102.2Challenges and Motions to Change Venue
- Defendant can move to dismiss for improper venue, but the motion must be timely made or else it is waived.
- Pre-trial dismissal for improper venue is not a double-jeopardy bar to subsequent prosecution in the correct venue.
- Defendant may move to transfer venue on the grounds that is necessary to receive a fair trial; defendant has the burden of proof on such a motion.
- Venue may also be transferred on the state’s motion or by stipulation of the parties.
Timeliness of Motion
Any motion for a change of venue for a felony must be “timely made” under G.S. 15A-952(c). Generally this means the motion must be made at or before arraignment (if an arraignment is requested), or not more than 21 days after indictment. See G.S. 15A-135. Failure to make a timely motion constitutes a waiver under G.S. 15A-952(e). A court may not grant relief from such a waiver on a motion to dismiss for improper venue.
At a trial de novo for a misdemeanor case appealed from district to superior court, the defendant may raise an objection to improper venue for the first time in superior court, but only if he or she did not already stipulate or expressly waive the issue in district court with the benefit of counsel (see G.S. 15A-135). The objection in superior court still must be timely under G.S. 15A-952.
A motion to dismiss for improper venue in district court may be made upon arraignment, or during trial “as appropriate.” See G.S. 15A-953.
Claim of Improper Venue
Assuming the defendant’s motion is timely made, the claim of improper venue will typically be based on one of three grounds.
- Deficient Pleading
Indictment is deficient on its face because it fails to name the county in which the offense occurred, as required. See G.S. 15A-924(a)(3).
- Defective Pleading
Venue alleged in indictment is defective on its face. See, e.g., State v. Carter, 96 N.C. App. 611 (1989) (a Wake County indictment alleging that a crime happened in Franklin County); State v. Bolt, 81 N.C. App. 133 (1986) (per an offense-specific statute, venue was only proper in the county where defendant resided, which is not where it was charged).
- Inaccurate Pleading
The indictment is not invalid or defective on its face, but it does not accurately reflect the facts of the case. For example, the indictment alleges that the crime happened in Nash County, but it actually happened in Harnett County. If the inaccuracy comes to light early in the process and the prosecutor agrees that the indictment is incorrect, it may be best to simply dismiss the indictment and refile in the proper county.
However, if the inaccuracy does not become apparent until a variance occurs between the venue alleged in the indictment and the venue established by the evidence at trial, the prosecutor can argue that the defendant has nevertheless waived any objections to venue by failing to file a pre-trial motion. See State v. Brown, 85 N.C. App. 583 (1987) (“Questions of venue however are waived by the failure to make a pre-trial motion, even if the problem of venue arises from a variance between the indictment and the proof at trial.”). But if the variance is material and if it affected defendant’s ability to defend against the charge, the defendant may seek dismissal on those grounds. See State v. Spencer, 187 N.C. App. 605 (2007).
When a defendant makes a motion to dismiss for improper venue, the burden is on the state to show by a preponderance of the evidence that if an offense occurred, then it occurred in the county named in the indictment. In other words, when arguing a motion to dismiss for improper venue, the state does not have to prove that the crime actually occurred. State v. Louchheim, 32 N.C. App. 271 (1978), aff’d, 296 N.C. 314 (1979). Unlike some allegations of improper jurisdiction, the judge, rather than the jury, always decides whether the state has proved proper venue. State v. Bullard, 312 N.C. 129 (1984); State v. Louchheim, 32 N.C. App. 271 (1978), aff’d, 296 N.C. 314 (1979).
There is no double jeopardy bar to refiling charges in the proper venue following their pretrial dismissal for improper venue. See the related entry on Double Jeopardy for more information.
Transfer of Venue
Upon motion of the defendant (or prosecutor), or upon a written waiver of venue and consent of the parties, the court may transfer venue to another county or prosecutorial district for further proceedings. Each of these methods is discussed briefly below.
- Defense Motion
The court may transfer venue on the defendant’s motion if it determines that there exists such great prejudice in the county where the prosecution was initiated that defendant cannot receive a fair and impartial trial. See G.S. 15A-133(c); 15A-957; State v. Soyars, 332 N.C. 47 (1992); State v. Abbott, 320 N.C. 475 (1987); State v. Moore, 319 N.C. 645 (1987); State v. Williams, 319 N.C. 73 (1987); State v. Jerrett, 309 N.C. 239 (1983); State v. Watson, 310 N.C. 384 (1984). A motion for a change of venue must be timely made under G.S. 15A-952(c). Otherwise, venue is waived, and the court may not grant relief. G.S. 15A-952(e). The most common basis for a defense motion to change venue is an allegation that pretrial publicity has infected the entire community with prejudice and thereby deprived the defendant of the opportunity to receive a fair trial. See State v. Jerrett, 309 N.C. 239 (1983). Proceeding to trial under such circumstances would violate the defendant’s Constitutional due process rights, see Sheppard v. Maxwell, 384 U.S. 333 (1966), and statutory rights to a fair trial, see G.S. 15A-957; State v. King, 326 N.C. 662 (1990). The defense has the burden of proof on such a motion. See State v. Dobbins, 306 N.C. 342 (1982).
If the motion to change venue is denied and defendant is subsequently convicted, to prevail on appeal the defendant must show that: (i) jurors with prior knowledge of the matter decided defendant’s case; (ii) the defense exhausted all its peremptory challenges during jury selection; and (iii) a juror objectionable to the defense actually ended up serving on the jury. See State v. Billings, 348 N.C. 169 (1998); State v. Bonnett, 348 N.C. 417 (1998).
- State’s Motion
The state is not explicitly authorized by statute to make a motion for a change of venue. However, the North Carolina Supreme Court has ruled that a trial judge has the “inherent authority” to grant a change of venue on the state’s motion as both the state and the defendant are entitled to a fair trial. State v. Chandler, 324 N.C. 172 (1989); see also State v. Barfield, 298 N.C. 306 (1979) (judge’s change of venue based on state’s motion was proper); State v. Griffin, 136 N.C. App. 531 (2000) (similar ruling).
The Defendant and prosecutor may consent to a change of venue by stipulation or waiver. See G.S. 15A-133(a). A waiver must meet the following requirements: (i) be in writing; (ii) signed by both the defendant and the prosecutor; (iii) specify which stages of the proceeding are covered by the agreement; and (iv) name the county to which venue is transferred. If the transfer is to a different prosecutorial district, the written consent of the prosecutor in the receiving district must be filed with the clerks of both counties.
- Consolidated Plea
A defendant who is pleading guilty to one charge may ask for permission to plead guilty, as part of the same proceeding, to other charges which are pending in another judicial district. See G.S. 15A-1011(c) (note that the prosecutor in the other district must consent in writing). Entry of such a plea “constitutes a waiver of venue” as to those other charges. Id.
Transfer to Another County
If a judge determines that the defendant cannot obtain a fair and impartial trial in the county in which prosecution is pending, the judge must either order a special venire (discussed in next section) or order the proceedings transferred to another county. See G.S. 15A-957. If the judge orders a transfer, he or she may transfer the case to: (i) an adjoining county within the judicial district, or (ii) another county in an adjoining judicial district. See G.S. 15A-957. Though G.S. 15A-957 limits the superior court’s statutory power to transfer venue, a superior court judge has the inherent authority, in the interest of justice, to order a change of venue beyond those statutory territorial limitations, if necessary. See State v. Barfield, 298 N.C. 306 (1979); State v. Chandler, 324 N.C. 172 (1989) (trial judge has inherent authority to order change of venue based on state’s motion; judge’s findings of fact in this case supported order to change venue).
If a case is transferred to another district for prosecution, the prosecutor of the originating district must continue to prosecute the case, unless the prosecutor of the receiving district consents to the prosecution. See G.S. 15A-133(d).
If venue is changed, the grand jury in the county to which the case is transferred has the power to return an indictment in the case; if an indictment has already been returned, then no new indictment is necessary and the prosecution may move forward on the existing indictment. See G.S. 15A-133(e); 15A-631.
Special Venire from Another County
Rather than transferring venue to another county, G.S. 15A-958 provides that a motion for a special venire of jurors from another county may be made by the state, the defendant, or on the trial judge’s own motion. The judge in his or her discretion may grant the motion if the judge determines that a special venire is necessary to ensure a fair trial. An appellate court will not reverse the trial judge’s ruling unless there is an abuse of discretion. State v. Boykin, 291 N.C. 264 (1976); State v. Moore, 319 N.C. 645 (1987); State v. Kyle, 333 N.C. 687 (1993). See G.S. 9-12 for the procedure to secure a special venire. A trial judge also has the inherent authority to change venue for the purpose of conducting jury selection in another county. State v. Golphin, 352 N.C. 364 (2000).