Two recent cases from the North Carolina appellate courts indicate that reports of the demise of technical pleading requirements may have been greatly exaggerated. I am responsible for at least one of those reports. Several years ago, I posted about State v. Brawley, 370 N.C. 626 (2018) (per curiam), in which the North Carolina Supreme Court affirmed a conviction based on an indictment charging the defendant with stealing shirts belonging to “Belk’s Department Stores, an entity capable of owning property,” even though “Belk’s Department Stores” was not the full legal name of the entity that suffered the loss. I noted then that Brawley was one in a series of recent state supreme court opinions rejecting claims that technical pleading defects deprived the trial court of jurisdiction over the offense. See also State v. Jones, 255 N.C. App. 364 (2017) (failure to allege every element in a citation was not a jurisdictional defect).
Yet, in recent months, the North Carolina Court of Appeals has issued two published opinions vacating convictions based on fatally defective indictments. The first was a rape conviction pursuant to an indictment that failed to allege the defendant knew the victim was physically helpless. State v. Singleton, 285 N.C. App. 630 (2022). The second was a conviction for possessing a firearm at a protest where the pleading failed to state that the offense occurred on public property. State v. Reavis, __ N.C. App. __, 882 S.E.2d 590 (2022). To be sure, each of these cases involves the failure to plead elements of the offense, which is distinguishable from the victim-naming requirements in Brawley and related cases. Nevertheless, each relies on the notion that defects in an indictment deprive the court of its power to adjudicate a case, even when the pleading is sufficient to pass constitutional muster. This post will discuss these cases and consider potential future developments.
State v. Singleton, 285 N.C. App. 630 (2022). The defendant in Singleton was convicted of second-degree forcible rape and first-degree kidnapping in connection with an encounter he had when he was 63 years old with an intoxicated 18-year-old female college student (“Jane”) during the early morning hours of November 27, 2017. Jane recalled drinking at a bar and dancing until 2 a.m. Her next memory was awakening at 5:25 a.m. inside the defendant’s car in a parking lot several blocks from the bar. The defendant was on top of her and was engaging in sexual intercourse with her. She told the defendant to get off of her and he complied. She ran from the defendant’s car to a gas station where she called her sister for help.
On appeal, the defendant challenged the superior court’s jurisdiction to try him for the rape on the grounds that the indictment failed to allege that he knew or reasonably should have known the victim was physically helpless.
The indictment alleged that the defendant:
unlawfully, willfully, and feloniously did engage in vaginal intercourse with [Jane], who was at the time, physically helpless. This act was done in violation of NCGS § 14-27.22.
By way of contrast, the recommended language from Jeff Welty’s Arrest Warrant and Indictment Forms (2023 ed.) for these circumstances is that the defendant:
. . . unlawfully, willfully, and feloniously did carnally know and abuse (name victim), who at the time was physically helpless. The defendant knew or should reasonably have known that the victim was physically helpless.
The Court of Appeals noted that while there was sufficient evidence at trial to show that the defendant knew or reasonably should have known that Jane was physically helpless, the indictment omitted this allegation.
The State argued that the indictment language satisfied the requirements for a short-form indictment under G.S. 15-144.1(c), which provides that if the victim is physically helpless, it is sufficient to allege that “the defendant unlawfully, willfully, and feloniously did carnally know and abuse a person . . . who was . . . physically helpless.” Here too, the Court of Appeals found that the Singleton indictment fell short.
While the averment that the defendant “engaged in vaginal intercourse” substituted for “did carnally know,” the Court reasoned that the indictment contained no substitute for “abuse,” the stand-in for alleging that the defendant knew and took advantage of the victim’s physical inability to resist his advances.
The Singleton Court explained that while the United States Supreme Court rejected decades ago the notion that a defective indictment necessarily deprives a trial court of jurisdiction, see United States v. Cotton, 535 U.S. 625 (2002), a view now that the Court said is now shared by a majority of state courts, see, e.g., State v. Dunn, 375 P.3d 332 (Kan. 2016), North Carolina has continued to adhere to the minority view that the failure to allege each element of a crime is a jurisdictional defect that may be raised at any time.
The Court thus held that the rape indictment was fatally defective and failed to convey jurisdiction on the trial court. The Court vacated the rape conviction “without prejudice to the State to re-indict,” stating that the defendant was not placed in jeopardy as the trial court lacked jurisdiction. See State v. Whitley, 264 N.C. 742 (finding that the defendant’s conviction on a bill of indictment returned after a previous indictment was ruled fatally defective was not barred by double jeopardy). The Court further stated that the defendant was free to challenge a new indictment for failure to comply with the requirements for joinder of offenses under G.S. 15A-926(c) or any other law.
State v. Reavis, __ N.C. App. __, 882 S.E.2d 590 (2022). The defendant in Reavis was convicted in both district and superior court of possessing a dangerous weapon at a demonstration in violation of G.S. 14-277.2(a). The defendant was arrested in October 2019 at a protest over the removal of a Confederate monument at the historic Hillsborough Courthouse after an officer spotted a concealed gun at her waist.
At the close of the evidence in her superior court trial, the defendant moved to dismiss the charges on the basis that the pleading, a misdemeanor statement of charges, was fatally defective for failing to specify that the demonstration was in a public place, as required by the statute. The misdemeanor statement of charges stated that the defendant “did unlawfully and willfully possess a dangerous weapon while participating in, affiliated with, or present as a spectator at a demonstration.” In response, the State moved under G.S.15A-922(f) to amend the pleading to include this allegation. The superior court allowed the amendment, and the defendant was convicted.
On appeal, the defendant argued that the misdemeanor statement of charges was fatally defective and that the superior court erred by allowing the State to amend it. The Court of Appeals agreed and vacated her conviction.
The Court purported to rest its analysis on statutory grounds, namely the failure of the pleading to “identify every essential element of the offense” in compliance with G.S. 15A-924(a)(5), which requires that each count “assert facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation.” Nevertheless, in stating that omission of an element required the court to vacate a defendant’s conviction, the Court relied on jurisprudence establishing that this sort of defect is fatal and deprives the court of jurisdiction. See Reavis, 882 S.E.2d at 594 (citing State v. Barnett, 223 N.C. App. 65 (2012); State v. Harris, 219 N.C. App. 590 (2012)).
The Court noted that Reavis’s conviction was vacated without prejudice. Incidentally, it appears that the two-year statute of limitations for misdemeanors would not bar her re-prosecution since misdemeanor charges may be refiled within one year following a determination that a pleading is defective. G.S. 15-1(a).
What’s next? While Singleton and Reavis can fairly be characterized as relying on technical rules of pleading to confer jurisdiction, thereby bucking the Brawley trend, neither case represents a departure from state law precedent. Indeed, after reviewing relevant precedent, the Singleton Court said it had “no choice” but to vacate the defendant’s rape conviction. 285 N.C. App. at 624.
In March 2023, the North Carolina Supreme Court granted review in Singleton. On review, the state supreme court could, of course, disavow the precedent the court of appeals deemed controlling. Were it so inclined, the court might look to the Supreme Court of Kansas’s opinion in Dunn for guidance. See State v. Dunn, 375 P.3d 332 (Kan. 2016). The Dunn Court held that none of the following pleading defects deprive Kansas state courts of jurisdiction: (1) failure to show the case has been brought in the right court in the right territory; (2) failure to state facts that would constitute a crime; or (3) failure to ensure observance of constitutional rights to due process and notice. Instead, Dunn reasoned that these three types of defects are, respectively, state constitutional error, statutory error, and federal and state constitutional error. Id. at 358. The appropriate remedy for each depends on the nature of the defect and the time and circumstances in which it is raised. Id.
On the other hand, the North Carolina Supreme Court may decide to stay the course on its fatal defect jurisdictional jurisprudence, affirming the decision below. A third way could be for the court to affirm the principle that fatally defective indictments deprive the court of jurisdiction, but to determine that the Singleton indictment was not defective as it “asserted facts supporting every element” of the offense of second-degree forcible rape as required by G.S. 15A-924(a)(5) and was “sufficient in form” as it expressed “the charge against the defendant in a plain, intelligible, and explicit manner,” pursuant to G.S. 15-153.
This latter approach is akin to that taken by the state supreme court in State v. Williams, 368 N.C. 620 (2016). There, the Court determined that an indictment charging the defendant, a registered sex offender, with failure to timely report a change of address “adequately apprised defendant of the conduct that was the basis of the charge against him,” notwithstanding its failure to state that the report had to be made within three business days and its listing of a five-month time span for the offense. Id. at 620. In so holding, the Williams Court noted that “it is not the function of an indictment to bind the hands of the State with technical rules of pleading.” Id. at 623 (internal quotations omitted).
For now, it continues to be imperative for prosecutors to check, double-check, and triple-check pleadings to ensure that they contain every statutory element. And defendants remain on firm ground to challenge their convictions if they don’t.