By Judge Stan Billingsley (Ret.)
Banks v. Commonwealth Of Ky. (Ky., 2010) (No citation available) (Note difference between an objection raised during opening statement and during the trial.)
The Commonwealth introduced evidence that Appellant’s children were found hungry and that their home was in disarray, with animal excrement and urine throughout, and marijuana and drug paraphernalia in the living room. Appellant did not object to this evidence, but had unsuccessfully objected to discussion of it in opening statement.
Appellant’s objection to the Commonwealth’s discussion of the poor living conditions in opening statement was inadequate to preserve any error with regard to admission of such evidence. Without delving into the precise requirements of the contemporaneous objection rule, it suffices to say that to preserve an evidentiary error, a party must object to the admission of evidence. See RCr 9.22. Opening statements are not evidence, Morgan v. Commonwealth, 189 S.W.3d 99, 114 (Ky. 2006), and thus an objection thereupon fails to preserve an evidentiary error.
This result is clear in light of the broader latitude afforded to parties in their discussion of the evidence during opening statement. Id. A court may properly permit discussion, offered on a good faith basis in opening, of evidence that is ultimately inadmissible. See Freeman v. Commonwealth, 425 S.W.2d 575, 578 (Ky. 1967) (“Counsel has the right to direct the attention of the jury to all facts and circumstances that he in good faith believes will be allowed to develop in the evidence.”). Consequently, the overruling of an objection made during opening is not necessarily dispositive of the admissibility of the same subject matter in the form of evidence. To give the trial court an adequate basis for evaluating its admissibility, therefore, a party must object to the admission of evidence at the time it is presented.2
Due to Appellant’s failure to properly preserve this matter, it is reviewed solely for palpable error. For an error to be palpable, and thus reversible, it must result in a manifest injustice. Martin v. Commonwealth, 207 S.W.3d 1, 3
Lanham v. Com., 171 S.W.3d 14 (KY, 2005)
The Commonwealth claims that Appellant did not preserve this issue because he did not object to the unedited tape during trial. Appellant cites to Tucker v. Commonwealth,2 where we held:
While this Court has approved the use of motion in limine as a means of obtaining pretrial rulings concerning the admission and exclusion of evidence, we have not repealed the contemporaneous objection rule.
One claiming error may not rely on a broad ruling and thereafter fail to object specifically to the matter complained of. When trial counsel is aware of an issue and fails to request appropriate relief on a timely basis, the matter will not be considered plain error for reversal on appeal.3
Despite the fact that KRE 103(d), which was in effect at the time Tucker was rendered, states that a “motion in limine resolved by order of record is sufficient to preserve error for appellate review,” our decisions have increasingly read Tucker, which did not cite the recently enacted KRE 103(d), in an expansive manner.4
This expansive reading of Tucker has come under increasing criticism.5 Such criticism is not a sufficient reason for us to overrule a nearly decade old case. However, Tucker also conflicts with some of our other cases that have held that a motion in limine overruled by an order of record is sufficient under KRE 103(d) to preserve an error.6 These cases have all been rendered since the enactment of the rules of evidence, unlike the cases upon which Tucker is based. Also, as Tucker’s critics have pointed out, and as a quick perusal of the rule reveals, Tucker and its progeny have exceeded the express language of KRE 103(d). As such, there is a clear conflict between some of our decisions and the express language of the rule and among our own cases since the introduction of the rule. This conflict has, no doubt, confused the bar and merits our reconsideration to remedy the inconsistency in our law.
Though Tucker is correct in that we have not repealed the contemporaneous objection rule, it is clear from the language of KRE 103(d) that the rule has, in effect, been modified. Also, as observed in The Study Committee Notes to the Kentucky Rules of Evidence, also known as the Commentary, KRE 103(d) “eliminates [the] doubt [as to whether an error has been preserved by a motion in limine] by providing that motions in limine resolved by order of record are sufficient to preserve errors for appellate review.”7 While the Commentary is not binding on this Court, it is useful in interpreting the rules.8 More importantly, however, we cannot ignore the plain language of the rule.9 Thus, we resolve the conflict in our case law in favor of the plain language, and to the extent that Tucker and its progeny may contradict the plain language of the rule, they are overruled.
This is not to say, however, that a blanket motion in limine is sufficient to preserve an error for appellate review. As Tucker correctly observed:
An objection made prior to trial will not be treated in the appellate court as raising any question for review which is not strictly within the scope of the objection as made, both as to the matter objected to and as to the grounds of the objection. It must appear that the question was fairly brought to the attention of the trial court. . . . One claiming error may not rely on a broad ruling and thereafter fail to object specifically to the matter complained of.10
Our other cases have similarly limited KRE 103(d). For example, in Davis v. Commonwealth,11 we noted that a motion in limine challenging “the presentation of any evidence supporting the Commonwealth’s theory of the case without specifying any other reason why a particular fact should be suppressed”12 was insufficient to preserve objection to the introduction of specific items of evidence because they were not addressed by the broad objection embodied by the motion in limine. We noted, in what amounts to an extension and clarification of the rule in Tucker, that:
Usually, a motion in limine requests an advance ruling on a specific evidentiary fact, not a theory of the case requiring proof by multiple facts. Where a party specifies what evidence should be suppressed and why, the question has been “fairly brought to the attention of the trial court” and the trial court’s ruling preserves the issue for appeal. In that scenario, the opponent of the evidence need not object when the same evidence is offered at trial. However, the same principle does not apply to broad, generic objections.13
More recently, in Metcalf v. Commonwealth,14 we held that a specific motion in limine properly preserves an issue for appeal and we explained the intersection of Davis and Tucker:
As explained in Davis v. Commonwealth, 147 S.W.3d 709, 722-23 (Ky.2004), Tucker applies when the motion in limine is directed at a general area of inquiry, sometimes referred to as a “class of evidence,” Robert G. Lawson, The Kentucky Evidence Law Handbook, § 1.10[f], at 36 (4th ed. LexisNexis 2003), not a particular evidentiary fact. Appellant’s motion in limine and the trial court’s rulings thereon covered testimony regarding particular evidentiary facts and thus properly preserved all three of these issues for appellate review.15
Some commentators have noted that such a limited reading of KRE 103(d) contradicts KRE 103(a)(1)’s allowance of general objections as sufficient to preserve an error for appeal.16 Such a reading, however, is supported by the Commentary:
It should be noted a motion in limine would not be sufficient to preserve errors for appellate review unless it provided the trial court with the type of information which would be required to preserve errors at trial (i.e., information sufficient to satisfy the requirements of subdivision (a) — the specific ground for the objection being made and the substance of any evidence being offered).17
This is because of the nature of a motion in limine: it is primarily a pretrial tool aimed, in essence, at “heading off at the pass” the introduction of evidence. KRE 103(a)(1) allows a general contemporaneous objection during trial to preserve an error for review because it is usually clear from the context what the grounds for the objection are (and if they are not, the rule provides that the trial judge can ask for grounds).
But motions in limine cannot function in this manner because they are not contemporaneous with the introduction of the evidence that they are aimed at. If motions in limine are not required to be specific, then KRE 103(d) could be turned into a catch-all, allowing the preservation of all manner of errors through the artful use of vague, broad motions in limine. This is clearly not what was intended by the rule.
Thus, we reaffirm the portion of Tucker, as extended by Davis and Metcalf, that requires a motion in limine to specify the evidence objected to in order to preserve an error for appeal.
KRE 103 Rulings on evidence
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and
(1) Objection. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Motions in limine. A party may move the court for a ruling in advance of trial on the admission or exclusion of evidence. The court may rule on such a motion in advance of trial or may defer a decision on admissibility until the evidence is offered at trial. A motion in limine resolved by order of record is sufficient to preserve error for appellate review. Nothing in this rule precludes the court from reconsidering at trial any ruling made on a motion in limine.
(e) Palpable error. A palpable error in applying the Kentucky Rules of Evidence which affects the substantial rights of a party may be considered by a trial court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
Effective: May 1, 2007