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COMMON MOTIONS AND NOTICES IN SUPERIOR COURT

Table of Contents I. Principles for All Motions-p.3

II. Immediate Motions-p.3

A. Request for Voluntary Discovery/Motion for Discovery B. Motion to Compel C. Request for Arraignment

III. Pre-Arraignment Motions-p.5

A. Motion to Continue B. Motion for Change of Venue C. Motion to Dismiss for Improper Venue D. Motion for Special Venire E. Motion to Dismiss for Grand Jury Issues F. Motion to Dismiss for Defective Pleading G. Motion to Strike Inflammatory Pleading H. Motion for Bill of Particulars I. Motion for Joinder/Severance

IV. Other Pre-trial Motions and Notices with Deadlines-p.10

A. Motion to Suppress B. Motion to Recuse Trial Judge C. Notice of Defenses D. Chapter 90 Notice and Demand E. Chapter 20 Notice and Demand F. Notice of Expert Testimony G. Notice of Intent to Use Residual Hearsay H. Notice of Intent to Use Convictions Older than 10 Years

V. Common Motions without Deadlines-p.14 A. Motion for Bond Reduction/Modification B. Motion/Request for Speedy Trial C. Ex Parte Motion for Expert Funds D. Ritchie Motion for Protected Records E. Motions in Limine F. Motion to Determine Capacity to Proceed

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G. Motion/Notice to Preserve Evidence H. Motion to Extend Motions Deadline

VI. Trial-Specific Motions-p.19

A. Motion for Recordation B. Motion for Sequestration C. Witness Lists D. Motion/Request for Jury Instructions E. Motion for Individual Voir Dire of Jurors F. Motion to Record Race of Potential Jurors G. Motion for Mistrial H. Motion to Poll Jury I. Motion to Allow Notetaking by the Jury

VII. Other Motions to Consider-p.22 A. Motion for Notice of 404(b) Evidence B. Motion for Sanctions C. Motion for Voir Dire of Expert or Incompetent Witnesses D. Motion to Appear and Testify Before the Grand Jury E. Notice of Assertion of Rights F. Motion for Remote Testimony G. Motion for Deposition H. Motion for Trial Transcript I. Post-conviction Motions

**N.B.-This guide is intended as a primer on typical defense motions and notices in Superior Court. It is not meant to be an exhaustive list of all possible motions, nor as a comprehensive guide to the motions that are listed. Rather, it is a reference guide to the basic principles, authorities and timelines of common defense motions at the trial level. The format of the guide is to list the type of motion, followed by the statutory or constitutional authority, with notes and pointers on the subject thereafter.

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J. Principles for All Motions- 15A-951-Various statutory and constitutional grounds

-Motions should be made in writing, state grounds with specificity, cite legal authority, request specific relief, be signed and filed with clerk, and be served on the opposing party, with a signed certificate of service attached.

-Some particular motions have special timing rules, or require an affidavit in support. It is vital to know these statutory rules, as well as local rules and practices. Motions with essential deadlines include motions to suppress, requests for arraignment, all pre-arraignment motions, discovery motions, and motions to recuse, among others. All motions should be made pre-trial, with the exception of certain in-trial motions.

-There must be a ruling on motion or the issue is waived on appeal. A written order, signed by the judge, will ensure that rulings on pre-trial motions are memorialized in the court file.

-Object to adverse rulings and object again at trial or the issue is waived on appeal. If a ruling on a motion limits the ability to present evidence or explore a topic, an offer of proof must be made to preserve the issue. Where possible, have the witness sworn and questioned outside the presence of the jury. If that is not possible, counsel should indicate why and forecast the substance of the evidence on the record.

-Pursuant to 15A-952, the potential scope of motions is very broad. Any defense, objection or request capable of being decided without ruling on the merits of case may be addressed via motions.

-Practice Tips: In drafting motions, weigh making a strong legal argument with brevity concerns. Motions are a way to improve the posture of a case, obtain more information, narrow issues, improve a plea offer, and demonstrate your dedication and ability to the client and the State. Consider submitting briefs in support of complex motions. Where possible, constitutionalize every argument under both the state and federal constitutions. Be creative! For significant or unusual motions, consider the need to formally present evidence at a motion hearing.

-See also Chapter 13 of the NC Defender Manual, Vol. 1 (Motions Practice)

II. Immediate Motions- File these motions as soon as possible upon appointment and/or transfer of the case to Superior Court.

A. Request for Voluntary Discovery/Alternative Motion for Discovery- 15A-902; 5th and 14th Amendments; Section I, Articles 19, and 23 of the N.C. Constitution; Brady v. Maryland, 373 U.S. 83 (1963) and progeny cases.

DEADLINE: This request or motion must be filed within 10 days of probable cause hearing, or after waiving hearing. If no probable cause hearing or waiver occurs, it should be filed within 10 days of service of indictment, consent to bill of information or appointment of counsel, whichever is later.

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- The request is filed in Superior Court. A Request for Voluntary Discovery must be filed before filing a Motion to Compel.

-Reciprocal discovery obligations-15A-902(e) and 905-Note the requirement that you must give notice of defenses (discussed below) and provide reciprocal discovery upon State’s request or upon order of the court. The State usually makes this request with the same document by which you get the notices of intent to use evidence subject to suppression deadlines or by which they have the defense acknowledge receipt of discovery.

- Practice Tips: Always argue statutory and constitutional grounds. Tailor these requests and motions to the particular type of case and issue. Think about what is needed before filing the first request/motion. The deadline above arguably applies to statutory discovery only, not constitutional discovery. Once you receive discovery, consider filing more specific motions for discovery or motions to compel on anything else needed. Consider asking in writing informally first, then file a Motion to Compel or for Supplemental Discovery. A combination Request for Voluntary Discovery/Alternative Motion for Discovery is a common way of condensing the steps of the discovery process. Examples of specific items of discovery to request include: Dispatch/911 recordings, Dash or Body Camera video, Records of Drug/Alcohol Treatment; Medical Records; Confidential Informant File or Identity; Reveal Deals/Concessions; LEO personnel file; To have interviews reduced to writing and disclosed per State v. Shannon, 182 N.C. App. 350 (2007); Prior Trial Transcript; Basis for Expert Opinion; etc.

-See also Chapter 4 of the NC Defender Manual, Vol. 1 (Discovery)

B. Motion to Compel- 15A-902- 5th, 6th, and 14th Amendments; Article I, Sections 19 and 23 of the N.C. Constitution.

DEADLINE: If the State fails to respond or responds inadequately, this motion may be filed 7 days after filing a Request for Voluntary Discovery. It may be filed anytime by stipulation of the parties or for good cause.

Practice Tips: When filing a motion to compel, reference the earlier Request/Motion, and consider attaching any correspondence of informal requests for the information, any prior court order on discovery, or any transcript of previous hearings on the issue. Constitutionalize arguments, such as due process/Brady, the right to effective representation, the right to prepare and present a defense, the right to confront, etc.

-See also Chapter 4 of the NC Defender Manual, Vol. 1 (Discovery)

C. Request for Arraignment-15A-941

DEADLINE: This must be filed within 21 days of return of indictment or it is waived. If the defendant is unrepresented, the deadline is within 21 days of service of the indictment. This request, if timely, allows the defendant to assert right to object to trial the same week as arraignment, and extends the deadline for pre-arraignment motions (see Section III, infra).

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Practice Tip: Request arraignment in all cases in order to extend motions deadlines and to give the defense more control over the calendaring of the trial. If no discovery is received before date of arraignment, move to continue the arraignment hearing.

III. Pre-Arraignment Motions –15A-952

DEADLINE: Timing rules depend on whether a timely Request for Arraignment was filed (see Section II.C., supra).

-If a Request for Arraignment was filed and arraignment is held before trial, all of the motions under this section are due before arraignment. If a Request was filed but arraignment is not held before trial, the deadline is 5p.m. on the Wednesday before trial. If no Request is filed, these motions are due 21 days after return of the indictment.

-If the motions under this section are not filed within the timeline, they may be waived. The court may grant relief from waiver on any motion except a Motion to Dismiss for Improper Venue (see III.C., infra).

-Although not specifically addressed within this section, a motion to dismiss an indictment for prosecutorial vindictiveness is arguably subject to this timeline per State v. Frogge, 351 N.C. 576 (2000).

A. Motion to Continue-15A 952(g)- 5th, 6th and 14th Amendments; Sections 19 and 23 of the N.C. State Constitution.

DEADLINE: Technically, a motion to continue should be filed prior to arraignment (see Section III, supra). Practically, these motions may be filed whenever the need arises, but as a general rule, they should be filed immediately upon counsel realizing the need for a continuance.

-Consider including an affidavit with specific factual showing of need. The court will consider the ends of justice, the complexity of the case, the impact on any child witnesses, and the availability of other witnesses, among other factors.

Practice Tips: Make these motions as early as possible and explain in detail why it is necessary for trial to be continued. Motions to continue are reviewed on abuse of discretion standard if no constitutional grounds are asserted in the motion. Constitutional grounds to support a continuance may include the right to prepare and present a defense, the right to effective representation, the right to confrontation, the right to counsel, and due process. Where a continuance is sought to procure a witness, a record should be made about the expected testimony of the missing witness and how it would be useful to the defendant. Motions to continue are frequently made and granted after arraignment, despite the deadline above. However, a timely motion, substantiated with a specific factual basis and asserting constitutional grounds, is more likely to result in relief. Many jurisdictions have specific local rules on continuances for both administrative and trial settings and counsel should be familiar with them.

-See also Chapter 13.4A of the NC Defender Manual, Vol. 1 (Motion for Continuance).

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B. Motion for Change of Venue-15A-957- 5th and 14th Amendments; Article I, Sections 18 and 19 of the N.C. Constitution.

DEADLINE: See Section III, supra (Pre-Arraignment Motions Deadline)

-The motion must allege that the defendant is unable to receive a fair trial due to prejudice in the jurisdiction. The court will consider the extent of bias in the community, the proposed new venue, the time and resources necessary to grant the request, and other potential effects on the parties and court.

Practice Tip: Attach pre-trial publicity, community polling, and any other evidence of bias in community to the motion. The defendant has the burden of proof to demonstrate reasonable likelihood that he or she will not receive a fair trial. State v. Jerrett, 309 N.C. 239 (1983). Parties may stipulate to a change of venue. Where a defendant faces multiple charges in multiple jurisdictions, changing venue to one jurisdiction may be advantageous in order to obtain a global resolution of all charges. A statistician or polling expert may be useful to support the grounds of the motion. As an alternative request for relief, consider asking for a special venire, individual voir dire of the jurors, or possibly a continuance (as a ‘cooling-off’ period).

-See also Chapter 11.3 of the NC Defender Manual, Vol. 1 (Change of Venue).

C. Motion to Dismiss for Improper Venue-15A-924(a)(3) and 15A-952(b)(5)

DEADLINE: See Section III, supra (Pre-Arraignment Motions Deadline)

-This motion is lost if not raised in a timely manner. Unchallenged venue becomes conclusive venue, and the trial court shall not grant relief from a waiver of this motion.

-A Bill of Particulars may be used to identify the county of the offense where it is not identified in the pleading. Some offenses have specific venue rules in the relevant statutes (e.g. G.S. 163-278.27-illegal political campaign contributions). Failure of a charging document to identify venue at all or failure to correctly identify it will not result in dismissal if not challenged in a timely manner.

-If venue is truly improper, a motion to dismiss must be filed before arraignment. Once challenged, the State has the burden to prove proper venue by a preponderance of evidence. State v. Bullard, 312 N.C. 129 (1984).

-See also Chapter 11.2 of the NC Defender Manual, Vol. 1 (Challenging Improper Venue).

D. Motion for Special Venire-9-12; 15A-952(b)(3); 15A-958; 5th and 14th Amendments; Article

I, Sections 18 and 19 of the N.C. Constitution.

DEADLINE: See Section III, supra (Pre-Arraignment Motions Deadline)

- The defendant has the burden to demonstrate the existence of prejudice in the county to a degree that a fair trial would be impossible. State v. Robinson, 355 N.C. 320 (2002).

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-Practice Tips: This motion may be combined with an alternative request to change venue. Practically, moving venue may be preferable to bringing in a special venire from another county.

-See also Chapter 11.4A of the N.C. Defender Manual, Vol. 1 (Special Venire).

E. Motion to Dismiss for Grand Jury Issues -15A-955; see also 9-3; 15A-621-631; 15A-1211;

5th, 6th, and 14th Amendments (especially Equal Protection); Article I, Sections 18 and 19 of the N.C. Constitution.

DEADLINE: See Section III, supra (Pre-Arraignment Motions Deadline)

-These motions include challenges to the array such as improper selection or exclusion of grand jurors, improper selection of the foreperson, that a qualified number of grand jurors did not agree, that all witnesses before the grand jury were unqualified or that the evidence before them was incompetent, as well as fair cross-section issues.

-Information about grand jurors, excluding the content of deliberations, is public record and can be compelled by the defense. State v. Dellinger, 308 N.C. 288 (1983). The manner of challenge is a motion to dismiss or motion to quash the indictment, and challenges to the grand jury are waived if not brought in a timely manner.

Practice Tips: While the grand jury proceedings are secret and not recorded, the clerk of court keeps minutes of the indictments, which are public record and may be reviewed by counsel in investigating potential grand jury challenges. Additionally, the identity of grand jurors is also public record.

-See also Chapter 9.4 of the N.C. Defender Manual, Vol. I (Challenges to Grand Jury Procedures).

F. Motion to Dismiss for Defective Pleadings-15A-924; 5th and 14th Amendments; Article I,

Sections 19 and 23 of the N.C. Constitution.

DEADLINE: See Section III, supra (Pre-Arraignment Motions Deadline)

-These motions apply where the pleadings are defective, such as: failing to charge an offense or an element of an offense; misidentification of victim or defendant; lack of allegation of ownership for certain offenses; date/time/place issues, etc. A proper pleading, at a minimum, must confer jurisdiction on the court and provide notice of the charges to the defendant. Many offenses have specific pleading requirements. Many pleading defects are capable of amendment by the State. The scope of all potential pleading defects is beyond the scope of this guide, but the links below are helpful guides in this area.

-Practice Tips: Think carefully about the timing and remedy of motions under this section. While these motions are listed in the Pre-Arraignment motion section with the attendant deadline, certain pleading defects deprive the court of jurisdiction or are otherwise fatal. Where the defect is fatal, the better practice is to save the objection until after jeopardy has attached. The State may or may not be allowed to re-file depending on the circumstances, but defense counsel is generally better positioned if the motion to dismiss on grounds of a fatal pleading defect is made at trial. Minor defects that are capable of amendment pre-trial can result in a fatal variance at trial.

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-See generally Chapter 8 of the Defender Manual, Vol. I (Criminal Pleadings)

-See also, Jessica Smith, The Criminal Indictment: Fatal Defects, Fatal Variance, and Amendment, ADMINISTRATION OF JUSTICE BULLETIN No. 2008/03 (UNC School of Government, July 2008) for more information on Superior Court pleadings issues and offense-specific pleading requirements, available at http://sogpubs.unc.edu/electronicversions/pdfs/aojb0803.pdf. -See also John Donovan and Amanda Maris, District Court Pleadings to Go (Spring Public Defender Conference, May 2011)(Checklist), for more information on misdemeanor pleadings, available at www.ncids.ord/Defender%20Training/2011SpringConference/DistrictCourtPleadings.pdf

G. Motion to Strike Prejudicial or Inflammatory Language of Pleadings-15A-924(f)

DEADLINE: See Section III, supra (Pre-Arraignment Motions Deadline)

-If a pleading contains surplus language that is inflammatory or needlessly prejudicial, this motion allows the defendant to request the court to strike the offensive language from the pleading.

H. Motion for Bill of Particulars-15A-924(b) and 15A-925; 5th, 6th, and 14th Amendments;

Article I, Sections 19 and 23 of the N.C. Constitution.

DEADLINE: See Section III, supra (Pre-Arraignment Motions Deadline)

-This is a request for the prosecutor to supplement the pleading with more information. There are two types of Bills of Particulars in the above-cited statutes.

-15A-924(b)- This is a request for State to elect between multiple offenses charged in one single of the indictment (this is known as a duplicitous pleading).

-15A-925- This is used to request specific facts related to the offense which are not contained in pleading. The motion must request specific information and allege that such information is essential to adequately prepare and conduct defense. Information such as the particular theory of the case, or time, date and location information about an offense may be obtained this way.

-If motion granted, the proceedings are stayed until the Bill of Particulars is filed and served upon the defendant. This ties the State to the information contained in their Bill of Particulars; the State’s proof at trial must then conform to the information in the Bill.

Practice Tip: The State’s verbal representations in response to a Motion for a Bill of Particulars does not operate like a written Bill; a Bill of Particulars must be in writing to have any effect. State v. Stallings, 107 N.C. App. 241 (1992). This is a particularly effective tool where the offense allows conviction by different prongs or theories, such as indecent liberties with a minor.

-See also Chapter 8.4, N.C. Defender Manual, vol. I (Felonies and Misdemeanors in Superior Court)

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I. Motion for Joinder or Severance-15A-926(a) and 927; 5th and 14th Amendments; Article I, Sections 19 and 23 of the N.C. Constitution.

DEADLINE: See Section III, supra (Pre-Arraignment Motions Deadline)

-These are motions to join or sever offenses or co-defendants for trial.

-15A-926-Joinder of Offenses-If offenses are related, the defendant may move to have the offenses joined for trial. The motion must be made pretrial and within the deadline unless the basis for the motion is discovered at trial. If the motion is granted during trial, a mistrial results. The standard for joinder of offenses is whether the offenses are based on the same act or transaction or the same series of acts or transactions. The court will consider the closeness in time and space of the offenses, similarities of the victims, the types of evidence required for each offense, motive, modus operandi and other factors in deciding the issue.

-Failure to make the timely motion results in waiver of the right to have offenses joined.

15A-927-Severance of Offenses-If necessary for a fair determination of the charges, even related offenses may be severed for trial. The court will consider the number of offenses, complexity of evidence, and whether the jury can distinguish the evidence and apply the law intelligently to each offense. If joining offenses will impair the ability of the defendant to present their defense as to one or both charges, counsel should move to sever (or oppose a request for joinder).

-Joinder of Co-Defendants-The State typically makes this motion to join co-defendants for trial under 15A-926(b); see 15A-927 for objections to joinder of co-defendant trials. For co-defendants to be joined for trial, each must either be charged with full accountability for each offense or the charges are all part of the same plan, scheme, act, or otherwise so connected, such that separating proof of each charge from the others would be difficult. The court will consider if the defendants are joinable under the statute, and if so, whether joinder of them for trial will deny any defendant the right to a fair trial.

-Severance of Co-Defendants-If a joint trial will deny the right of a fair trial to either defendant, they may be severed for trial, even if otherwise eligible for joinder. Examples of when a joint trial will not be fair includes but are not limited to situations where a defendant has made an admission admissible against the speaker but not the other co-defendants, where defenses among the co-defendants are in opposition to one another, or where a joint trial would otherwise be confusing to the jury.

Practice Tips: In addition to the statutes cited above, always constitutionalize the request for joinder or severance. If the motion is denied, renew objection at trial at the close of the State’s case and at the close of all evidence. A motion to sever granted during trial results in a mistrial. Request limiting instructions as to any evidence that is presented or limited as a result of the joinder or severance. The prejudice to the client caused by joinder of offenses or co-defendants is potentially significant, and counsel should be prepared to oppose such requests in a timely manner.

-See also Chapter 6, NC Defender Manual, Vol. I (Joinder and Severance)

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**With all Pre-Arraignment Motions above, the court may grant relief from waiver due to missed deadlines on any of these motions except a Motion to Dismiss for Improper Venue (III,C, supra). If this motion is not raised within the statutory deadline, the issue is lost and the judge shall not consider the motion.

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IV. Other Pre-Trial Motions and Notices with Deadlines

A. Motion to Suppres-15A 971-979; 4th, 5th, 6th, and 14th Amendments, Article I, Sections 19,

20, and 23; substantial statutory violations of Chapter 15A.

DEADLINE: Timing rules depend on the type of evidence to be suppressed and whether the State gives notice of intent to use certain evidence, but generally, these must be made prior to trial. This deadline applies only to motions made under 15A-974 (state or federal constitutional grounds and substantial violations of the Criminal Procedure Act, Chapter 15A).

-The scope of these motions is wide and may include stop, arrest, frisk, or search issues (reasonable suspicion, probable cause, test results, etc.), Miranda and issues concerning statements by the defendant, pre-trial identification, prior convictions, and any other evidence obtained in violation of constitutional or statutory rights.

-The motion be made before trial unless grounds are discovered at trial after reasonable diligence or if the State did not provide notice of intent to use certain evidence at least 20 business days before trial. “Certain evidence” includes statements by the defendant, evidence obtained by warrantless search, or evidence obtained by a search warrant where the defendant was not present at the time of the search. See 15A-975. Note that the notice and deadline only applies to cases originating in Superior Court (not de novo appeals).

-If State provides notice of intent to use certain evidence of 15A-977, a motion to suppress must be filed within 10 days of receipt of the notice.

-These motions require an affidavit that supports the motion with specific facts.

-These motions must state the specific legal grounds that would support an order of suppression.

-Failure to do either or both of these can result in summary denial of the motion. State v. Phillips, 132 N.C. App. 765 (1999)(affidavit without facts, merely reciting that discovery was reviewed by counsel and grounds exist to grant motion insufficient, summary dismissal aff’d.); State v. Davis, 210 N.C. App. 491 (2011)(affidavit incorporating motion by reference and attesting to truth of motion upon information and belief insufficient, summary denial appropriate); State v. Hall, 73 N.C. App. 101 (1985)(summary denial appropriate where motion failed to state specific legal grounds on which suppression could be ordered).

-It is the defendant’s burden to challenge the evidence in timely manner and proper form. The State has the burden of proof on the merits of the motion by a preponderance standard. State v. Williams, 225 N.C. App. 636 (2013).

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-The procedure for statutory ‘Franks’ challenge (for false or misleading information in a search warrant) is in 15A-978.

-If pleading guilty after the denial of a motion to suppress, the issue is not preserved for appeal unless clearly and explicitly stated in the plea transcript. See State v. Pimental, 153 N.C. App. 69 (2002)(plea transcript reading ‘Defendant preserves his right to appeal any and all issues which are so appealable pursuant to. . .law’ insufficient to preserve motion to suppress for appellate review). Language such as, “The defendant hereby pleads guilty on the express condition that the right to appeal the trial court’s denial of the defendant’s motion to suppress is preserved,” should suffice.

-The N.C. statutory Good Faith Exception applies to substantial statutory violations per 15A-975, but not to state constitutional violations.

Practice Tip: The State typically gives notice of its intent to use certain evidence as a part of its response to the defense discovery request. Consult your local rules and consider filing a motion to extend the timeline if necessary. These motions are often dispositive and counsel should take great care to investigate all possible grounds of suppression and file timely motions to suppress.

-See also Chapter 14, N.C Defender Manual, vol. I (Suppression Motions)

B. Motion to Recuse Judge-15A-1223; 5th and 14th Amendments; Canon 3 of the N.C. Code of Judicial Conduct.

DEADLINE: This motion must be filed at least 5 days before trial, unless the grounds for recusal are not reasonably known at the time or for other good cause.

-These motions must be in writing and accompanied by an affidavit factually supporting the motion.

-The court should recuse itself if it is biased against either party, if it is closely related by blood or marriage to either party, if the judge will be a witness, or if any other reason exists which impairs the ability of the judge to be fair and impartial. The defendant has the burden to demonstrate by reasonable grounds that there is cause to question the judge’s impartiality. State v. Poole, 305 N.C. 308 (1982).

Practice Tip: Counsel may request that the judge to refer this motion to another judge for hearing. Consider formally presenting evidence at the hearing on the motion in order to best preserve the issue for appeal. Documentary evidence in support of the motion should be attached and referenced in the motion.

-See also Chapter 13.4C, NC Defender Manual, Vol. I (Motion to Recuse Trial Judge)

C. Notice of Defenses- 15A-905(c)

DEADLINE: Notice of defenses must be given within 20 business days of the case being set for trial if discovery is provided by the State and reciprocal discovery requested or ordered, unless the court sets a different deadline.

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-Generally-Defendants are required to give written notice of intent to rely on the defenses of alibi, duress, entrapment, insanity, mental infirmity, diminished capacity, self-defense, accident, automatism, involuntary or voluntary intoxication. While not enumerated in the statute, one may consider also giving notice of necessity, defense of others or property, impossibility, mistake of fact, and any other possible defense.

-For Alibi-Upon motion of the State, the court may order disclosure of alibi witnesses no later than 2 weeks before trial.

-For other specific defenses (duress, entrapment, insanity, automatism, or involuntary intoxication), the notice of defense must contain specific information about nature and extent of defense.

-Insanity- This defense has special rules per 15A-959.

-Note the conflict between 15A-905(c)(1)(stating that notice of defenses is not admissible against the defendant) and 15A-1213(stating that the judge must inform the jurors about any defense of which the defendant has given notice).

Practice Tips: Failure to give proper notice of defenses may result in a sanction by the court, up to and including prohibiting presentation of the defense. Err on the side of giving notice; the notice may be withdrawn later. If the deadline is missed, argue that the defendant should not be punished for the error of counsel, and that a lesser sanction is appropriate. The sanction of prohibiting presentation of a defense should be met with constitutional objections. Consider requesting that the judge refrain from mentioning defenses to the jury unless and until it is clear that evidence on the defenses will be presented.

-See also Chapters 4.8E and 13.1D of the NC Defender Manual, vol. I

D. Chapter 90 Notice and Demand- 90-95(g)

DEADLINE: If the State gives notice to the defendant notice at least 15 business days before trial of its intent to introduce the evidence at trial and provides a copy of the evidence, then the defendant must file a written objection or ‘demand’ at least 5 days before trial.

-This statute allows the admission into evidence of a lab report, analyst affidavit and/or chain of custody statement without authentication and without the testimony of the analyst if the State meets the above requirements and no demand for the witness is made by the defendant.

-Failure to object and demand the live witness is a waiver of the right to confront these witnesses, and this statutory procedure satisfies the Confrontation Clause. State v. Steele, 201 N.C. App. 689 (2010).

Practice Tip: Look carefully at the form and substance of any notice by the State, as well as its timing. The State has the burden to prove its compliance with these requirements and that the defendant waived the right to confront by failing to object to the State’s proper notice. To preserve the issue at trial, an objection that the State failed to comply with the requirements of the notice and demand statute should state specifically how the State failed to comply, as well as more general

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Confrontation Clause and hearsay objections. Note that the attendance of an analyst in trial requires that the defendant pay a $600 expert witness fee upon conviction.

E. Chapter 20 Notice and Demand- 20-139.1(c1), (c3)(3), and (e2)

DEADLINE: If the State gives notice to the defendant at least 15 business days before trial of its intent to introduce the evidence at trial and provides the defendant a copy of the evidence within 15 business days of receiving it, then the defendant must file a written objection or ‘demand’ at least 5 business days before trial.

-This statute allows the admission into evidence of any chemical analysis (breath, blood or urine), chain of custody statement, and/or analyst affidavit without authentication and without the testimony of the analyst if the State meets the above requirements and no demand for the witness is made by the defendant.

-Upon receipt of timely notice and a copy of the evidence from the State, the failure to file a timely objection or demand is deemed a waiver, regardless of when the case actually goes to trial. In other words, ‘trial’ in this statute is defined as the next court setting. Failure to file a timely, written objection or demand at the time of the receipt of the State’s notice is binding at all subsequent court settings. Conversely, once the defendant has filed a timely objection, the objection remains effective at any subsequent court settings and need not be renewed.

Practice Tip: Look carefully at the form and substance of any notice by the State, as well as its timing. The State has the burden to prove its compliance with these requirements and that the defendant waived the right to confront by failing to object to the State’s proper notice. To preserve the issue at trial, an objection that the State failed to comply with the requirements of the notice and demand statute should state specifically how the State failed to comply, as well as more general Confrontation Clause and hearsay objections. Note that the attendance of an analyst in trial requires that the defendant pay a $600 expert witness fee upon the defendant’s conviction.

F. Notice of Expert Testimony-15A-905(c)(2)

DEADLINE: If the State voluntarily provides discovery and requests reciprocal discovery, or if the court orders reciprocal discovery to be provided, notice of any testifying experts of the defense must be provided within a reasonable time before trial.

-The defendant must provide notice of any expert expected to testify at trial, along with their expert opinion, a report of their tests or examinations, the underlying basis for the opinion, and the expert’s resume or curriculum vitae (C.V.). This applies only if the expert is for use at trial. Non-testifying experts should not be disclosed to the State.

Practice Tips: The same provision applies to the State in 15A-903(a)(2), and the notice provision here can be both a sword and a shield. A reasonable time before trial should be enough time for the opposing party to adequately prepare to meet and object to the expert testimony. If notice is untimely, the expert can be excluded from trial. Consider seeking a continuance if the defense expert

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is excluded on these grounds. Upon receipt of this notice from the State, consider the need for your own expert, both to affirmatively counter the State’s evidence and to assist the defense in effective cross-examination of the State’s expert. Consider the possibility of requesting a pre-trial voir dire of the State’s expert (See Section VII.C., infra).

G. Notice of Intent to Use Residual Hearsay-N.C. R. Evid. 804(b)(5)

DEADLINE: Written notice of intent to rely on residual hearsay must be provided, such that the opposing party has a fair opportunity to prepare and contest the use of the evidence.

-A notice under this rule must state the proponent’s intention to use the statement at issue, provide the particulars of the statement, and include the name and address of the declarant, in addition to meeting the ‘fair opportunity to contest’ timing rule, above.

-In addition to the notice requirement, residual hearsay must also meet the requirements under the evidence rule. Those requirements are that the statement is offered as evidence of a material fact, that it is more probative on the point for which it was offered than any other evidence which the proponent can reasonably obtain, and that the general purposes of the Rules of Evidence and the interest of justice will be best served by admission of the statement.

H. Notice of Intent to Use Convictions Older than 10 Years- N.C. R. Evid. 609(b)

DEADLINE: Written notice of intent to use older convictions must be provided to the opposing party, such that they have a fair opportunity to contest the use of the older convictions.

-The notice should identify the old convictions by offense, date, and location. It should further explain the specific facts and circumstances that support a finding that the use of such convictions is more probative than prejudicial for the case at hand.

-Practice Tips: Defense lawyers should always request criminal records for all witnesses in discovery, and should verify such information with independent research. Impeachment of State witnesses is one of the more powerful trial tools, and use of this motion ensures that the fact-finder will hear as many prior convictions as possible. Also, where specific facts support an argument that inquiry should be allowed into pending or dismissed charges of a witness, consider filing a motion to allow cross-examination of those charges. Davis v. Alaska, 415 U.S. 308 (1974); State v. Prevatte, 346 N.C. 162 (1997).

V. Other Common Motions Without Deadlines

-While these motions do not have specific deadlines, it will generally be better to prepare and file them as soon as the need is apparent.

A. Motion for Bond Reduction/Modification- 15A-533-543; 8thAmendment; Article I,

Sections 19, 21 and 27 of the N.C. Constitution.

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-A defendant charged with a non-capital offense is entitled to bail. In capital cases, bail is in the discretion of the court. There is a rebuttable presumption that no condition of release will secure the defendant’s attendance for certain situations in 15A-533 (defendants with repeat drug trafficking and criminal street gang offenses). Certain offenses have specific provisions as to pre-trial release conditions (domestic violence, impaired driving, violent and sexual crimes against minors, manufacturing methamphetamine).

-The court will consider the nature and circumstances of the offense charged, the weight of the evidence, the defendant’s family ties, financial resources, character, mental condition, if the defendant is intoxicated, the length of residency in the community, criminal record, history of flight or failure to appear, and any other pertinent evidence.

Practice Tips: Presenting documentation to the court, such as leases or deeds, proof of employment, character reference letters, and evidence of family and community ties and support are helpful in arguing bond reduction motions. The judge may modify the bond in either direction and has wide latitude in setting conditions of pre-trial release. The rules of evidence do not apply at bond hearings. A hearing may be formal or informal. Where sworn testimony is presented at the district court level, consider having it recorded. If the defendant makes statements at the hearing, the statements will likely be considered party admissions at any later trial. A well-drafted bond motion with supporting documentation attached is more likely to result in consent from the State or relief by the court. At times, there may be practical considerations to delay the filing of this motion.

-See Chapter 1, N.C. Defender Manual, Vol. I (Pretrial Release)

B. Motion/Request for Speedy Trial and Related Motions- 5th, 6th, and 14th Amendments; Article I, Sections 18 and 19 of the N.C. Constitution; 15A-711, 15A-761, 15-1; 15-10, 15-10.1-.2

Speedy Trial: NC has no general speedy trial statute. Speedy trial rights under the 6th Amendment and comparable state constitutional provisions attach after formal accusation. The court will consider the length of the pre-trial delay, the reasons for the delay, the prejudice to the defendant, and the defendant’s assertion of the right to a speedy trial. Barker v. Wingo, 407 U.S. 514 (1972). No single factor controls, and there is no bright-line rule. Generally, the defendant needs to show neglect or willfulness on the part of the State to establish a violation. State v. McKoy, 294 N.C. 134 (1978). Prejudice to the defendant includes harsh undue pretrial incarceration, the stress and strain of living under the suspicion of pending charges, and most importantly, any impairment of the ability of the defendant to present a defense. A finding of a speedy trial violation results in dismissal.

-Where a defendant is significantly prejudiced by pre-accusation delay, a due process claim may be available. U.S v. Lovasco, 431 U.S. 783 (1977). A court will consider the prejudice to the defendant, the reason for the delay, efforts by defense counsel to mitigate the prejudice, and whether the delay is intentional.

Statute of Limitations: For misdemeanors, a statute of limitations requires that charges be initiated within 2 years of the date of offense. See 15-1; but see also State v. Turner, ___ N.C. App. ___ (Dec. 6, 2016). A voluntary dismissal with leave likely tolls the statute; a dismissal without leave does not.

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There is no statute of limitations for felonies. Statute of limitations is an affirmative defense that must be raised at or before trial. With a few specific statutory exceptions for prisoners noted below, a defendant in NC is protected against unreasonable delay in felony cases only by the constitutional protections of the 6th Amendment and comparable state constitutional provisions.

Prisoner Demands for Trial: Pursuant to 15A-711, a prisoner confined in NC may demand to be tried on any other pending offense. The request must be served upon the prosecutor and filed with the clerk. If that procedure is met and the prisoner is not tried within 6 months (or 6 months plus up to 60 days, if the detainer procedure of 15A-711(a) is utilized), then the case must be dismissed. State v. Dammons, 293 N.C. 263 (1977). Some authority indicates that the case need not be dismissed as long as the State makes the formal request for custody of the prisoner within the timeline. Where no request is made within the deadline, dismissal is appropriate. State v. Williamson, 212 N.C. App. 393 (2011).

-15-10.2 is a similar statute that applies to in-state prisoners that are subject to a detainer. If a demand to be brought to trial is made in writing, served on the prosecutor and filed with the clerk, the prisoner must be brought to trial within 8 months. The court may still continue the case for any necessary reason. Note that this demand must be mailed by registered mail and must include the place of confinement and specifically request final disposition of the pending charges. Additionally, the request must be accompanied by a certificate from the Secretary of Public Safety stating the terms of the current sentence, the date the prisoner was received and the time remaining to be served.

-See 15A-761 for similar provisions for out-of-state prisoners with pending NC charges.

-See 15-10 for provisions regarding a defendant charged with a felony and held in pre-trial detention. In limited circumstances, a defendant so situated that demands a speedy trial in open court may be entitled to bail or release.

Practice Tips: While no deadline exists for a speedy trial motion, courts will consider the timing and frequency of requests for a speedy trial in determining whether there is a constitutional violation. Requests should be made frequently, as often as every 60-90 days. A speedy trial motion should specify the prejudice to the defendant, as well as the other Barker factors. Be prepared for trial if making this motion. Demands by prisoners under 15A-711 and 15-10.2 may utilize both procedures, where applicable.

-See also Chapter 7 of the NC Defender Manual, Vol 1 (Speedy Trial and Related Issues).

C. Ex Parte Motion for Expert Funds- 5th and 14th Amendments; Article I, Sections 19 and 23 of the N.C. Constitution; 7A-450 and 454; Ake v. Oklahoma, 470 U.S. 68 (1985); State v. Ballard, 333 N.C. 515 (1993).

-This may include, for example, funds for investigators, mental health professionals, specialists in DNA, technology, accounting, forensics, or any other necessary specialist.

Practice Tips: This motion should be heard ex parte, without notice or a copy to the State. Failing to file the motion in a timely manner undercuts the argument for need of the expert. This motion may

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be filed while the case is at the district court level. It must make an adequate showing of specific necessity and demonstrate a reasonable likelihood of material assistance from the expert. Ballard at 180. Explain why proceeding to trial without the expert would deprive the defendant of a fair trial. The motion itself may be filed under seal with the Court, or filing of the motion may be delayed until the conclusion of the case. If the expert is testifying at trial, their opinion and underlying data must be disclosed to the State a reasonable time before trial. If the expert is not testifying, you are obligated not to alert the State to their involvement (but there may be other strategic reasons to do so in some cases).

-See Chapter 5, NC Defender Manual, vol. I (Experts and Other Assistance)

D. Ritchie Motions (Motion for Protected Records)- 5th and 14th Amendments; Article I, Sections 19 and 23 of the N.C. Constitution; Ritchie v. Pennsylvania, 480 U.S. 39 (1987).

-This is essentially a discovery motion for protected records in the custody of a third-party, such as the Division of Social Services or a mental health care provider. The documents may be released to counsel, or reviewed by the trial court in camera. Where the records contain material evidence that is helpful to the defendant, due process requires the disclosure of that information. The records may pertain to the defendant, the victim, or other witnesses. In many cases, the court will enter a protective order, limiting potential disclosure beyond the parties and their counsel. These motions may reveal defense strategy, and may arguably be filed ex parte, although no North Carolina court opinion has directly addressed the issue.

-The defendant has the initial burden to demonstrate the evidence sought is material or favorable to the defense by a “plausible showing”. This has alternatively been described as a “substantial basis”.

Practice Tips: A Ritchie motion should request release of the records to defense counsel, or an in camera review in the alternative. If access to the records is denied, or is granted on a limited basis only, counsel should ensure that the unreleased records are sealed in the court file for appellate review. Also consider making an offer of proof regarding the expected contents of any records to which access is denied. The process of obtaining such records may be started with a subpoena, followed by a Ritchie motion as needed.

-See also Chapter 4.6, NC Defender Manual, Vol. I (Discovery-Other Constitutional Rights)

E. Motion in Limine- Common Law; various rules of evidence

-These are motions to have the trial court rule on the admissibility of evidence before trial. A motion in limine is typically made by the defense to exclude evidence, although it may also be used to seek an order allowing the presentation of certain evidence or to establish the permissible scope of cross-examination, among other purposes. Where the admissibility of evidence is or may be contested under the Rules of Evidence, a motion in limine should be filed pretrial to prevent the jury from hearing inadmissible evidence. Grounds potentially supporting such a motion are broad and can include any evidentiary issue, but often focus on prejudice and relevance. Examples include, but are not limited to, motions: to exclude character or 404(b) evidence, to exclude inflammatory,

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prejudicial, or cumulative evidence, to challenge competency of a witness, to address hearsay issues, to redact partially admissible evidence, or to allow or prohibit certain lines of questioning or argument.

Practice Tips: These motions can assist counsel in developing trial strategy, insofar as a pretrial ruling on certain evidence can shape how trial may progress and what evidence may be presented to the jury. Note that Rule 412(d) (Rape Shield) requires a hearing before questioning a witness on sexual behavior; a motion in limine can address this issue before trial. If there is an adverse ruling on the motion, an objection must be made at trial to preserve the issue. Where counsel is limited in their presentation of evidence or cross-examination by a ruling on a motion in limine, counsel must make a formal offer of proof and have the substance of the excluded matter placed into the record. Because these motions may reveal how defense counsel views the significance and admissibility of evidence, there may be strategic reasons to file the motion as late as possible.

-See also Chapter 13.1F, N.C. Defender Manual, Vol. I (Motions in Limine)

F. Motion to Determine Capacity to Proceed-15A-1001-1009

- Where the defendant suffers from a mental illness or defect and cannot understand the nature and object of the proceedings, cannot understand their situation in regards to the proceedings, or cannot assist in their defense in a reasonable manner, the statutes (and due process) prohibit trial of the defendant. Capacity to proceed may be raised by any party at any time. A finding of lack of capacity prevents the prosecution from moving forward and results in the involuntary commitment of the defendant to a mental health treatment facility, which will attempt to restore capacity. This motion should specifically note why capacity is in question, and counsel should be prepared to present formal evidence on the issue at hearing. The defendant has the burden to demonstrate a lack of capacity by a preponderance of the evidence standard.

Practice Tips: Before filing a motion challenging the defendant’s capacity, consider obtaining a mental health expert of your own with an ex parte motion for funds (see Section V.C., supra). Where the State seeks to have the defendant evaluated, request that the scope and use of the evaluation be limited, to prevent use by the State to strengthen their case. Consider requesting to attend or witness the evaluation, or to have it recorded. A finding of lack of capacity may result in dismissal of the case in some circumstances (see 15A-1008).

-See also Chapter 2, N.C. Defender Manual, Vol. I (Capacity to Proceed)

G. Motion/Notice to Preserve Evidence- 5th and 14th Amendments; Article I, Sections 19 and 23 of the NC Constitution; 15A-903; 15-11.1(a)

-This motion puts the State on to retain and preserve all evidence for independent testing and/or examination. In addition to ensuring complete access by the defense to all of the State’s evidence, this can assist in establishing a statutory or constitutional violation for loss or destruction of evidence. Because a showing of bad-faith is sometimes required to establish a due process violation for the loss or destruction of evidence, this motion can strengthen the argument that the State had

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notice of the evidence and its value to the defense. Generally, the loss of material and favorable evidence by the State is a due process violation under Brady, regardless of bad-faith. Where the evidence is only potentially exculpatory, or the value of the evidence is speculative, a showing of bad-faith on the part of the State is required. See generally Arizona v. Youngblood, 488 U.S. 51 (1988); Brady v. Maryland, 373 U.S. 83 (1963); State v. Williams, 362 N.C. 628 (2008).

-See also Chapter 4.6C, NC Defender Manual, Vol. I (Lost or Destroyed Evidence)

H. Motion to Extend Motions Deadlines- 5th and 14th Amendments; Article I, Sections 19

and 23 of the NC Constitution; fundamental fairness; inherent authority of the court.

-This is a way to exert control over motions deadlines and to set a motions hearing date. There are short deadlines for statutory discovery, pre-arraignment motions and motions to suppress. These deadlines are leftover from the time before open-file discovery. Consider asking for additional time to prepare and investigate before filing potentially dispositive motions.

Practice Tips: Try to obtain the consent of the State to this motion. No particular form or content is required other than a showing of a need for additional time. This is particularly useful and likely to be granted where there is extensive discovery or in an unusually complex case.

VI. Trial-Specific Motions

A. Motion for Full Recordation-15A-1241(b)

-This motion shall be granted upon request by the terms of the statute.

- Without complete recordation, jury selection, opening statements, closing arguments, and bench conferences are not recorded by the court reporter. To preserve potential error for appellate review during these parts of the trial, they must be recorded. The motion may include opening statements, closing arguments, jury selection, and bench conferences.

Practice Tips: Judges may discourage counsel from insisting on complete recordation. A good rebuttal argument is that the Court of Appeals and Supreme Court opinions make clear that unrecorded errors are not preserved, and thus counsel must insist on complete recordation as a matter of effective assistance of counsel. If a motion for full recordation is not be made and some error or improper argument presented during an unrecorded portion of the trial, counsel must attempt to reconstruct the error for the record. This motion may be made verbally in open court, but the better practice is to file a written request pretrial.

B. Motion for Sequestration of Witnesses- N.C. R. Evid. 615, 15A-1225, 5th and 14th

Amendments; Article I, Sections 19 and 23 of the N.C. Constitution

-The purpose of sequestration is to avoid conscious or unconscious tailoring of testimony by one witness based on the testimony of another witness, and to assist the fact-finder in detecting false or

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less than candid testimony. This may be granted on motion of either party or on the court’s motion. The decision to order sequestration is in the discretion of the court.

Practice Tip: This motion should be made as a matter of course when going to trial. A specific showing of the need for sequestration based on the facts of the case should be included in the motion, such as the existence of close family ties among witnesses, possible financial or employment interest or incentives by the witnesses, or prior inconsistent witness statements (among other potential reasons). In addition to requesting physical sequestration, the motion should seek to have the court instruct the witnesses not to discuss their testimony or the case with other witnesses during the trial. In addition to the statute, argue that sequestration is required as a matter of due process. A useful bit of authority for this motion is the Official Commentary to Rule 615, noting that sequestration should ordinarily granted upon request. This motion may be made verbally in court, but better practice is to prepare a detailed written motion.

-See also Chapter 29.3, N.C. Defender Manual, Vol. II (Sequestration of Witnesses)

C. Witness List-15A-905(c)(3)

- Counsel must provide a written list of witnesses that counsel reasonably expected to call by the defense at or before the beginning of jury selection.

Practice Tips: There is no requirement that a witness listed on the witness list must be called to testify. However, failure to list a witness on the witness list may result in the judge prohibiting the witness from testifying, absent good cause for the omission. Counsel should therefore err on the side of disclosing all potential witnesses.

D. Motion or Request for Jury Instructions-15A-1231-1234; 5th and 14th Amendments; Article I, Sections 19 and 23 of the N.C. Constitution

-At the close of all evidence, the court will hold a charge conference to determine how to instruct the jury. A written request for jury instructions should be filed early in the course of the trial in preparation for the charge conference. It must be requested before the jury is actually instructed. Any request for instructions should be written, signed, filed with the court and served on the State.

-Consider requesting instructions (and which instructions may be sought by the State) from the NC Pattern Jury Instructions, such as lesser-included offenses, defenses, and reasonable doubt, among others. Consider requesting special jury instructions that are not covered by the pattern instructions to define legal terms or otherwise explain the law to the jury. Legally correct statements of law, supported by the evidence, must be given by the court upon request. State v. Lamb, 321 N.C. 633 (1988).

Practice Tips: Despite the language of 15A-1231(d), counsel must object at the charge conference to the denial of any requested instructions or requested modification of instructions in order to preserve the issue for appeal, at least where no written request for instruction was filed and ruled on by the court. State v. Bennett, 308 N.C. 530 (1982). Objections to proposed instructions should specifically state what part of the instruction is objectionable, or why the instruction or failure to

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give a proposed instruction is prejudicial. Objections to jury instructions should be made on constitutional grounds as a matter of state and federal due process.

-See also Chapter 32, N.C. Defender Manual, Vol. II (Instructions to the Jury)

E. Motion for Individual Voir Dire of Jurors-15A-1214(j); 5th and 14th Amendments; Article I, Sections 19 and 23 of the N.C. Constitution

-For good cause in capital cases, the court may order that jurors be selected one at a time and be sequestered before and after selection by the terms of the statute. Where the facts of the case warrant such a procedure, counsel may consider requesting individual voir dire of jurors even in non-capital cases as a constitutional matter. This procedure substantially lengthens the amount of time required to complete jury selection, and is likely to be granted in non-capital cases only in extraordinary circumstances. This request should be filed in a pretrial written motion.

F. Motion to Record Race of Jurors-5th and 14th Amendments; Article I, Sections 19 and 23 of the N.C. Constitution; Batson v. Kentucky, 476 U.S. 79 (1986).

-To preserve appellate review of Batson issues, the trial transcript must reflect the race of the jurors that were peremptorily stricken by the State, as well as the race of the jurors that were seated. State v. Brogden, 329 N.C. 534 (1991). If Batson issues are of concern, counsel should consider filing a pre-trial motion to record the race of the jurors. Counsel may move to have each prospective juror state their race at the beginning of examination by the court. Batson challenges are beyond the scope of this guide, but the resources below are excellent guides to this area of law. This motion should typically be made in writing and filed pretrial.

-See Chapter 25.5, N.C. Defender Manual, vol. II (Selection of Jury-Preemptory Challenges)

-See also Chapter 7, Raising Issues of Race in North Carolina Criminal Cases

G. Motion for Mistrial- 15A-1061-1065

-Where conclusion of the trial is a physical impossibility, the jury is unable to perform their function, or where a fair trial is no longer possible for either party due to substantial and irreparable prejudice, a mistrial may be declared. In many instances, a defendant may be tried again following a mistrial. However, depending on the reasons for the mistrial and whether the defendant objected, double jeopardy may preclude further prosecution in some limited circumstances. The court has wide discretion to declare a mistrial, but a mistrial must be supported by a manifest necessity to overcome double jeopardy concerns. State v. Sanders, 347 N.C. 587 (1998). Firmly established grounds supporting a manifest necessity to declare a mistrial include the death or disability of the judge or a juror, a hung jury, or a fatally flawed pleading that fails to confer jurisdiction. Where the defendant requests the mistrial, joins in the request or consents to it, there is likely no double jeopardy problem. State v. White, 322 N.C. 506 (1988) (but recognizing an exception for prosecutorial

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misconduct designed to intended to cause a mistrial). While the law of mistrials and double jeopardy is beyond the scope of this guide, counsel should be aware of what may constitute a manifest necessity and what will not.

Practice Tips: Depending on the issue resulting in the motion for a mistrial, consider whether some lesser sanction would be appropriate, such as a limiting instruction, recess, or other relief. Depending on which party is seeking the mistrial and the reasons for the motion, counsel may consider opposing the request. Failure to object to the declaration of a mistrial is likely considered consent. State v. Cummings, 169 N.C. App. 249 (2005). Because the grounds for a mistrial are not be known before trial, this motion is made verbally in open court.

-See also Chapter 31, N.C. Defender Manual, Vol. II (Mistrials).

H. Motion to Poll Jury- 15A-1238

-This motion shall be granted on the request of either party. It requires each juror to be questioned individually by the court to ensure that the verdict is unanimous. If the poll reveals that the jury is not in fact unanimous, the court must order the jury to return to deliberations. This motion is made verbally in open court after the verdict has been announced but before the jury has been released.

I. Motion to Allow (or Prohibit) Notetaking by Jurors-15A-1228

-Consider making the request to allow notetaking by jurors where there is voluminous amounts of evidence or where the trial will take considerable time to complete. The decision to grant this motion is in the court’s discretion. Any party, including the court itself, may make this motion.

VII. Other Motions to Consider

A. Motion for Advance Notice of 404(b) evidence-15A-903; 5th and 14th Amendments;

Article I, Sections 19 and 23 of the N.C. Constitution.

-Under open-file discovery, such evidence should be provided to the defendant as a matter of course. Under the Federal Rules of Evidence, notice of intent to use 404(b) evidence must be provided upon request, but Rule 404 in NC has no comparable provision. As a matter of open-file discovery and due process, counsel may consider requesting advance notice of the State’s 404(b) evidence a reasonable time before trial.

B. Motion for Sanctions (Discovery or Other Violation)-15A-910, N.C.R. Civ. P. 11.

-15A-910 provides that the court may sanction a party for discovery violations. Where there is evidence of willful disobedience of orders of the court, intentional wrongdoing, bad faith, or gross

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negligence, consider requesting the court to impose sanctions. Sanctions may include dismissal, mistrial, exclusion of evidence, and any other remedy the court deems appropriate.

Practice Tips: Sanctions against the State are not imposed lightly by most courts. Counsel should consider attempting to resolve the complaint with the State informally and outside of the court before asking the court for sanctions. If a motion for sanctions does become necessary, attach any correspondence with the State that documents efforts to resolve the issue, as well as any relevant court orders, transcripts, or other pertinent evidence.

C. Requests for Voir Dire of Experts/Incompetent Witnesses/404(b) Witnesses-N.C. R. Evid. 601, 702, and 404.

-Counsel may request that witnesses be questioned outside the presence of the jury to establish that they are competent to testify, or to establish whether their testimony would be admissible at trial. This may be useful when faced with a child witness, witnesses with an intellectual or other disability, character evidence witnesses, or expert witnesses.

Practice Tips: Where the competency of a witness to testify is in question, counsel should request a pre-trial hearing and determination of the issue with this motion. Likewise, a motion to exclude 404(b) testimony may request an evidentiary hearing or voir dire of the witness on the question of admissibility of the evidence. Where the State is offering expert testimony, a motion should be filed seeking a pretrial hearing on the qualification of the expert and the admissibility of their opinion. Consider obtaining or consulting with a defense expert to best prepare for a hearing seeking to exclude an expert.

D. Motion for Prior Trial or Hearing Transcript- 7A-450(b); 5th and 14th Amendments; Article I, Sections 19 and 23 of the N.C. Constitution; Britt v. North Carolina, 404 U.S. 226 (1971).

-Where the defendant needs a transcript of a prior trial or proceeding in the case and is unable to afford the expense of the transcript, equal protection requires that a copy be provided at the State’s expense. The motion should demonstrate why the transcript is necessary to prepare the defense and why any available alternatives are insufficient. The fact that a transcript contains prior sworn testimony may be enough to overcome any proposed alternative.

-See also Chapter 5.8B, N.C. Defender Manual, Vol. I (Right to Other Assistance-Transcripts)

E. Motion to Appear and Testify Before Grand Jury-15A-626(d).

- Although generally a person has no right to call witnesses or appear before the grand jury, this section of the statute allow a person to petition the judge or district attorney to testify before the grand jury. In the discretion of the judge or D.A., the person may be allowed to do so. This presumably includes the defendant.

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F. Notice of Assertion of Rights-4th, 5th, 6th, and 14th Amendments; Article I, Sections 19

and 23 of the N.C. Constitution.

-While arguably unnecessary after the appointment of counsel, some jurisdictions have had issues with law enforcement or other state agents approaching defendants in custody to obtain statements, obtain permission to search, discuss unrelated cases, or for other purposes. If it is a concern, filing a notice that the defendant asserts all constitutional rights (such as to remain silent) can have a deterrent effect on law enforcement. Where a notice is filed and a violation subsequently occurs, the court may be more inclined to grant relief.

G. Motion for Deposition- 8-74.

-Where a material witness is ill, physically unable to attend trial, or resides is another state, the defendant may seek an order from the clerk of superior court to take the deposition of the witness. While rare in criminal cases, this statue does allow the use of depositions in these limited circumstances. The State must be notified at least 10 days in advance and be provided an opportunity to participate in the deposition.

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THE TEN COMMANDMENTS OF MOTIONS (Shamelessly stolen from Paul Herzog)

1. THOU SHALT THINK CRITICALLY ABOUT THE FACTS OF THY CASE BEFORE FILING ANYTHING.

2. THOU SHALT READ AS MUCH LAW AS POSSIBLE. FOR IT WAS WRITTEN: THE LAW IS THE FOUTAIN FROM WHICH ALL RIGHTEOUS MOTIONS FLOW.

3. THOU SHALT FILE MOTIONS FOR FUNDAMENTAL FAIRNESS AND DUE PROCESS, EVEN WHERE THE LAW IS AGAINST THEE, FOR THE LAW CHANGES, AS DO THE JUDGES.

4. THOU MAY COVET YOUR NEIGHBOR’S MOTIONS, BUT THOU SHALT NOT SUBSTITUTE TEMPLATES FOR MOTIONS SPECIFICALLY TAILORED TO THY CASE.

5. THOU SHALT INCLUDE STATEMENTS OF FACTS AND LEGAL CITATIONS IN THY MOTIONS. BLESSED ARE THOSE WHO FILE MEMORANDA OF LAW.

6. THOU SHALT DEMAND PRE-TRIAL MOTIONS HEARINGS.

7. THOU SHALT DEMAND RULINGS ON EVERY MOTION, AND THOU SHALT RENEW MOTIONS UNTIL A RULING IS BEGOTTEN.

8. THOU SHALT NOT FILE MOTIONS WITHOUT A SPECIFIC BASIS AND GOAL.

9. THOU SHALT REMEMBER TO OBJECT AT TRIAL IF THY MOTION IS DENIED. FOR IT WAS WRITTEN: FAILURE TO OBJECT AT TRIAL WILL WAIVE THE ISSUE ON APPEAL.

10. THOU SHALT KNOW THY DEADLINES, ABIDE BY THEM, AND ENFORCE THEM UPON THE STATE. FOR IT WAS WRITTEN: A STRONG MOTIONS PRACTICE CAN MAKE OR BREAK THY CASE.