State ex rel. Westfall v. Gerhard

REINHARD, Judge. Prohibition. Gary Rawlins was charged with attempted stealing over $150.00 by deceit, a class D felony. On May 27, 1982, the case was assigned to defendant, the Honorable George R. Gerhard, for trial. Before the trial commenced, Rawlins filed a motion in limine requesting that the trial court exclude evidence of telephone conversations between the victim and an unidentified caller, which he anticipated the state would offer. In the motion, Rawlins contends the phone conversations are inadmissible absent identification of the caller, are hearsay and “are not an exception to the hearsay rule either as statements of a co-conspirator or as part of the res gestae.” After hearing argument on the motion, the trial court entered the following order: [T]he court herein gives notice that on Sept. 1,1982, it intends to sustain defendant’s motion in limine, and also grants the state until said date leave to file its application for a writ of prohibition of said ruling on this motion in limine.1 Upon application of plaintiff, we issued our preliminary order. In its brief and in oral argument, the state makes a persuasive case that the telephone conversations are admissible because “their relevance lies in the fact that they were made” rather than whether the statements were true. We need not, however, reach the issue of their admissibility because we have concluded that the preliminary order was improvidently granted. A proceeding in prohibition is distinct and independent of the original action. It is substantially a proceeding between two judicial authorities and is a means by which the superior judicial authority exercises its superintendence over the inferior authority to keep it within the bounds of its lawful jurisdiction. State ex rel. T.J.H. v. Bills, 504 S.W.2d 76, 78 (Mo. banc 1974). [681] Prohibition is an extraordinary remedy to prevent the exercise of extra-jurisdictional power, it is not a writ of right and should not be employed for correction of alleged or anticipated judicial errors, and does not lie for grievances which may be adequately redressed in the ordinary course of judicial proceedings. Knisley v. State, 448 S.W.2d 890, 892 (Mo.1970). State ex rel. Lucas v. Moss, 498 S.W.2d 289 (Mo. banc 1973) is the only writ proceeding cited to us by the state in which an appellate court interfered with a trial court’s evidentiary ruling excluding evidence. In Lucas, the trial court did not believe it could admit evidence of a videotaped deposition. The Supreme Court in making the preliminary writ absolute stated: The proposed action by the trial court was not an exercise of that court’s discretion with respect to the admissibility of evidence in the ordinary sense but rather a refusal to entertain the question of the admissibility of the videotape and was premised on the belief that the existing statute and court rules forbade the use of videotape at deposition as a matter of law. The court considers this matter to be one where the public interest in the prompt administration of justice demands a determination of the question .... (emphasis added). It is conceded the trial court had subject matter and personal jurisdiction in this cause, and has not exceeded its jurisdiction by entertaining a motion in limine. The trial court’s ruling on this issue involves the admissibility of evidence in the “ordinary sense” and is a ruling which a trial court must make numerous times in the trial of a cause. The orderly trial process would be severely disrupted if we establish a pattern of interfering in evidentiary rulings by the trial courts. In these circumstances a writ of prohibition is not appropriate. Moreover, a motion in limine is: nothing more or less than a highfalutin motion to suppress designated testimony or evidence. However, sustension of such a motion does not per se work as a permanent damnation of the evidence sought to be suppressed. Neither does sustension prevent the trial court from later changing its mind. The pretrial ruling is interlocutory only. Additional information or trial-produced evidence may prompt the trial court to alter its pretrial ruling by admitting the previously objected-to testimony. State v. Riggs, 586 S.W.2d 447, 449 (Mo.App.1979). (emphasis added). Here, the trial court’s ruling is interlocutory only. The state thus complains of anticipated error and our ruling on the merits would constitute an advisory opinion only. The trial should proceed and the state should present its evidence. The trial court will then have an opportunity to determine the admissibility of the telephone conversations in their proper context. If the court improperly admits the evidence and Rawlins is convicted, the defendant has a remedy of appeal. The state argues that if the trial court improperly excludes the evidence it cannot prove its case, and the state has no right of appeal. The error cannot be redressed in the ordinary course of judicial proceedings, therefore, the state asserts prohibition is the appropriate remedy.2 Section 547.210 RSMo.1978 and Supreme Court Rule 30.02 provide that the state may only appeal in certain limited circumstances, not applicable here. To grant the state relief in this case would be to circumvent this established and time-honored rule of law in Missouri which has served us well through the years. The preliminary order in prohibition, heretofore issued, is quashed. STEWART, C.J., concurs. DOWD, J., dissents in separate opinion. Footnotes [1] We have seen an increasing use of this form of orders by the trial courts. We do not recommend it. When a motion is before the court it should rule on the motion and not indicate a conditional intention to rule in the future. [2] A writ of prohibition may be the appropriate remedy for the state in some circumstances when the state does not have a right of appeal. See, State ex rel. Westfall v. Campbell, 637 S.W.2d 94 (Mo.App.1982); State ex rel. Martin v. Berrey, 560 S.W.2d 54, 59 (Mo.App.1977).