The North Carolina Supreme Court’s opinion in State v. Singleton, No. 318PA22, __ N.C. __ (2024), brings about a transformation of North Carolina indictment law. The case “ends [a] centuries old saga” in deciding that the “common law jurisdictional indictment rule” is “no longer the law in this State.” Slip. op. 3, 40. My colleague, Joe Hyde, delved into the analysis and history set forth in the 84-page opinion here. This post will elaborate on the potential consequences for practitioners.
As a new lawyer learning about the concept of jurisdictional indictment errors, I thought of the elements set forth in an indictment as links in a chain. If one of the links was missing or broken, the chain failed to hold, and the pleading was defective. To use another analogy, if the State failed to assert facts supporting each element of the charge, the pleading could not hold water, and the court lacked authority to impose a judgment. See State v. Rankin, 371 N.C. 885 (2018). However, after Singleton, these analogies are no longer applicable.
At its core, Singleton establishes that an alleged indictment defect should be analyzed by considering whether the defendant’s statutory rights or constitutional due process and notice rights were violated. It will still be necessary to determine whether the State violated G.S. 15A-924(a)(5) by failing to assert facts supporting each essential element of the charge. But because the question is no longer jurisdictional in nature (except where the indictment “wholly fails to allege a crime”), prejudice must now be considered on appeal. See G.S. 15A-1443.
How does this affect defense strategy?
Prior to Singleton, it was often strategically advantageous for the defense to attack an indictment mid-trial. The defense could move to dismiss for lack of jurisdiction at the close of the State’s case, at the close of all evidence, or really at any time (an indictment could be found “fatally defective” on appeal or in post-conviction proceedings, long after the trial had concluded). The theory was that the court never had jurisdiction to try the case on an indictment that didn’t hold water.
This allowed the defense to take the case all the way through trial, assessing the State’s case and getting a free bite at the apple at a potential acquittal. The State is barred from retrying a matter if the Defendant is acquitted, even where the indictment is jurisdictionally defective (see Jeff Welty’s post here). If the defense prevails in quashing a fatally defective indictment before or after a guilty verdict, the State is free to retry the matter, but may choose not to do so. There was rarely an incentive for the defense to move to dismiss prior to trial, as this would allow the State the opportunity to remedy the defect in the pleading before empaneling a jury.
The North Carolina Supreme Court articulates disapproval of this defense strategy in Singleton, invoking a case from 1894 likening the practice to improperly “reserv[ing]… fire,” or sandbagging. See Singleton, slip op. 31, n. 14 (citing State v. Shade, 115 N.C. 757 (1894)). Apparently finding the strategy contrary to the fair and orderly administration of justice, the court disincentivizes the practice by requiring indictment errors to be raised in a timely fashion. The court in fact explicitly urges future defendants to adopt the “better practice” of raising indictment challenges earlier in the proceedings. Slip op. 41. Why? Because under the post-Singleton framework, it is possible to waive an indictment challenge if the defendant does not timely file the motion to dismiss. Further, to prevail on a non-jurisdictional indictment challenge, the defendant now has to demonstrate prejudice. In some circumstances, it may be difficult for the defendant to persuasively argue that he lacked sufficient notice if he waits until after trial has begun to raise the argument that the indictment fails to provide notice. If the defendant really wanted more detail from the State to prepare his defense, why did he wait until the middle of trial to complain? Why didn’t he move to quash ahead of trial, or even better, file a bill of particulars demanding that the State provide additional factual allegations? See G.S. 15A-925.
Of course, where the defendant asserts the indictment lacks an essential element or files a request for a bill of particulars, and the court does not grant any relief, the defendant’s case for prejudice on appeal will be much stronger. But the supreme court states that it will be “difficult to imagine” the defendant meeting the prejudice prong where such mechanisms as open file discovery, see G.S. 15A-903, and a motion for a bill of particulars exist. Slip. op. 42, n. 16.
When must defendants challenge indictments to avoid waiver?
In certain situations involving a potential indictment defect, the defense will be motivated to timely file a motion to dismiss the indictment prior to trial pursuant to G.S. 15A-924(e). Under G.S. 15A-952(c), the motion must be filed within 21 days of return of indictment where no written request for arraignment is filed, and before arraignment where a written request is filed. The same timing rules apply to motions for a bill of particulars under G.S. 15A-925. See 15A-952(b)(6)(c); 15A-952(e); 15A-925(b) (“[a] motion for a bill of particulars must request and specify items of factual information desired by the defendant which pertain to the charge and which are not recited in the pleading, and must allege that the defendant cannot adequately prepare or conduct his defense without such information”).
But doesn’t the court say that both jurisdictional and non-jurisdictional indictment errors are automatically preserved?
A challenging aspect of the opinion is the question of preservation. On the one hand, the court states that where the defendant fails to timely file a motion to dismiss on the grounds that the indictment fails to assert facts supporting every element of the charge, this challenge will be waived. Slip. op. 31-32 (citing G.S. 15A-952(e)). Such a motion now rests on statutory and constitutional grounds rather than jurisdictional grounds, and thus is subject to waiver.
However, elsewhere in the opinion, the court states that Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure provides that whether a criminal charge is sufficient in law is automatically preserved for appellate review. The courts says this is the case for all types of alleged indictment defects, “jurisdictional or otherwise.” Slip. op. 41. See also, State v. Simpson, No. COA23-618, __ N.C. App. __ (2024), slip op. 4, (citing Singleton).
How can automatic preservation be squared with the idea that the defendant can waive the challenge? Is it the case that the defendant can waive the opportunity to obtain dismissal of the charge at trial, but the statutory violation can still be addressed on appeal? This seems strange in light of the general principle requiring defendants to object and raise alleged errors at trial so the trial judge gets a chance to address issues prior to the appellate court weighing in.
However the dilemma is resolved, what is clear is that on appeal the defendant will have to show prejudice, at least for purely statutory violations. See G.S. 15A-1443(a). As for constitutional violations, if the defendant timely objects and an appellate court agrees that the violation was constitutional in nature, the burden shifts to the State to show the error was harmless beyond a reasonable doubt. See G.S. 15A-1443(b).
The longer the defendant waits to raise the challenge, the more difficult it will be to demonstrate that the defendant was prejudiced. Slip. op. 43. To fully preserve potential arguments, defenders should consider lodging a statutory objection pursuant to G.S. 15A-924(a)(5) as well as constitutional due process and notice objections under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.
Takeaways for practitioners and issues on the horizon
How should practitioners modify their strategy after Singleton? For one, it seems clear that indictment challenges, broadly speaking, are less likely to succeed after Singleton. Minor technical misstatements or omissions, such as failing to include the letters “Inc.” after the name of a victim/business in a larceny indictment, will almost certainly be found to be non-jurisdictional after Singleton (this was likely already the case after State v. Brawley, discussed by Shea Denning, here).
Thus, in many cases, it may no longer be sound strategy to spring an indictment challenge mid-trial. If such an attack is unlikely to succeed, defenders should be wary about relying on the strategy as a trump card.
Whereas the previous remedies for a fatally defective pleading, dismissal or a vacated conviction, were momentous ones, the remedy for a violation brought to the attention of the court prior to trial is likely to be much more modest. The defendant may win a continuance for the State to amend the indictment or seek a new indictment (note that in district court, when the State supersedes a misdemeanor pleading by filing a statement of charges, the defendant is generally entitled to a continuance of at least three working days, see G.S. 15A-922(b)(2), (3)). Alternatively, the defendant may successfully compel the State to provide additional details regarding the allegations (potentially in response to a bill of particulars). However, final dismissal will be a rare outcome. Defenders should consider whether to seek a potentially minimal benefit by raising the challenge pretrial, or wait until mid-trial to raise the attack, despite the N.C. Supreme Court’s explicit advice against doing so.
Even in the face of the court’s urging, there may still be situations where mid-trial attack is preferable. For example, how should a defender proceed where an indictment properly alleges a lesser-included offense, but appears to be missing an element that the State ostensibly meant to include to enhance the offense? Let’s say the caption of an indictment alleges first degree kidnapping, but the body only sets forth elements sufficient to charge second degree kidnapping. It seems odd for the defense to file a pretrial motion inviting the State to add an element. Cases such as State v. Billinger, 213 N.C. App. 249 (2011), state that the language in the body of the indictment is what controls, not the caption. See Billinger (citing State v. Bennett, 271 N.C. 423 (1967)). Thus, a mid-trial challenge might result in the defendant being exposed to second degree punishment rather than first degree, with double jeopardy principles precluding retrial. But after Singleton, will the case law holding that only the body, not the caption, controls be revisited by our appellate courts? Must the defendant object before trial, asserting lack of notice as to what element the State intended to rely on to enhance the crime from second degree to first degree? I don’t believe the answer is clear yet.
The logic in Billinger may have been implicitly overruled by Singleton. Billinger relied on a framework in which the validity of the indictment was determined only by reference to what was contained within the four corners, and alleging the essential elements of the crime was necessary to confer jurisdiction. After Singleton, the analysis is no longer jurisdictional, and our courts must now consider questions pertaining to notice and prejudice that spill out beyond the four corners of the indictment. There is a hint of this new approach in last week’s opinion in State v. Simpson, No. COA23-618, __ N.C. App. __ (2024). In Simpson, the Court of Appeals found no error in the indictment and thus did not engage thoroughly with the question of notice. Slip. op. 4-8. However, in rejecting the defendant’s argument that the indictment for uttering a forged endorsement lacked sufficient precision in describing the check at issue, the court pointed out that the defendant received a copy of the check in discovery. This analysis foreshadows debates to come, as the future of indictment litigation will likely take into account what was provided in discovery, communication between the parties, and analysis of defense strategy. If these are all pertinent considerations in evaluating notice and prejudice after Singleton, the caption and stated charge may very well be included in the analysis.
With the law in flux after Singleton, other questions arise. Chiefly, what does it mean for an indictment to “wholly fail” to allege a crime? Put differently, which errors remain jurisdictional in nature and which errors are subject to waiver? The example the court gives, “wearing a pink shirt on a Wednesday,” is a pretty clear one, but courts will grapple with harder questions in years to come.
As much remains to be seen, prosecutors should refrain from depositing their indictment form books in the dustbin. Even if the remedies for defects timely raised by the defense are potentially more modest, prosecutors are still incentivized to “get it right” in the first place to comply with due process, foreclose potential challenges, and avoid delays that may arise from the need to seek a superseding indictment or obtain an amendment of an existing indictment.
Stay tuned.