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Hall v. Big Sky Lumber11/2/1993
Monthye issued Normandin a citation at the scene for "inadequate or defective brakes." Normandin made a motion in limine that evidence of this citation be excluded at trial. The court granted Normandin's motion. Normandin's counsel made a statement during his closing arguments that "if there were any defects or problems with that braking system at all, you can be sure that Patrolman Monthye or Patrolman Jacobson or somebody would have told you about that." Following the argument, Hall's counsel sought permission of the court to enter into evidence the citation Normandin had been given at the scene for defective brakes. The court denied the request. Hall then moved for a mistrial which the court also denied.
Hall argues that his case was prejudiced by defense counsel's statement to the jury and by the failure of the court to admit the citation. Normandin argues that the comment objected to by Hall was taken out of context, and that when viewed in the proper context, the sentence was proper.
The objectionable statement was made within the following context of the closing argument:
The undisputed evidence shows that the truck was in compliance with all brake statutes. If it wasn't, it was examined by a highway patrolman within about 45 minutes of the time of the accident. It was impounded by the highway patrol after the accident for examination. If there were any defects or problems with that braking system at all, you can bet that Patrolman Monthye or Patrolman Jacobson or somebody would have told you about that. There is no problems with that braking system other than the orange impact damage.
District courts have great discretion in the admittance of evidence and we will not overturn a court's decision unless the court abused its discretion. Miranti v. Orms (1992), 253 Mont. 231, 833 P.2d 164. Hall argues that it is unfair for Normandin to seek a motion in limine to prevent evidence of the initial citation and then tell the jury that if any defect had been found it would have been a part of Monthye's testimony. The citation itself is not indicative of anything but that the trailer brakes failed. Evidence of the issuance of a citation is not determinative of the cause of an accident. Hart-Anderson v. Hauck (1989), 239 Mont. 444, 781 P.2d 1116. We conclude that it was properly excluded.
However, the subsequent argument by defense counsel to the jury is improper legal maneuvering. Defense counsel cannot ask to have evidence excluded and then argue that if the evidence existed it would have been admitted. Such argument should not be made on retrial.
We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER, GRAY, NELSON and HUNT concur.
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