Greensboro’s Top Felony Trial Lawyer Answer Questions Regarding How Do You Win A Felony Jury Trial? By Legal Motions!
Two of Garrett, Walker, Aycoth and Olson’s felony trial attorney have trials this week in the Guilford County Superior Court. As such, it is an excellent time to reflect upon some of the procedural issues when preparing for a trial. Many trials are not won because of the facts presented, but rather because of the skill of the Greensboro trial attorney in filing the appropriate motions.
Any legal motion made must be made during a hearing or trial, or in writing, state the legal grounds asserted, and state the relief or order sought. If the motion is in writing, it must be served upon the opposing counsel or the defendant if unrepresented. Service may be by mail or in person-delivery. Motions must be filed with the court, along with a proper certificate of service.
Issues that can be resolved without hearing the full general issue before the court may be raised by motion.
In superior court, there are several common motions that must be made at or prior to the arraignment. These motions include: continuances (N.C.G.S. 15A-952(g) lists factors a judge should consider upon the request for a continuance); venue changes; special venire under N.C.G.S. 9-12 or N.C.G.S. 15A-958; dismissals pursuant to N.C.G.S. 15A-955; dismissals for improper venue; pleading issues, including dismissals for failure to plead under N.C.G.S. 15A-924(e), strike pleadings under N.C.G.S. 15A-924(f), and bills of particulars controlled by N.C.G.S. 15A-924(b) or N.C.G.S. 15A-925; severance, pursuant to N.C.G.S. 15A-927; and joinder of related offenses following N.C.G.S. 15A-926(c).
There are different time limits depending on whether a written motion for arraignment was filed or not. A written request sets the arraignment concurrent with the trial, in which case the motions must be filed on or before 5:00 P.M. the Wednesday prior to the start of the scheduled trial court session (usually the following Monday, unless interrupted by a court holiday). If no written request for arraignment was filed, then the above listed motions must be filed not later than 21 days from the date of the return of the bill of indictment. Extensions may be made at the trial judge’s discretion.
Exceptions to the time limitations include motions pertaining to jurisdiction or failures of the pleading to charge an offense. These motions may be made at any time. Sanctions for failure to timely file the motions listed above constitutes a waiver of motion. A judge has discretion to waive this failure to timely file motions, except regarding venue issues.
In district court, motions should be made upon arraignment or during the course of the trial. Driving while impaired cases are the exception, and the specific rules regarding those offenses are available in the NCBAR Association publication, “The ABCs of DWI,” by Chad Garrett and Joel Oakley. Upon appeal and trial de novo in superior court, the general superior court rules of N.C.G.S. 15A-952 control.
Motions to dismiss are the most common considered legal motions argued before a court. The core motions to consider in every case, as contemplated by N.C.G.S. 15A-954, include: unconstitutional statutes, either on its face or as applied to the defendant; the statute of limitations has run; the defendant has been denied a speedy trial; the defendant’s constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant’s preparation of the case that there is no remedy but to dismiss the prosecution; the prosecution triggers a double jeopardy violation; another jurisdiction in North Carolina has charged the defendant with a valid and pending criminal pleading alleging the same offense; an issue of fact or law necessary for prosecution has been adjudicated in a prior action between the parties; there is no jurisdiction; immunity was granted; the pleading fails to charge an offense; the death of the defendant.
It is rare that a criminal case does not at least require consideration of a suppression motion. These motions are evidentiary in nature, usually requiring testimony, and are often determinative of the case. Suppression motions must be accompanied by a factual affidavit.
Consideration should be given to any factual and legal issue that may support a motion to suppress. Essential areas of inquiry include physical evidence, confessions, statements, identifications, Constitutional issues, and whether any evidence was obtained in violation of the Criminal Procedure Act. Evidence must be suppressed if its exclusion is required by either Always review the following to see if they appear in your fact pattern: search warrants and illegal searches; arrest warrants; illegal confessions or admissions; illegal identification procedures; and any evidence obtained as a result of substantial statutory violations.
Motions in limine must be filed in writing, are usually filed the day before trial. These motions request that certain evidence be excluded, not offered, or not referred to at trial. Essentially, a motion in limine is designed to prevent the jury from hearing prejudicial facts or evidence. Examples of common motions include requests to preclude 404(b) or other negative character evidence, inflammatory pictures, illustrations or exhibits, hearsay, references to the defendant’s silence, exclusion of the defendant’s statements not timely disclosed by the prosecution, or other overly prejudicial or irrelevant evidence.
The moving party typically has the burden of proof. Constitutional violations however, typically place the burden on the State.
Relevant Statutory Authority
9-12 Supplemental jurors from other countries.
15A-903 Disclosure of evidence by the State – Information subject to disclosure.
15A-924 Contents of pleadings; duplicity; alleging and proving previous convictions;
failure to charge crime; surplusage.
15A-925 Bill of particulars.
15A-926 Joinder of offenses and defendants.
15A-927 Severance of offenses; objection to joinder of defendants for trial.
15A-951 Motions in general; definition, service and filing.
15A-952 Pretrial motions; time for filing; sanction for failure to file; motion hearing
15A-953 Motions practice in district court.
15A-954 Motion to dismiss – Grounds applicable to all criminal pleadings; dismissal
of proceedings upon death of defendant.
15A-955 Motion to dismiss – Grounds applicable to indictments.
15A-956 Deferral of ruling on motion to dismiss when charge to be reinstituted.
15A-957 Motion for change of venue.
15A-958 Motion for a special venire from another county.
15A-959 Notice of defense of insanity; pretrial determination of insanity.
15A-974 Exclusion or suppression of unlawfully obtained evidence.
These statutes are the tools top Greensboro trial lawyers use to win at trial, protecting their clients freedom and liberty. If you face a felony or misdemeanor jury trial, contact us at 336-379-0539. Garrett, Walker, Aycoth and Olson are here to help!