“No True Bill” on a Superseding Indictment… Now What?

The defendant has been indicted for a felony, and is in custody awaiting trial. The prosecutor decides to submit a superseding indictment to the grand jury, alleging the same offense but expanding the date range and adding a second victim. Unfortunately for the state, the grand jury returns “no true bill” on the superseding indictment.

What impact does the grand jury’s verdict have on the underlying case? Can the state still proceed on the original indictment? Should the defendant be released? May the state submit another superseding indictment and try again? If so, is there a limit to how many times?

These questions crossed my desk recently, and I discovered that the case law interpreting the key North Carolina statutes, G.S. 15A-629 and 646, is pretty thin on these issues. I also learned that other jurisdictions have reached dramatically different answers to the same questions. This post looks at the reasoning behind the competing views, and considers which approach is a better fit under our statutes and cases.

One way of distinguishing between the different approaches is by asking whether the grand jury’s verdict should be treated as a response to the overall case or only to that particular pleading?

The “One Case” Model

Under this view (most notably adopted by New York state), the fact that the grand jury rejected the superseding indictment is interpreted as a rejection of the state’s case as a whole. Viewed in that light, it makes sense the state cannot simply ignore the grand jury’s verdict and proceed on an earlier indictment for the same charge, nor may the state resubmit the superseding indictment and try again. Therefore, if the grand jury returns “no true bill” on a superseding indictment for a previously indicted offense, the case is over and the charges must be dismissed. See, e.g., People v. Greco, 230 A.D.2d 23 (N.Y. Sup. Ct. App. Div. 1997) (“If the Grand Jury does not return a true bill after re-presentment of the charges that are contained in the original indictment, the Grand Jury’s return of ‘no true bill’ creates a legal impediment to conviction of defendant requiring dismissal of the indictment.”); People v. Jones, 206 A.D.2d 82 (N.Y. Sup. Ct. App. Div. 1994) (“…to permit the District Attorney to proceed upon the first indictment after all the charges had been dismissed by a second Grand Jury is tantamount to allowing the resubmission of charges without any legal basis. This would be in direct contravention of the intent of CPL 190.75 (3) and compromise the authority and integrity of the second Grand Jury.”).

The “Dual Document” Model

The alternative view is premised on treating the superseding indictment as a separate and distinct criminal charge, which means that the original indictment continues to exist as a parallel charge unless and until the state dismisses it. Obviously double jeopardy would bar the state from actually prosecuting the defendant under both indictments, but the state is free to choose either pleading for use at trial. See, e.g., United States v. Walker, 363 F.3d 711 (8th Cir. 2004) (holding that “the superseding indictment and the original indictment can co-exist” and finding no error where “the district court dismissed the superseding indictment and the case proceeded under the original indictment”); United States v. Bowen, 946 F.2d 734 (10th Cir. 1991) (finding “no authority which supports … that a superseding indictment zaps an earlier indictment to the end that the earlier indictment somehow vanishes into thin air”); State v. Harris, 33 S.W.3d 767 (Tenn. 2000) (“the State may obtain a superseding indictment at any time prior to trial without dismissing the pending indictment and may then select the indictment under which to proceed at trial”).

If the two indictments exist independently of each other, it follows that the grand jury’s rejection of a proposed superseding indictment means just that and no more: only the second indictment has been rejected. Therefore, unless there is a statute that directly ties the rejection of the superseding indictment to the validity of the original indictment, there is no reason why the state could not continue to prosecute the defendant under the prior indictment. See generally Ceasar v. Campbell, 236 Ariz. 142 (2014) (noting Jones, supra, for the holding that “a second grand jury’s vote of ‘no true bill’ to a re-presentment of charges contained in an earlier indictment nullified the original indictment,” but concluding it was not applicable in this jurisdiction since it “relied on an interpretation of a unique New York statutory scheme governing superseding indictments that is not present here”).

Which Model Does North Carolina Follow?

Some aspects of both, but not quite either one.

North Carolina can’t be considered a true “dual document” jurisdiction, because we have a statute which dictates that once the state obtains a superseding indictment and arraigns the defendant on it, the “first instrument charging the offense must be dismissed by the superior court judge.” G.S. 15A-646 (emphasis added).

But on the other hand, the statutory dismissal provision is not invoked automatically. Mandatory dismissal of the prior indictment is only triggered “upon the defendant’s arraignment upon the second indictment or information.” G.S. 15A-646. So if there is never an arraignment on the superseding indictment, both indictments remain valid and the state is free to proceed on the original indictment instead. See State v. Fox, 216 N.C. App. 144 (2011) (where defendant was indicted, but never arraigned, on a superseding indictment alleging a different offense date range, there was no error when defendant was tried and convicted on the original indictment); see also State v. Carson, 320 N.C. 328 (1987) (statutory requirement that original indictment must be dismissed upon arraignment for superseding indictment is only a “ministerial act” intended to avoid “inadvertently” proceeding on former pleading, so “the failure of the trial court to do so does not render the superseding indictment void or defective”); accord, State v. Twitty, 212 N.C. App. 100 (2011).

As for the “one case” view, there is historical authority in North Carolina for the argument that “when a grand jury passes upon a bill of indictment and returns it to court endorsed ‘not a true bill,’ that is the end of the case so far as the grand jury of that particular term is concerned,” so the state was prohibited from resubmitting the charge to the same grand jury. State v. Brown, 81 N.C. 568 (1879). That seems to echo the logic behind the New York cases like Greco and Jones.

But on the other hand, Brown and other pre-15A cases were generally in agreement that the state could resubmit a new indictment – even after the grand jury voted “no true bill” on that charge – as long as the new indictment was submitted to a different grand jury. See, e.g., State v. Ledford, 203 N.C. 724 (1932) (finding it was error for prosecutor to present the same indictment to the same grand jury a third time after twice receiving returns of “no true bill,” but holding that the prosecutor could “send another bill before a different grand jury, if so advised”).

Of course, since all of these cases were decided many decades before G.S. 15A-646 was adopted in 1973, their precedential value in support of any legal theory is hard to assess. But see Carson, 320 N.C. at 333 (citing a relevant case from 1882 and concluding that the adoption of G.S. 15A-646 was not intended to “modify such time honored practices in any way”).

Just Answer the Questions Already…

1) Can the state proceed on the original indictment?

Maybe? G.S. 15A-646 only requires dismissal of the first indictment if the defendant is actually arraigned on a superseding indictment for the same offense, and obviously the defendant cannot be arraigned on the new indictment if the grand jury decided not to return it. So, taking guidance from Fox and Carson, one might be able to argue that the state should be allowed to continue prosecuting the defendant under the original pleading, on the theory that North Carolina’s statutes are not as explicit in barring further prosecution as New York’s CPL 190.75 (3). Sharp-eyed readers will notice that the Official Commentary to G.S. 15A-646 mentions that “the provisions of this section are based on a section in the New York Criminal Procedure Law.” That reference did get my attention, but the remainder of the commentary only addresses the issue of determining proper venue in cases involving a superseding indictment.

On the other hand, the Clerk of Court’s Rule of Recordkeeping 9.2, Comment B, states that when the grand jury returns no true bill on a regular indictment, it should be entered as a disposition in the case and the file should be closed. Presumably the same would hold true for a superseding indictment as well, based on the language in G.S. 15A-646 which says that any offense charged in a prior instrument is superseded when it is charged by a second instrument, and G.S. 15A-1381(4) and 15A-629(a) which say that a finding of no true bill disposes of that charge. Therefore, if the grand jury finds no true bill on a superseding indictment, there is simply no longer an active charge left pending for that offense.

2) Can the state resubmit a new superseding indictment?

Yes. G.S. 15A-646 states that “at any time before entry of a plea of guilty to an indictment or information, or commencement of a trial thereo,” the state may file a superseding indictment “charging the defendant with an offense charged or attempted to be charged in the first instrument.” G.S. 15A-646. The statute does not set a limit on the number of times that the state may seek a superseding indictment, and historical precedent favored allowing the state to resubmit a subsequent superseding indictment even if the same charge had previously been rejected by the grand jury, so this practice should also be allowed.

Additional statutory support comes indirectly from G.S. 15A-629 (discussed below). Under the original version of this statute, the prosecutor would have needed permission from a superior court judge before he or she could resubmit an indictment after it had been rejected by the grand jury. But “the General Assembly removed a provision which restricted the solicitor’s discretionary power to submit a new bill of indictment upon the same charge to the same or a new grand jury following the return of a bill as not a true bill.” G.S. 15A-629, Official Commentary.

In light of the historical cases cited above, a cautious prosecutor might nevertheless choose to wait and resubmit the matter to a subsequent grand jury. That’s fine, but in addition to the implied authority granted by the revision to G.S. 15A-629, there is also pre-15A authority in favor of allowing resubmission of an indictment to the same grand jury, if that is the prosecutor’s preference. See, e.g., State v. Mercer, 249 N.C. 371 (1959) (no error where defendant was indicted by the same grand jury that had earlier found no true bill on the same offense).

3) Is there any limit to how many times?

Apparently not. The court in Harris noted the concern that “if a second bill can be sent in such a case, so may a third and fourth under like circumstances; and thus the accused might be greatly harassed and oppressed,” but concluded that “it is not to be presumed that the prosecuting officer would needlessly multiply bills for the same offence, much less that he would so prostitute his office to gratify his own malice or that of others.” Id., 91 N.C. at 657. The presumption that the prosecutor will act reasonably and with restraint, along with the grand jury’s ability to keep saying “no” (or ask the court to intervene, if necessary) provides a “wholesome check” on the risk of abuse. Id. See also State v. Mercer, 249 N.C. 371 (1959) (“‘The grand jury is not a trial court, but an investigatory body, and no question of double jeopardy is presented by its repeated investigation under the bills presented to it. […] It is competent to send to the grand jury as many bills of indictment as may be necessary to get before them necessary witnesses and evidence from which they may decide the propriety of submitting the accused to trial.”).

4) Must the defendant be released?

This is one of the most interesting and significant questions under the statutes. G.S. 15A-629 states that if the grand jury returns no true bill on a proposed indictment, the presiding judge must examine the court file to determine if the defendant is in custody or subject to any pretrial conditions, and if so, “immediately” order that the defendant be released. The only exception listed in the statute is if the grand jury has requested that the prosecutor resubmit a lesser or related offense for the grand jury to consider, in which case the judge may delay releasing the defendant for a “reasonable period,” but not exceeding the end of the court session. See G.S. 15A-629(b).

Defense attorneys would likely argue that the statute is clear, it says what it says, and the state took the risk that this might happen by going back to the grand jury with a superseding indictment. Prosecutors would likely argue that: (a) this statute is only addressing original indictments, not superseding indictments; and (b) if the defendant would remain in custody based on the grand jury’s request that a new indictment be resubmitted, arguably that reasoning applies equally as well in a case where another (earlier) indictment has already been both submitted and returned as a true bill, since both situations indicate a reasonable likelihood that the defendant will soon be indicted for some offense. That makes intuitive sense to me, but it’s not covered by the statute. Alternatively, of course, the defendant might remain in custody on other pending charges which were not included in the superseding indictment.

5) This never happens in real life, right?

I know, I know — no need to go looking for the “ham sandwich” quote to post in the comments. I’ve already found it for you right here.

I admit this is an obscure point of law with a shallow pool of case law, but yes, it does happen from from time to time, and that’s precisely why I found it so fascinating. I hope you also found it worth the read.