Indicting for a Misdemeanor in Superior Court After a Grand Jury Presentment

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District court has original jurisdiction to try misdemeanors, so a misdemeanor usually arrives in superior court after a defendant is convicted of a misdemeanor in district court and appeals for a trial de novo in superior court. However, there are exceptions to the district court’s original jurisdiction that allow a superior court to handle a misdemeanor without any action in district court. For example, when (1) it is a lesser-included offense of a felony, (2) it is transactionally-related to a felony under G.S. 15A-926 (trying misdemeanor possession of drug paraphernalia with trafficking in marijuana), (3) there is a guilty or no contest plea in lieu of a felony, or (4) a misdemeanor is initiated by grand jury presentment and subsequent indictment, which is the topic of this post. See G.S. 7A-271, -272.

Because a presentment is rarely used, most people in the criminal justice system understandably know little about it. The presentment has a long history in North Carolina, having been used since statehood. It was originally a method by which a grand jury could bring a criminal charge on its own without an indictment and without the involvement of a prosecutor. But, as early as 1797, the North Carolina General Assembly enacted legislation to prohibit a trial by presentment alone. Instead, the grand jury’s return of a presentment requires a prosecutor to investigate the presentment’s allegations and submit an indictment if appropriate. G.S. 15A-641(c). For additional history on presentments, see State v. Thomas, 236 N.C. 454 (1952).

Although a grand jury could investigate an offense on its own and decide whether to issue a presentment, today a presentment will almost always be returned after a prosecutor has submitted a draft presentment to the grand jury with a testifying witness or witnesses. That occurred in State v. Gunter, 111 N.C. App. 621 (1993), a DWI case. G.S. 15A-628(a)(4) recognizes a prosecutor’s role (or a judge’s) in such a procedure.

A presentment alleging a misdemeanor allows a prosecutor to submit an indictment for that misdemeanor, State v. Birdsong, 325 N.C. 418 (1989), or related misdemeanors, State v. Cole, 294 N.C. 304 (1978). If the grand jury issues an indictment, the State tries the misdemeanor in superior court without any trial or other proceeding having occurred in district court—although a presentment may also be returned for a misdemeanor that is currently pending in district court but has not been tried yet. In such a case, the superior court supplants the district court’s jurisdiction over the misdemeanor. State v. Gunter, 111 N.C. App. 621 (1993).

Why would the State expend the time and effort with a presentment and subsequent indictment for a misdemeanor so it can be initially tried in superior court? The State might use the presentment process when it expects a district court trial to be lengthy, involve several witnesses, etc., and if the defendant is convicted, an appeal for a trial de novo in superior court is highly likely. So one trial instead of two may ultimately save time and effort. Other reasons include cases that involve public figures or officials or cases that have received significant publicity.

12 comments on “Indicting for a Misdemeanor in Superior Court After a Grand Jury Presentment

  1. What discovery rights would this require?

    • Because the presentment and indictment procedure for a misdemeanor places that misdemeanor within the original jurisdiction of superior court, I believe that the discovery statutes in Article 48 of Chapter 15A apply. See G.S. 15A-901.

  2. Are a defendant’s constitutional protections violated where the state prosecutes one defendant by presentment while others similarly situated are prosecuted in district court?

    Did the GA in enacting the Motor Vehicle Drivers Protection Act of 2006 intend to remove DWIs from this method of prosecution?

  3. Prosecutors have broad discretion whether to prosecute a person with a crime. A defendant seeking to dismiss a charge based on selection prosecution has the burden to prove that (1) the defendant had been selected for prosecution while others similarly situated who committed the same acts have not been prosecuted; and (2) the discriminatory selection for prosecution was invidious and done in bad faith, resting on such impermissible considerations as race, religion, or the desire to prevent the defendant’s exercise of constitutional rights. State v. Pope, 213 N.C. App. 413 (2011); State v. Davis, 96 N.C. App. 545 (1989). Your question is even narrower than selective prosecution, namely the method by which a DWI charge was brought. I doubt that North Carolina appellate courts would likely recognize such a challenge or, if they did, would impose an extraordinary burden on a defendant beyond that required by a selective prosecution challenge, to justify a dismissal based on the method by which a charge was brought.

    The Motor Vehicle Drivers Protection Act of 2006, as it apparently relates to your question, essentially enlarged the State’s opportunity to seek superior court review of a defendant’s motions to dismiss and suppress evidence in district court in DWI cases. I do not believe there is any basis to successfully challenge the State’s authority under G.S. 15A-641(c) to charge a misdemeanor through the presentment process, based on the enactment of this 2006 act. North Carolina appellate courts do not generally recognize a repeal or amendment of a statute through implication. If the North Carolina General Assembly in 2006 had intended to bar a DWI charge brought through the presentment process, it would have amended G.S. 15A-641(c) or amended or enacted another statute to do so.

  4. Bob,
    Thank you for your comments and insight. Hope you are doing well

  5. A presentment must be “made on its own motion” (meaning on the grand jury’s own motion as opposed to on the suggestion/motion of a prosecutor or prosecutor’s agent). § 15A-641. If the presentment is made by motion from a prosecutor or prosecutor’s agent (a “draft presentment” as you wrote above), then by definition the result is not a presentment. It is perhaps a defective indictment. The crucial element making a presentment a presentment is that the presentment is made on the grand jury’s own motion, not at anyone else’s suggestion. Am I misreading the statute? (It appears to be written in English.)

    • Bob emailed the following response to this comment: G.S. 15A-641 needs to be read together with the provision in G.S. 15A-628(a)(4), which in pertinent part states, “An investigation may be initiated upon the concurrence of 12 members of the grand jury itself or upon the request of the presiding or convening judge or the prosecutor (underling added).” Thus, an investigation possibly leading to the issuance of a presentment may be initiated by the request of a prosecutor. A prosecutor who provides the grand jury with a draft of a presentment merely provides the grand jury with proposed language for a presentment if the grand jury decides to issue one. The actual presentment is a legal document that was “made on its own motion” and “filed with a superior court” as described in G.S. 15A-641(c).

  6. God forbid that grand jurors, at least of the caliber we see in rural counties, take it upon themselves to initiate charges. the grand jury pool in Macon and Jackson Co.’s are made up of the most pliable and uneducated people imaginable. I hate to call people rubes, but after seeing cases of indictments where it was totally improper and a simple knowledge of the English language would have precluded action on their part, I do not feel it unfair.

    Prosecutors for the most part have no qualms about seeking indictments when they know that it is improper, and when jurors are nothing but rubber stamps justice is denied. for example, I know of a case where a defendant denied all charges and refused a plea deal. His attorney wrote up statements ” denying all allegations” and directed the defendant to take them to a notary to sign. The prosecutor, along with a now disgraced detective, decided that since the defendant had denied ” all allegations ‘ in the warrant affidavit and charges, then he must have been denying that he lived at his address!! Thats right..because the defendants name and address were listed as foundational info at the beginning of the affidavit narratives, they convinced a grand jury that the defendant must have been denying that he lived at the address listed! they might as well have sought an indictment claiming that he was denying his name as well..unreal. So the defendant, out on bail, was rearrested at night during a power outage, with his disabled kids at home, selectively, and charged with perjury for this spurious charge. Pure retribution, totally improper and morally beyond any justification. Afetr sitting in jail for two days, the defendant finally reached his attorney, who went to the head DA and advised him of the outrage. The DA ordered the local DA off all cases faced by the defendant and ordered the defendant realeased on recognizance. Hiowever, just to show how morally bankrupt DA’s are in general, the new DA on the case insisted that the defendant sign a statement admitting that he lived at his address! The DA said that should the defendant fail to do so, he would seek more indictments for perjury based on the fact that several copies of the affidavits had been signed..threatening to commit more abuses of a grand jury just to try and sustain the illusion that the defendant had in some way been at fault or had been denying his address. How do these guys look in the mirror in the morning? The detective involved was finally fired for his many abuses of the law and the defendant was finally convinced to take a 90-96 deal for one charge to end the nightmare. As long as prosecutors have immunity, we will see such abuses of the law.

    Had ONE grand juror had the brains to say ” Hey, the man’s name and address are not allegations but a statement of fact to identify who he is ” there never would have been an indictment at all. Not knowing the difference between an allegation of criminal conduct and the informational introduction of who an accused is and where he lives at the beginning of the narrative is common for the jurors, most of whom do not even have a basic comprehension of common terms and how they apply. Putty in the hands of a corrupt DA…what a shame.

  7. Why is Grand Jury Sessions private, and records are sealed from the public and the defendants involved, as well cant be supeoaned for future court proceeding, and appeals. Does this not violate the rights of individuals as within constitution. Have there been any Suspreme court recent ruling that Grand Jury action is unconstitutional, which I thing legally would be.

  8. […] North Carolina, grand juries occasionally identify cases on their own using a procedure called a presentment.) Historically, the grand jury served “a vital function in providing for a body of citizens that […]

  9. […] A defendant charged in district court with the misdemeanor crime of driving while impaired cannot ascertain from the charging document whether he is subject to sentencing at Level A1 (the most serious level) or Level 5 (the least serious). That’s because the aggravating factors that lead to elevated sentencing aren’t considered elements of the offense and thus are not required to be alleged in the charging instrument. Yet because those factors can increase the maximum punishment a defendant may receive, they must be proved beyond a reasonable doubt and, with the exception of prior convictions, be determined by a jury in superior court. And, for most charges of impaired driving prosecuted in superior court, the State must provide notice of its intent to seek aggravating factors. A case decided by the court of appeals last June, however, identifies an exception to this requirement for certain aggravating factors in driving while impaired prosecutions initiated in superior court. […]

  10. […] a presentment and then an indictment for the misdemeanor charge from the grand jury. Bob Farb wrote here about the presentment process. If the State elects this option and the grand jury returns a […]

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