1974); Rothblatt and Leroy, The Motion in Limine in Criminal Trials: A Technique for the Pretrial Exclusion of Prejudicial Evidence, 60 Ky. L.J. 611 (1972); Comment, The Motion In Limine, 27 U. Fla. L. Rev. 531 (1975). We find no merit in the contention of the State that the trial court had no authority to suppress the evidence because defendant did not assert as grounds for suppression a constitutional objection or substantial violation of Chapter 15A as required by N.C. Gen. Stat. 15A-974.
It should be noted, however, that though the motion in limine to exclude prejudicial evidence is recognized and accepted in this State, the motion should be made by counsel only in those cases where the proposed evidence is material and substantial and a pretrial ruling is necessary to avoid prejudice at trial or is necessary to the preparation of the case for trial. The grounds for the motion should be clearly stated therein and supported when appropriate by affidavit or other material. A pretrial ruling on the motion is not required unless movant properly supports his claim that prejudice will result if the ruling is delayed until trial. See N.C. Gen. Stat. 15A-952(f).
A ruling on a motion in limine to exclude evidence on grounds other than those specified in N.C. Gen. Stat. 15A-974 is an interlocutory order. In the case sub judice the defendant's motion, though designated a motion to suppress, was not a motion to suppress under N.C. Gen. Stat. 15A-979. The motion was not based on constitutional objections nor on any substantial violations of Chapter 15A. The motion was correctly treated by the trial court as a motion in limine to exclude prejudicial evidence. The substantive question of whether the trial court erred in granting the motion is not now properly before this Court. Since the State had no right to appeal from the interlocutory order, the appeal is
Dismissed.
Judge HILL concurs.
Judge VAUGHN dissents.