STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
DISTRICT COURT DIVISION
___________ COUNTY FILE NO.
STATE OF NORTH CAROLINA
vs. MOTIONS TO QUASH
AND TO DISMISS
______________,
Defendant
____________________________________________________________________________
NOW COMES the Defendant, by and through Marcus E. Hill and moves the Court,
pursuant to N.C. Gen. Stat.§§15A-954 et. seq. and 15A-1415, to quash the warrant and to
dismiss with prejudice the charges against him. In support of his motion, the Defendant shows
unto the Court the following:
1. On November 16, 2008, the defendant was charged with Driving While Impaired in
State vs. . On January 28, 2009, the first court date, the case was
continued until February 25, 2009, because the sitting Judge requested a recusal. The
defendant is a local attorney, known to the local bar and many judges.
2. On February 25, 2009, the case was continued until March 25, 2009, because the
calendared, visiting Judge was not available.
3. On March 25, 2009, the calendared visiting Judge was not available again but the
defendant's attorney called the case for trial. The police officer was present in
court and heard the Judge order everyone back to court at 2:00 p.m. At 2:00 p.m. on March
25, 2009, the officer did not appear. By 2:45 p.m. the court had finished all other business and
the officer had not appeared. Consequently, the State moved for a continuance. The Court
denied the State's motion. Thereupon, the State voluntarily dismissed the case.
4. That same night, March 25, 2009, the district attorney issued a warrant for the
defendant's arrest. The defendant was arrested by police officers after 11:00 p.m. at his
residence and was placed in handcuffs on the street outside of his residence in front of his
neighbors.
5. Defendant requests the Court to dismiss the case for the following reasons:
(i) The court date was not set within one month of the issuance or reissuance of the summons or warrant, pursuant to N.C.G.S§ 15A-303.
N.C.G.S § 15A-303 states, "Except for cause noted in the criminal summons by
the issuing official, an appearance date may not be set more than one month following the
issuance or reissuance of the criminal summons." In this case, the original summons was
issued on November 16, 2008. After the case was dismissed, a warrant was then issued on
March 25, 2009. The court date set by the warrant is May 20, 2009. The court date, May 20,
2009, is more than one month and is, in fact, almost two months following the issuance of the
warrant and more than five months following the issuance of the original summons.
Additionally, no cause for the new court date to be set more than one month from its
issuance, as required by the statute, is noted on the warrant.
The warrant itself is improper. Pursuant to N.C.G.S. Statute 15A-304, a judicial official
may issue a warrant for arrest after considering circumstances, such as that a person summoned
will fail to appear, that a danger exists that a person accused will escape, that a danger exists
that there may be injury to person or property or that the offense is serious. Defendant avers
that the seriousness of the offense that could have been considered to justify the issuance of the
warrant is that the officer chose not to return to court for the trial.
If a warrant is regular and valid on its face, objection thereto, should there be grounds
therefor, must be by motion to quash. Steve v. Green, 251 N.C. 40, 110 S.E.2d 609 (1959).
Perhaps, not admitting anything, the warrant is regular and valid on its face but a reading of the
applicable statute renders the warrant defective and it should therefore be quashed.
(ii) The prosecutor abused his calendaring authority having the warrant issued and in recalendaring the case for trial.
By statute [and local rule], the prosecutor has the authority to calendar criminal cases.
N.C. Gen. Stat. 7A-49.4(a) [case management rule]. However, this authority is limited in two
ways. First, the prosecutor's authority is subject always to the principles of Due Process found
in both state and federal constitutions. U.S. Const. Amend XIV; N.C. Const. Art. I, 24. It is a
violation of Due Process for a prosecutor to exercise the calendaring authority to gain a tactical
advantage over a criminal defendant. Simeon v. Hardin, 339 N.C. 358, 451 S.E.2d 858 (1994).
Second, under our Rules of Professional Responsibility, a prosecutor has the ethical
duty to exercise his authority to do justice. N.C. Rules or Professional Responsibility 3-1.11.
This manipulation of the calendar violated the defendant's constitutional rights to due
process of law. Simeon v. Hardin, 339 N.C. at 378. Such a violation is either reversible per se,
or, at least, presumptively prejudicial. Id; see also State v. Cofield, 320 N.C. 297 (1987); State
v. Harbison, 315 N.C. 175 (1985).
Under the constitutional standard of prejudice, the state has the burden of showing that
the manipulation of the calendar was harmless to the defendant beyond a reasonable doubt.
N.C. Gen. Stat. 15A-1443(b).
The state cannot show beyond a reasonable doubt that its use of the calendaring
authority in this case did not prejudice the defendant. Therefore, the charges against the
defendant should be dismissed with prejudice.
(iii) The State' recalendaring of an already dismissed case, without the Court's permission undermines the Court's authority to deny continuances and to calendar cases.
Under North Carolina law when a continuance is denied the State may take a nolle
prosequi where the State declares that it will not at that time prosecute the suit further;
Klopfer v. North Carolina, 386 U.S. 213, 214 (1967). However, the case may only be restored
to the trial docket when ordered by the Judge upon the solicitor's application, Id.;
Said another way, in John A. Lassiter v. R.L. Turner 423 F.2d 897 (1970).
"under North Carolina law, a nolle prosequi, not with leave, does not terminate the prosecution.
It may be reopened with the court's permission. " John A. Lassiter v. R. L. Turner 423 F.2d
897 (1970) (emphasis added).
On March 25, 2009, when the Court denied the State's continuance, the State had been
on notice and should have been ready to proceed with the case on that day. Apparently, the
State did not have the evidence to proceed and thus dismissed the case. By issuing the warrant
and recalendaring the case two months later, the State is abusing its calendaring authority to
give it more time to prepare and procure the officer, a necessary witness, to be at trial. The
State should not be given another bite at the apple.
Furthermore, allowing the State to re-open the case against the Defendant is
fundamentally unfair as prohibited by the Due Process Clause of the Constitution of
the United States Constitution as well as the North Carolina Constitution;
The Court has the ultimate authority over managing the trial calendar, NCGS 7A-
49.4(h)m see also Simeon v. Hardin 339 NC 358 (1994);
Allowing the State to re-open the case against the Defendant takes away the Court's
authority to deny continuances and undermines its calendaring authority. NCGS 7A-49.4
(h), see also Simeon v. Hardin 339 NC 358 (1994).
WHEREFORE, the Defendant respectfully requests the following relief from the Court:
1. That the Court quash the warrant in this case;
2. That the Court not consent to the Assistant District Attorney's request, once
made, to re-open this case;
3. That any and all charges against the Defendant be dismissed with prejudice; and
4. That the Court grant the Defendant such other relief as justice requires.
This is the___________day of __________________, 20____.
___________________________________
Marcus E. Hill
Attorney for Defendant
311 E. Main Street
Durham, North Carolina 27701
(919) 688-1941