Indictment issues are the bane of the prosecutor’s existence. The rules about how an offense must be alleged in the indictment are highly technical. And because the rules are neither intuitive nor entirely consistent across offenses, they are hard to keep straight. Not surprisingly indictment issues account for a lot of black ink in the appellate reporters. Just how much? In my Criminal Case Compendium, which catalogues all types of criminal cases decided since 2008, there are a full 26 pages of case annotations on indictment issue cases!
However, two recent cases, both decided on July 7, 2015, make me wonder whether the Court of Appeals might be loosening up on indictment issues. The first case, State v. James, was a failure to register case. Specifically, the defendant was charged with failing to notify of a change of address. The indictment alleged that the defendant failed to notify the sheriff of a change of address “within three (3) days of the address change.” The relevant statute, however, requires that the notice be made within three business days. Relying on this statutory language, the defendant argued that omission of the word “business” rendered the indictment fatally defective. He had a decent argument; the court of appeals had previously held, in an unpublished opinion, that that the word “business” must be included in an indictment charging a violation of the failure to register statute. While the court agreed “that the better practice would have been for the indictment to have alleged … that Defendant failed to report his change of address within “three business days,” it declined to follow the prior unpublished opinion. Instead, the court went on to find that the indictment “gave Defendant sufficient notice of the charge against him and, therefore, was not fatally defective.” Among other things, the court noted that the defendant didn’t contend that he was unaware of the offense for which he was being charged, was misled in any way, was precluded from preparing a defense at trial, or may be subjected to double jeopardy for the same offense in the future.
The second case, State v. Sullivan, was a drug case. Although the court found that some of the indictments were defective for failing to allege drug names listed in the schedules of controlled substances (the case law was pretty clear on this) [Editor’s note: This is the “trade name” aspect of the case, about which I blogged here], it rejected the defendant’s claim of fatal variance with respect to the name of the recipient of the drugs in a sale of controlled substances indictment. It’s well established that an indictment for sale of a controlled substance must allege the name of the person to whom the defendant sold the drugs or that the recipient’s name is unknown. In Sullivan the relevant indictment alleged that the defendant sold the controlled substance to “A. Simpson.” At trial however Mr. Simpson testified that his name was “Cedrick Simpson” not “A. Simpson.” Noting this disparity, the court rejected defendant’s argument that this constituted a fatal variance, stating:
[N]either during trial nor on appeal did defendant argue that he was confused as to Mr. Simpson’s identity or prejudiced by the fact that the indictment identified “A. Simpson” as the purchaser instead of “Cedric Simpson” or “C. Simpson.” In fact, defendant testified that he had seen Cedric Simpson daily for fifteen years at the gym. The evidence suggests that defendant had no question as to Mr. Simpson’s identity. The mere fact that the indictment named “A. Simpson” as the purchaser of the controlled substances is insufficient to require that defendant’s convictions be vacated when there is no evidence of prejudice, fraud, or misrepresentation.
Thus, in both cases the court seems to be focusing not on technical rules but on the broader purposes of the indictment: (1) identify the offense charged; (2) protect the accused from being twice put in jeopardy for the same offense; (3) enable the accused to prepare for trial; and (4) enable the court, on conviction or plea of nolo contendere or guilty, to pronounce sentence according to the rights of the case. See generally Jessica Smith, The Criminal Indictment: Fatal Defect, Fatal Variance, and Amendment, Admin. of J. Bull No. 2008/03 (discussing these purposes and many of the detailed requirements for indictments). In both of these cases the court held that because the indictment issue didn’t frustrate those purposes, a new trial wasn’t required. If that approach holds prosecutors will have reason to celebrate. But they shouldn’t pop the champagne yet: Since there was a dissent in James the N.C. Supreme Court will have the last word on the issue presented in that case.