Pretrial Motions Other Than Motions to Suppress in a Criminal Case

• Library: Objections Guidebook (2022 Ed.)

Pretrial Motions Other Than Motions to Suppress in a Criminal Case

· Defects in the Charge or the Proceedings

- Rule 24.04(b) provides that such objections may be raised by motion to dismiss. Rule 24.04(b)(1) provides that defenses and objections that are capable of determination without a trial of the general issue may be raised before trial by motion, and Rule 24.04(b)(2) provides that “defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial.” Failure to present such defenses or objections constitutes a waiver, unless the court, for good cause shown, grants relief from such waiver. Lack of jurisdiction or failure of the indictment or information to charge an offense need not be raised by motion and can be noticed any time, Rule 24.04(b)(2), even on appeal, Rule 30.20. But see State v. Parkhurst, 845 S.W.2d 31 (Mo. banc 1992).

If a defendant raises a claim that the indictment or information is insufficient for the first time after the verdict, it will be deemed insufficient only if it is so defective that it does not, by any reasonable construction, charge the defendant with the offense of which the defendant was convicted, or the substantial rights of the defendant to prepare a defense and plead former jeopardy in the event of an acquittal are prejudiced. Id. at 35.

- Such motions should be filed before the plea is entered or at such other time before trial as is fixed by the court. Rule 24.04(b)(3).

- Among the objections and defenses that may be raised by motion are:

o Double jeopardy that may also be shown at trial upon a plea of not guilty, including the following: (i) collateral estoppel, Ashe v. Swenson, 397 U.S. 436 (1970); or (ii) another prosecution pending for the same offense in a different county, Rule 23.10(a); State v. Berry, 298 S.W.2d 429 (Mo. 1957).

o The grand jury was improperly chosen, qualified, or impaneled, including selective discrimination. Such a challenge must be made prior to the grand jury being sworn if the defendant is held to answer to a criminal charge. The grounds for the challenge are set forth in § 540.060, RSMo 2016:

[T]he grand juror is the prosecutor or complainant upon any charge against such person, or . . . the grand juror is a witness on the part of the prosecutor and has been summoned or bound in a recognizance as such. If such objection is established, the person so challenged shall be excused.

Section 540.070, RSMo 2016, states that “[n]o challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed except as provided in section 540.045 and in section 540.050[, RSMo 2016].” But when the grand jury has convened under statutes that do not apply and when the defendant raises a constitutional challenge to the grand jury selection, the challenge does not have to be made prior to the swearing of the grand juror. The challenge must be made prior to trial. State ex rel. Woods v. Connett, 525 S.W.2d 326, 331 (Mo. banc 1975); State v. Hemphill, 460 S.W.2d 648, 649 (Mo. 1970).

o Insufficiency of evidence presented to the grand jury, State v. Selle, 367 S.W.2d 522 (Mo. 1963), or where the grand jury was not told that all the evidence presented was hearsay, United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972).

o Improper person present during the grand jury’s deliberation, State v. Sullivan, 84 S.W. 105 (Mo. App. W.D. 1904); § 540.140, RSMo 2016.

o A target defendant was called before the grand jury and, in effect, told to confess or commit perjury. State v. Caperton, 207 S.W. 795 (1918).

o Calling defense witnesses before the grand jury after the defendant has already been charged, State v. Weagley, 228 S.W. 817 (1921); § 540.160, RSMo 2016.

o Lack of preliminary examination: See Rule 22.09 (felonies—preliminary).

- This objection must be made before arraignment or else it is deemed to have been waived. State v. Rounds, 492 S.W.2d 11 (Mo. App. W.D. 1978).

- Note: A motion to remand would be a more appropriate remedy, thus avoiding the problems of being re-arrested.

o The information filed is broader or different than the offense alleged in the complaint upon which the

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