Case Summaries: N.C. Supreme Court (June 16, 2023)

This post summarizes the published criminal opinions from the Supreme Court of North Carolina released on June 16, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Indictment that combined possession of a firearm by a felon with two other firearm charges was not fatally defective despite statutory requirement for separate indictment.

State v. Newborn, 330PA21, ___ N.C. ___ (June 16, 2023). In this Haywood County case, the Supreme Court reversed a unanimous Court of Appeals decision and reinstated defendant’s conviction for possession of a firearm by a felon.

In April of 2018, defendant was pulled over for driving with a permanently revoked license. During the stop, the officer smelled marijuana; defendant admitted that he had smoked marijuana earlier but none was in the vehicle. Based on the smell and defendant’s admission, the officer decided to search the vehicle, eventually discovering two firearms. Defendant was charged in a single indictment with possession of a firearm by a felon, possession of a firearm with an altered or removed serial number, and carrying a concealed weapon. At trial, defendant did not challenge the indictment, and he was ultimately convicted of all three offenses.

On appeal, defendant argued the indictment was fatally flawed, as G.S. 14-415.1(c) requires a separate indictment for possession of a firearm by a felon. The Court of Appeals agreed, vacating defendant’s conviction based on State v. Wilkins, 225 N.C. App. 492 (2013), and holding that the statute unambiguously mandates a separate indictment for the charge.

After granting discretionary review, the Supreme Court disagreed with the Court of Appeals, explaining that “it is well-established that a court should not quash an indictment due to a defect concerning a ‘mere informality’ that does not ‘affect the merits of the case.’” Slip Op. at 6, quoting State v. Brady, 237 N.C. 675 (1953). The court pointed to its decision in State v. Brice, 370 N.C. 244 (2017), which held that failure to obtain a separate indictment required by a habitual offender statute was not a jurisdictional defect and did not render the indictment fatally defective. Applying the same reasoning to the current case, the court explained that “the statute’s separate indictment requirement is not jurisdictional, and failure to comply with the requirement does not render the indictment fatally defective.” Slip Op. at 9. The court explicitly stated that Wilkins was wrongly decided and specifically overruled. Id.

Justice Morgan dissented, and would have upheld the Court of Appeals opinion and the reasoning in Wilkins finding that the lack of a separate indictment required by G.S. 14-415.1(c) was a fatal defect. Id. at 11.

Whether fentanyl was an opiate for purposes of trafficking statute was a question of law not fact.

State v. Gibbs, 402A21, ___ N.C. ___ (June 16, 2023). In this New Hanover County case, the Supreme Court per curiam vacated and remanded an unpublished Court of Appeals opinion that reversed defendant’s conviction for trafficking by possession of an opiate. The Court of Appeals majority ruled that the trial court abused its discretion by ruling that the State’s expert was qualified to testify that fentanyl is an opiate. The State appealed based on the dissent, which held that it was not an abuse of discretion to allow the expert’s testimony.

The Supreme Court explained that the trial court erred by treating the issue as a fact question, as “whether fentanyl was an opiate for purposes of the trafficking statute in 2018 is a question of law.” Slip Op. at 3. As such, the court concluded that “[b]ecause it is a legal question of statutory interpretation, it was not necessary to have expert testimony to establish whether fentanyl is an opiate.” Id. The court remanded to the Court of Appeals for consideration of whether fentanyl was an opiate under the version of the trafficking statute in effect at the time of the events in the case.

Witness’s testimony represented additional competent evidence for the revocation of defendant’s probation.

State v. Bradley, 105A22, ___ N.C. ___ (June 16, 2023). In this Moore County case, the Supreme Court per curiam affirmed and modified State v. Bradley, 282 N.C. App. 292 (2022), a case where the Court of Appeals majority concluded the trial court did not err by revoking defendant’s probation after finding substantial evidence showed defendant had possessed controlled substances. The Supreme Court noted there was additional competent evidence through the testimony of one witness to support the trial court’s findings of fact and conclusions of law. The court modified the opinion of the Court of Appeals to the extent that “the lower appellate court may have mistakenly misconstrued [the witness’s] statements as incompetent evidence upon which the trial court could not and did not rely.” Slip Op. at 2.