A criminal indictment must allege an offense date. G.S. 15A-924(a)(4) provides that a criminal pleading must contain “[a] statement or cross reference in each count indicating that the offense charged was committed on, or on or about, a designated date, or during a designated period of time.” The statutory short forms reiterate this requirement. See, e.g.,G.S. 15-144.1 (rape); G.S. 15-144.2 (sex offense). However, a judgment won’t be reversed when the indictment fails to allege or incorrectly alleges a date or time, if time is not of the essence of the offense and the error or omission did not mislead the defendant.See G.S. 15-155; G.S. 15A-924(a)(4); State v. Price, 310 N.C. 596, 599 (1984). Likewise, when time is not of the essence, an amendment as to date does not substantially alter the charge. Time becomes of the essence when an omission or error regarding the date deprives a defendant of an opportunity to adequately present his or her defense, Price, 310 N.C. at 599, and this can occur when the defendant relies on an alibi defense. See State v. Stewart, 353 N.C. 516, 518 (2001).
The recent Court of Appeals case, State v. Avent, __ N.C. App. __, __ S.E.2d __ (Aug. 7, 2012), applies these rules. Avent was a murder case in which the indictment alleged an offense date of December 28, 2009. The trial court allowed the State to amend the date offense to December 27, 2009. After he was convicted, the defendant appealed arguing that because he raised an alibi defense, time was of the essence and the amendment was improper. The court disagreed, finding that the amendment did not deprive the defendant of an ability to adequately present his defense and that he wasn’t misled by the error. The evidence showed that the victim was shot around 5:00 pm on December 27, 2009 in Rocky Mount. At trial, the defendant’s alibi witness, Quincy Johnson, testified that he picked up the defendant on December 27, 2009 in Rocky Mount between 3:00 and 3:30 pm. The two arrived at a house in Tarboro around 4:00 pm. After spending some time together Johnson left to drive someone to work. When Johnson returned to the house the next morning, the defendant was at the house in his pajamas.
The court concluded that the defendant “presented his alibi defense” and thus was not deprived of an opportunity to adequately present a defense. The court also noted that the State’s evidence included two eyewitness statements and the victim’s autopsy report, all of which listed the date of the murder as December 27, 2009. The defendant made no argument that he wasn’t aware of this evidence well before trial. Significantly, there wasn’t any suggestion that Johnson could have been more specific about when he left the defendant at the house on the 27th or that another alibi witness could have accounted for the defendant’s whereabouts at the time of death. In any event, Avent amplifies this basic point: an alibi defense doesn’t necessarily preclude amendment of offense date.
For many more cases on amending the indictment’s allegation of offense date, see my paper here.