Rule 12 Pleadings and Motions Before Trial; Defenses and Objections

(a) Pleadings and motions. — Pleadings in criminal proceedings shall be the indictment, the information or the citation, and the pleas entered pursuant to Rule 11. All other pleas, demurrers and motions to quash are abolished, and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules.

(b) Pretrial motions. — Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:

(1) Defenses and objections based on defects in the institution of the prosecution;

(2) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings);

(3) Motions to suppress evidence;

(4) Requests for discovery under Rule 16; or

(5) Request for a severance of charges or defendants under Rule 14.

(c) Mental illness or deficiency. — If it appears at any stage of a criminal proceeding by motion or upon the court’s own motion, that there is reasonable cause to believe that the defendant has a mental illness or deficiency making the defendant unfit to proceed, all further proceedings shall be suspended and an examination ordered as required by W.S. 7-11-301 et seq.

(d) Motion date. — Unless otherwise provided by local rule, the court may, at the time of the arraignment or as soon thereafter as practicable, set a time for the making of pretrial motions or requests and, if required, a later date of hearing.

(e) Notice by state of intention to use evidence. —

(1) At Discretion of State. — At the arraignment or as soon thereafter as is practicable, the state may give notice to the defendant of its intention to use specific evidence at trial in order to afford the defendant an opportunity to raise objections to such evidence prior to trial under subdivision (b)(3).

(2) At Request of Defendant. — At the arraignment or as soon thereafter as is practicable the defendant may, in order to afford an opportunity to move to suppress evidence under subdivision (b)(3), request notice of the state’s intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled to discover under Rule 16, subject to any relevant limitations prescribed in Rule 16.

(f) Ruling on motion. — A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determination shall be deferred if a party’s right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.

(g) Effect of failure to raise defenses or objections, or to make requests. — Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision

(d) , or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.

(h) Records. — A verbatim record shall be made of all proceedings at the hearing, including such findings of fact and conclusions of law as are made orally.

(i) Effect of determination. — If the court grants the motion based on a defect in the institution of the prosecution or in the indictment or information, it may also order that the defendant be continued in custody or that bail be continued for a specified time not to exceed 48 hours pending the filing of a new indictment or information.

(j) Production of statements at suppression hearing. — Except as herein provided, Rule 26.2 shall apply at a hearing on a motion to suppress evidence under subdivision (b)(3). For purposes of this subdivision, a law enforcement officer shall be deemed a witness called by the state, and upon a claim of privilege the court shall excise the portion of the statement containing privileged matter. Compare. — Rule 12, Fed. Rules Cr. Proc. General consideration.— Requirements of rule held followed. — Because the district court did not allow defendant to change his plea to guilty, there was no need for it to ascertain whether his decision to plead guilty was voluntary or accurate under this rule. 2021 WY 100, 2021 Wyo. LEXIS 109. County court not to determine, at preliminary hearing, whether counts in complaint merge. — It was not within the county court’s authority at a preliminary hearing to dismiss a count of a complaint on the ground that it merged with another count. The sole purpose of the preliminary hearing was to determine whether there was probable cause for detaining the accused pending further proceedings. Thereafter, pursuant to subdivision (b)(2), the defendant could have raised his motion to dismiss before the district court. State v. Carter, 714 P.2d 1217, 1986 Wyo. LEXIS 487 (Wyo. 1986). Application of subdivision (b)(2). — By its terms, subdivision (b)(2) applies to both procedural and constitutional defects in the institution of prosecutions which do not affect the jurisdiction of the trial court. Fuller v. State, 568 P.2d 900, 1977 Wyo. LEXIS 310 (Wyo. 1977). Validity of amended indictment waived if not presented by motion under subdivision (b)(2) of this rule. Fuller v. State, 568 P.2d 900, 1977 Wyo. LEXIS 310 (Wyo. 1977). Failure to object. — By failing to object to prejudicial joinder of charges before trial, defendant waived any objection to the joinder and did not properly preserve issue for appeal. Cox v. State, 964 P.2d 1235, 1998 Wyo. LEXIS 127 (Wyo. 1998). The Supreme Court held that a defendant’s failure to assert an objection or defense through a pretrial motion required by Wyo. R. Crim. P. 12(b)(3) is a bar to appellate review of the claim unless good cause is shown for the failure to make the required filing; thus, because defendant, who was convicted of delivery of a controlled substance, did not file a pretrial motion to suppress the identification evidence against him, as required by rule 12(b)(3), he failed to preserve his due process claim for appellate review. Rodriguez v. State, 2019 WY 25, 435 P.3d 399, 2019 Wyo. LEXIS 25 (Wyo. 2019). Defense of double jeopardy waived if not raised before trial court. — A claimed defense of double jeopardy, if it was to be interposed, should have been raised by motion pursuant to this rule. Since it was not raised before the trial court, it was waived. Hutchins v. State, 483 P.2d 519, 1971 Wyo. LEXIS 213 (Wyo. 1971); Peterson v. State, 586 P.2d 144, 1978 Wyo. LEXIS 238 (Wyo. 1978), overruled, Crozier v. State, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986). Motions calling for pretrial determination of evidence admissibility. — A motion in limine, a motion to suppress or a motion to exclude call for a pretrial determination that certain potential evidentiary matters or items are inadmissible at the trial. The modification or rescission of such orders is permitted and is subject to the same considerations and results as those made before the trial. Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979). Motion to suppress. — Where the police and fire departments responded to a report of a vehicle on fire outside of a mobile home owned by defendant, where no one was present at the mobile home but defendant’s girlfriend arrived and admitted to the police that she had contraband inside of the mobile home, where the girlfriend consented to allow the police to enter to retrieve the small amount of drugs she admitted to possessing, where defendant arrived upon the scene and declined to allow the police to search further, where an officer indicated that hey would apply for a search warrant and that probable cause existed for the warrant based upon the amount of drugs already recovered, and where defendant thereafter consented to a search, which uncovered a significant amount of marijuana, the trial court did not err in denying defendant’s suppression motion because defendant’s consent to the search was voluntarily given and was not coerced. Johnson v. State, 2010 WY 47, 228 P.3d 1306, 2010 Wyo. LEXIS 49 (Wyo. 2010). Motion to suppress must be timely filed. — A motion to suppress must be made prior to the adjudicatory hearing unless good cause is demonstrated as to why the motion was not filed on time. The rule affords discretion to the court to grant relief from the failure to make the motion for good cause shown. In re LDO v. State, 858 P.2d 553, 1993 Wyo. LEXIS 140 (Wyo. 1993). Violation of improper order not error. — Where the order in limine was founded on the faulty premise that certain testimony was statutorily inadmissible, the order was improper and a violation of it was not prejudicial error. Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979). Order either modified or rescinded. — In ruling against appellant on his motions for mistrial, for judgment of acquittal and for judgment notwithstanding the verdict, and in allowing certain testimony to stand, the court either modified or rescinded the order in limine which had prohibited such testimony or ruled that the testimony was not violative of the order. Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979). Minimal probation revocation notice gives adequate notice. — Where notice to defendant of revocation of probation, as contained in a prosecuting attorney’s motion, is minimal, but the defendant had been informed at his original sentencing in no uncertain terms that violations such as those enumerated in the motion would be grounds for revocation and the offenses are clearly described in the motion and it is clear from the motion that the offenses occurred in a certain county between defendant’s original sentencing and the date of the motion, the defendant has adequate notice of the charge against him, particularly in view of his failure to move for additional information or to request a continuance. Murphy v. State, 592 P.2d 1159, 1979 Wyo. LEXIS 395 (Wyo. 1979). Defects going to form only waived if not challenged prior to plea. — Defects in the institution of criminal proceedings and in the indictment or information which go to form only and not to substance are waived if they are not challenged by a proper motion or pleading prior to the entry of a plea. Cheatham v. State, 719 P.2d 612, 1986 Wyo. LEXIS 553 (Wyo. 1986). Mental illness. — Defendant sentenced to death for kidnapping, rape, torture, and murder was competent to stand trial under Wyo. Stat. Ann. § 7-11-302 and Wyo. R. Crim. P. 12(c) despite his depression, mental illness, and emotional outbursts during trial. Eaton v. State, 2008 WY 97, 192 P.3d 36, 2008 Wyo. LEXIS 103 (Wyo. 2008), reh’g denied, 2008 Wyo. LEXIS 114 (Wyo. Sept. 15, 2008), cert. denied, 555 U.S. 1187, 129 S. Ct. 1346, 173 L. Ed. 2d 613, 2009 U.S. LEXIS 1251 (U.S. 2009).