3.5 Pretrial Motions

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

3.5 PRETRIAL MOTIONS

All pretrial motions can be made in the form of either a motion to dismiss or a motion to grant appropriate relief. Upon receiving either type of motion, the trial court may defer the motion for determination at trial or schedule a hearing and rule upon the motion before trial. ⁶⁹ Unless prohibited by statutory or constitutional provisions, the court will determine any underlying

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factual issues necessary for a ruling on the motion. ⁷⁰ If a motion is determined adversely to the defendant, the defendant is permitted to change his or her plea. ⁷¹ A voluntary plea of guilty renders moot any issues raised by pretrial motions ⁷² unless the court and the Commonwealth agree to accept a conditional guilty plea that reserves the defendant's right to appeal adverse determinations of pretrial motions. ⁷³ If a judge rejects a plea agreement in any criminal or delinquency matter, the judge must immediately recuse himself or herself from any further proceedings in the same matter unless the parties agree otherwise. ⁷⁴

Although counsel must state with particularity the grounds on which a pretrial motion is based, ⁷⁵ counsel need not distinguish between pleas in abatement, pleas in bar, demurrers, motions to quash, and the like. The important distinction is between motions that must be raised before trial and motions that may be raised at any time before a verdict is returned. Virginia courts have been strict about compliance with rules governing pretrial motions, and even the automatic review of capital cases ⁷⁶ will not include review of issues that are not timely raised. ⁷⁷ It is, therefore, important that pretrial issues be identified and raised at the appropriate time. In addition, both direct and collateral federal review is in large measure governed by state default and waiver rules. As a general proposition, an issue waived under state law cannot be reviewed by the federal courts. ⁷⁸ Unless an issue is

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raised as a federal constitutional matter in accordance with the applicable state practice, federal review of the issue will be lost.

In In re Horan, ⁷⁹ the trial judge granted a pretrial motion to prohibit the Commonwealth from seeking the death penalty because the Commonwealth had violated the Vienna Convention on Consular Relations and Optional Protocol on Disputes. The Virginia Supreme Court issued a writ of mandamus directing the trial judge to allow the commonwealth's attorney to seek the death penalty. The court noted that under the Virginia statutory scheme, the trial judge does "not have authority to make a sentencing decision when ruling on a pre-trial motion. . . . [and that the judge] performed an executive function and exercised discretion that resides solely in the Commonwealth's Attorney."

Finally, it should be noted that Virginia courts have recently addressed challenges to different forms of jurisdiction. Subject-matter jurisdiction is "potential jurisdiction over a class of cases as granted by statute or constitution, which becomes 'active' jurisdiction, the power to adjudicate a particular case upon the merits, only when various elements are present." While a lack of subject-matter jurisdiction can be raised for the first time on appeal, "a trial court's alleged lack of authority to exercise its jurisdiction must be raised before the trial court and preserved like any other legal argument." ⁸⁰

3.501 Motions That May Be Raised Pretrial. Rule 3A:9(b)(2) of the Rules of the Supreme Court of Virginia provides that any defense or objection that is "capable of determination without trial of the general issue may be raised by motion before trial." This provision is merely permissive and does not preclude counsel from raising such defenses and objections at any time before a verdict is returned, as long as the defense or objection is timely. ⁸¹ Failure to file the motion before verdict, however, constitutes a

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waiver, although for good cause shown the court may grant relief from any waiver. ⁸²

In Green v. Commonwealth, ⁸³ the defendant filed a pretrial motion asking the court to rule that the evidence available to the Commonwealth would be insufficient, as a matter of law, to establish the vileness aggravating factor. The Virginia Supreme Court held that "there is no procedure in Virginia that allows a circuit court, in a pre-trial context, to rule on the sufficiency of the Commonwealth's evidence in a criminal case. Instead, the court must determine the sufficiency of that evidence based on the record made at trial."

3.502 Issues That Must Be Raised Pretrial.

A. Rule 3A:9(b)(1). Rule 3A:9(b)(1) of the Rules of the Supreme Court of Virginia requires that "[d]efenses and objections based on defects in the institution of the prosecution or in the written charge" be made pretrial. Pretrial, in this context, is defined by Rule 3A:9(c) as before pleading and seven days before the day fixed for trial. If such a defense or objection is not raised as required, it is waived unless the court, for good cause, gives relief from waiver pursuant to Rule 3A:9(d). ⁸⁴

There are three types of motions that fall within the rubric of Rule 3A:9(b)(1) and thus must be raised pretrial.

1. Defects in the Charging Process. The first type of motion that must be raised pretrial is a motion alleging defects in the charging process. For example, a motion to dismiss the indictment on the ground that the grand jury was improperly selected or alleging that an individual grand juror was not qualified must be raised pretrial. ⁸⁵ Motions to dismiss alleging that the indictment was returned before the defendant had a preliminary hearing ⁸⁶ or alleging impermissibly selective prosecution or prosecutorial misconduct in obtaining the indictment also appear to fall within Rule 3A:9(b)(1).

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2. Defenses That Bar Prosecution. The second...