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State v. Mollman12/23/2003
Now, Mr. Davis (defense counsel), in Lamont the Supreme Court remanded the case to the trial court and indicated that it was necessary to present authority , it wasn't a remand with direction to allow it, but rather requiring the defense to make an offer of proof. Now, in your response to the plaintiff's motions in limine, the Court wants a very specific offer of proof from you regarding the expert testimony you intend to present and how it would be appropriately introduced at trial.
After argument, the court inquired of defense counsel "how could failure to have a motorcycle endorsement be an independent intervening cause in this case?" Defense counsel responded, "a motorcycle endorsement in and of itself suggests that an individual is competent to operate a motorcycle." Defense counsel then concluded that without a motorcycle endorsement, "negligent and uninformed operation of that vehicle would likely be a proximate cause of any accident[.]" The trial court found:
[A]s presented in the offer of proof [lack of an endorsement], is completely speculative as to this individual decedent's ability and as to the facts that occurred on the evening in question. It provides no relevant testimony. It has no connection to the element that the negligent conduct of-the negligent driving of Mr. Mollman was the proximate cause of the death of Gary Severson.
(Emphasis supplied.) On the second day of trial, Defendant made a second offer of proof on the endorsement issue and was again denied. In the second offer of proof, the defense argued that allowing the decedent's wife to testify that the decedent "did love that bike" in response to a question about his hobbies, led the jury to the conclusion that he was a competent rider. The defense argued that the statement by the decedent's wife opened the door to the question of decedent's competence as a rider and therefore the defense should be entitled to "correct this misleading impression."
. In Lamont, this Court remanded the case to the trial court with the instruction that it was "incumbent upon Lamont to present authority and clearly state why such questioning should be allowed." Lamont, 2001 SD 92 at , 631 NW2d at 609. We went on to require that "Lamont must show that the victim's intoxication level is related to the issue of proximate cause, not contributory negligence." Id. In this case, Defendant was allowed to make two offers of proof. At neither time did counsel show how decedent's lack of endorsement constituted "a new and independent cause, which itself produce[d] the injury." Braun, 2002 SD 67 at , 646 NW2d at 740 (citing Schmeling, 77 SD at 18, 84 NW2d at 564). There simply was no evidence of any negligence on the part of Severson to affect proximate cause. In addition, it can be argued that the trial court did not abuse its discretion in this ruling because it had previously ruled that Mollman's driving on a suspended license was also inadmissible. Nor did counsel show that the lack of endorsement so "entirely supersede[d] the operation of the defendant's negligence that it alone, without his negligence contributing thereto, produce[d] the injury." Id. Unlike Lamont, if this case were reversed and remanded on this issue, Defendant would be given another "bite at the apple," for he was given ample opportunity to show that the lack of endorsement was an intervening/superseding cause of the decedent's death and he failed to do so.
. Defendant failed to establish that the trial court abused its discretion in granting the State's motion to preclude evidence of the lack of motorcycle endorsement.
. 2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE STATE TO SHOW THE JURY A PHOTO OF THE DECEDE
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