Prosecutors Beware: State v. Newborn Provides a Word of Caution for Felon In Possession Indictments

The first sentence of State v. Newborn, ___ N.C. App. ___, 2021-NCCOA-426 (Aug. 17, 2021) sums up the issue:  “When the charge of possession of a firearm by a felon is brought in an indictment containing other related offenses, the indictment for that charge is rendered fatally defective and invalid, thereby depriving a trial court of jurisdiction over it.”

Even after I read it that straightforward statement, I questioned my understanding. This rule struck me as inconsistent with recent caselaw holding that the violation of statutory pleading rules for prior convictions does not deprive the trial court of jurisdiction. See State v. Brice, 370 N.C. 244 (2017). But (ipso facto) that is the rule for felon in possession indictments, which prosecutors ignore at the case’s peril.

State v. Newborn. An officer stopped Cordero Newborn while he was driving on Highway 19 in Haywood County for driving with a revoked license. The officer smelled marijuana and searched the vehicle, discovering a pistol between the center console panel and carpeting. Newborn subsequently was indicted for possession of firearm by a convicted felon in violation of G.S. 14-415.1, possession of a firearm with an altered/removed serial number in violation of G.S. 14-160.2(b), and carrying a concealed weapon in violation of G.S. 14-269(a). In a separate indictment, Newborn was charged with attaining habitual felon status as defined by G.S. 14-7.1. The jury convicted Newborn of all three offenses, and he then plead guilty to attaining habitual felon status. On appeal, Newborn argued for the first time that the trial court lacked jurisdiction over the felon-in-possession charge because it was not contained in a separate indictment as required by G.S. 14-415.1(c). See id. (requiring that the indictment “be separate from any indictment charging . . . other offenses related to or giving rise to a charge under this section”).

Court’s analysis. As already noted, the court agreed with the defendant. Its rationale? It was bound by precedent. Another panel of the court held in State v. Wilkins, 225 N.C. App. 492 (2013), that violation of the separate indictment requirement in G.S. 14-415.1(c) rendered the indictment there fatally defective. The Wilkins Court relied on the mandatory language of the statute as requiring this remedy. The Newborn Court rejected the State’s plea to read Wilkins in conjunction with the state supreme court’s determination in State v. Brice, 370 N.C. 244 (2017), that the statutory pleading rules for prior convictions in G.S. 15A-928(b) were mandatory but that their violation did not deprive the court of jurisdiction.

The final word? Recall that in State v. Brice, the court of appeals initially vacated the defendant’s conviction on the basis that the indictment violated the statutory rule requiring that convictions be alleged in a separate account. There, as in Newborn, the court of appeals considered itself bound by precedent. Yet in Brice, the North Carolina Supreme Court, which was not bound by court of appeals’ precedent, granted discretionary review and reversed.

The Supreme Court in Brice reasoned that G.S. 15A-928(b) requires that prior convictions be alleged in a separate count of the indictment (or in an altogether separate pleading) so that evidence about the prior conviction is not introduced before the jury in a case in which the defendant has admitted to the prior conviction. Though that statutory requirement was violated in Brice, the interest it protected was honored. Brice was separately arraigned on allegations that she had four previous convictions for misdemeanor larceny. She admitted to the prior convictions, and no evidence of them was introduced before the jury. Thus, the Brice Court concluded that the State’ s failure to comply with the separate indictment or separate count provisions in G.S. 15A-928(b) was not a jurisdictional issue that the defendant could raise on appeal without having objected below.

Should the State petition for discretionary review in Newborn, the supreme court might apply a similar analysis. The purpose of the separate indictment requirement in G.S. 14-451.1(c) arguably is to prevent evidence of a defendant’s prior felony conviction from being presented to the jury in a trial on related charges if the defendant has pled guilty to being a felon in possession. In Newborn, the defendant did not plead guilty to the alleged violation of G.S. 14-451.1; thus, evidence of his prior conviction was properly presented to the jury. There is, after all, no requirement that the defendant receive a separate trial on felon in possession charges. And, like the defendant in Brice, Newborn did not object at trial to the violation of G.S. 14-415.1(c)’s pleading requirements.

For now, though, that is mere speculation worth the price you paid to read it. The court of appeals’ opinion in Newborn is controlling precedent (or will be once the mandate issues). Prosecutors seeking to charge possession of a firearm by a convicted felon should follow the directive in G.S. 14-451.1(c), which requires that an indictment charging this offense be separate from an indictment charging related offenses.