A few short years ago, a criminal law practitioner could be forgiven for not knowing what a presentment was—much less how it might properly be utilized. Presentments rarely preceded indictments before 2016. But after the court of appeals held in State v. Turner, ___ N.C. App. ___, 793 S.E.2d 287, 290 (2016), reversed, ___ N.C. ___, 817 S.E.2d 173 (2018), that citations and magistrate’s orders did not toll the two-year statute of limitations for misdemeanors, presentments in impaired driving cases proliferated. By obtaining a presentment from a grand jury, followed by an indictment, the State could ensure the statute of limitations was tolled. That, in turn, eliminated any requirement that the charges be resolved by trial or plea within two years of the date of the alleged offense. Though Turner was reversed by the state supreme court in 2018, the rising use of presentments following the court of appeals’ decision led to increased scrutiny of the procedure.
Some questioned whether a so-called presentment drafted by a district attorney and presented to a grand jury simultaneously with an indictment really was a presentment within the meaning of the state constitution and the criminal procedure act. Last December, the court of appeals in State v. Baker, ___ N.C. App. ___ (2018), considered this argument and weighed in on the proper use of presentments.
The facts. Samantha Baker was arrested in Pitt County for impaired driving on December 21, 2015 and was subsequently charged by a citation and magistrate’s order for that offense. A year later, following the court of appeals’ decision in Turner, an assistant district attorney prepared a substantially identical presentment and indictment in Baker’s case. The two documents were presented to the grand jury at its February 27, 2017 session by the officer who testified about the circumstances leading to Baker’s arrest. That day, the grand jury issued both the presentment determining that Baker drove while impaired and a true bill of indictment charging that offense.
Motion to dismiss. Baker moved in superior court to dismiss the charges on the basis that the procedure by which the State obtained the presentment and indictment violated state statutes and the state constitution. The superior court agreed and dismissed the charges. The State appealed.
The holding. The court of appeals held that the simultaneously-obtained presentment and indictment were invalid and failed to confer jurisdiction on the superior court. The appellate court determined, however, that this error did not require dismissal of the charges. Instead, the court held that the proper remedy was to remand the case to district court for proceedings on the original charging documents.
Background. Jeff Welty wrote here about the history of presentments, which originally were devices by which a grand jury could charge a crime it identified independent of a prosecutor. Over time, grand juries lost the right to charge crimes by presentment but retained the right to identify criminal offenses and instruct prosecutors via presentment to investigate. If the ensuing investigation supported the issuance of criminal charges, the district attorney could then submit to the grand jury a bill of indictment.
Today, grand juries seldom, if ever, initiate presentments without a request from the prosecutor. Indeed, G.S. 15A-628(a)(4) acknowledges the role of the prosecutor in seeking a presentment by authorizing a grand jury to issue a presentment following an investigation into criminal conduct initiated “upon the request of . . . the prosecutor.”
Baker Court’s reasoning. Though the court of appeals recognized that presentments no longer have to be initiated on the grand jury’s own motion but instead may properly be sought by a prosecutor, Baker held that the state statute defining presentments requires that a district attorney investigate a presentment after its return before seeking an indictment. The court pointed to the “plain language” of G.S. 15A-641, which states that “the district attorney is obligated to investigate the factual background of every presentment returned . . . and to submit bills of indictment . . . when . . . appropriate.” G.S. 15A-641(c).
This language, Baker held, “precludes a grand jury from issuing a presentment and indictment on the same charges absent an investigation by the prosecutor following the presentment and prior to the indictment.” (Slip op. at 5). The court further characterized its interpretation of the statute as being consistent with the historical understanding of presentments and the manner in which they differed from indictments.
What must happen after the presentment is issued? Baker clearly requires that there be some delay between issuance of a presentment and the return of an indictment for the same charges. And its reliance on G.S. 15A-641 indicates that some investigation must occur during that intervening time. But because an investigation will have preceded the district attorney’s request for a presentment, it may be unclear to a prosecutor what action to take following the presentment. At a minimum, a review of the case file would be advisable. (Slip op. at 10 (noting that “‘the prosecutor’s office reviewed the case file prior to the preparation of the Presentment and Indictment.’”)). Of course, if this is all that is required, the fact of the investigation seems of little practical import.
Impact. Though the flurry of presentment filings in DWI cases likely has slowed following the reversal of the court of appeals’ decision in Turner, presentments are still used on occasion. If recent court of appeals cases provide any sort of accurate sampling, it appears that the practice of submitting the presentment and indictment on the same day may have been a regular one. (The day Baker was decided, the court of appeals found that the superior court lacked jurisdiction over impaired driving charges in six other Pitt County cases in which presentments and indictments were simultaneously issued. Same-day presentments and indictments also were issued in State v. Hobson, __ N.C. App. ___, 819 S.E.2d 397 (2018) (discussed here).) That practice must be discontinued under Baker if the State wishes to proceed on the misdemeanor charges in superior court.
Why weren’t the charges dismissed? Though the court of appeals in Baker determined that the superior court lacked subject matter jurisdiction over the charges, it reversed the portion of the trial court’s order dismissing the charges. The court instead remanded the case to superior court with instructions to transfer the case to district court where, the court held, the defendant could be prosecuted based on the initial misdemeanor citation. (The citation for impaired driving was converted to a magistrate’s order upon Baker’s arrest, but the appellate court overlooked that distinction, which was, in any event, immaterial to its holding). The court reasoned that because the superior court failed to attain jurisdiction over the defendant by virtue of the flawed indictment, jeopardy never attached, and the State never acknowledged that it had dismissed the initial charges, the district court retained jurisdiction.
Last word? There was no dissent in the court of appeals and it does not appear that the State has petitioned the state supreme court for discretionary review. Absent some change in that regard, Baker sets a bright-line rule for the timing of presentments and indictments. They can’t be issued in one fell swoop.