IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS Plaintiff-Appellee. vs. TIFFANY C. HUBBARD Defendant-Appellant

Transcription

1 No A IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS Plaintiff-Appellee vs. TIFFANY C. HUBBARD Defendant-Appellant REPLY BRIEF OF APPELLANT Appeal from the District Court of Douglas County, Kansas Honorable Sally Pokomy, Judge District Court Case No. 13 CR 26 Carol Longenecker Schmidt, #24828 Kansas Appellate Defender Office Jayhawk Tower 700 Jackson, Suite 900 Topeka, Kansas (785) (785) Fax Attorney for the Appellant

2 11 Table of Contents Issue II: The district court violated Ms. Hubbard s constitutional right to present a full and complete defense by granting the State s motion in limine...1 State v. Beard, 273 Kan. 789, 46 P.3d 1185 (2002)...1 Brunett v. Albrecht, 248 Kan. 634, 810 P.2d 276 (1991) State v. Evans, 275 Kan. 95, 62 P.3d 220 (2003) Carrick v. McFadden, 216 Kan. 683, 533 P.2d 1249 (1975)... 1 State v. Deal, 271 Kan. 483, 23 P.3d 840 (2001)...1 State v. Gibbons, 256 Kan. 951, 889 P.2d 772 (1995)... 1

3 1 Issue II: The district court violated Ms. Hubbard s constitutional right to present a full and complete defense by granting the State s motion in limine. Introduction In her brief, Ms. Hubbard argued that the district court erred in granting the State s motion in limine, which excluded relevant impeachment evidence that (1) Beltch had sought an attorney to assist with reducing his federal prison sentence, and (2) Beltch had participated as a cooperating individual in another similar criminal case. Appellee s Brief, pp The State responded, arguing that because Ms. Hubbard did not move the district court to reconsider its ruling or otherwise object at trial, that this issue is not preserved for review. Appellee s brief, pp Because a party is only required to make an adequate proffer that sufficiently outlines the substance of the evidence the party seeks to introduce, and Ms. Hubbard did so in the present case, this issue is preserved for review. Analysis In order to preserve a limine issue for appeal, the party being limited by the order bears the responsibility of proffering sufficient evidence to the district court to preserve it for appeal. State v. Beard. 273 Kan. 789, 808, 46 P.3d 1185 (2002); Brunett v. Albrecht, 248 Kan. 634, 640, 810 P.2d 276 (1991). The purpose of a proffer is to make an adequate record of the evidence to be introduced. State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003) (citing Carrick v. McFadden, 216 Kan. 683, 688, 533 P.2d 1249 [1975]; State v. Deal, 271 Kan. 483, 490, 23 P.3d 840 [2001]). The party seeking to admit evidence must make known the substance of the expected evidence in a proffer. State v. Gibbons, 256 Kan. 951, 959, 889 P.2d 772 (1995).

4 2 The State premises its argument that this issue is not preserved for appeal on the rule that a limine order is a temporary protective order that is subject to change during the trial; to predicate error thereon it will be necessary to again present the material or proffer the evidence during trial on a motion to reconsider. Appellee s brief, p. 13 (quoting Bmnett, 248 Kan. at 640). But, the Kansas Supreme Court has more recently held that where defense counsel sufficiently proffered the substance of the evidence that he sought to introduce at trial, but did not object at trial, that an adequate record existed for appellate review. Evans, 275 Kan. at 101. In Evans, the State charged the defendant with first-degree murder for the shooting death of the victim. Evans. 275 Kan. at 97. Before trial, the State moved to exclude evidence o f circumstantial evidence that another person had shot the victim. Evans, 275 Kan. at 97. At the limine motion hearing, defense counsel stated that witnesses would testify that immediately after the shooting, they saw another man with a gun and did not see the defendant with a gun. Evans, 275 Kan, at Defense counsel could not confirm, though, that there would be a witness who could testify that he or she saw the other man shoot the victim. Evans, 275 Kan. at 98. The district court granted the State s motion, excluding circumstantial evidence that another person had shot the victim. Evans, 275 Kan. at 98. Defense counsel did not move the district court to reconsider its decision or object at trial. Evans. 275 Kan. at On appeal, the defendant argued that the district court had erred in granting the State s motion in limine. Evans, 275 Kan. at The Court first reviewed whether the limine issue was preserved for review, finding that defense counsel s description of how certain witnesses would testify produced an adequate record for appellate review:

5 The substance of the evidence [the defense] sought to introduce at trial was sufficiently set forth before the trial court. Furthermore, because an adequate proffer was made, defense counsel's failure to object at trial to the exclusion of the evidence was not necessary to preserve the issue for appeal. Evans. 275 Kan. at 101. Similarly, here, although defense counsel did not object at trial, defense counsel made an adequate proffer that preserved this issue for appeal. At the motion hearing, defense counsel stated several times that he wished to question Beltch about whether he or his father had contacted an attorney in order to reduce his federal prison sentence, specifically stating that he wished to ask Beltch, And in addition to hoping that your assistance in this case will help in not getting new charges filed, you re also - - you or your father have inquired o f private attorneys to help in that goal? (R. II, 14). Thus, the defense counsel proffered the exact question that he wished to ask Beltch at trial. Further, in regard to Beltch s participation as a cooperating individual in another factually-similar criminal case, the district court stated on the record that it was the trial judge for the other case and outlined Beltch s role in that case. (R. II, 17-18). Thus, the trial court had sufficient first-hand knowledge about the possible substance of Beltch s testimony regarding his involvement in the other case. Just as in Evans, in the present case, because [t]he substance of the evidence [the defense] sought to introduce at trial was sufficiently set forth before the trial court[,] defense counsel s failure to object at trial does not preclude appellate review of this issue. Evans, 275 Kan. at 101. Conclusion In the present case, when ruling on the State s motion in limine, the district court knew the exact question that defense counsel sought to ask Beltch and the substance of

6 Beltch s potential testimony regarding his involvement in another criminal case. Because defense counsel sufficiently set forth the substance of the evidence he sought to introduce at trial, an adequate record exists for appellate review. Thus, this Court can reach this issue. Respectfully submitted, Carol Longenecker Schmidt, #24828 Kansas Appellate Defender Office Jayhawk Tower 700 Jackson, Suite 900 Topeka, Kansas (785) (785) Fax adoservice@sbids.org Attorney for Appellant Certificate of Service The undersigned hereby certifies that service of the above and foregoing brief was made by mailing two copies, postage prepaid, to Charles E Branson, Douglas County Attorney, 111 E. 11th Lawrence, KS 66044; and by ing a copy to Derek Schmidt, Attorney General, at ksagappealsoffice@ag.ks.gov on the 26th day of May, Carol Longenecker^chmidt"#24828