A non-lawyer might be forgiven for being somewhat confused by the rules governing indictments. The basics are summarized easily enough: a trial court’s jurisdiction depends on a facially valid indictment; an indictment is facially valid so long as it sufficiently alleges all the essential elements of the offense; and the essential elements consist of what the State must prove in order to obtain a conviction. But these basics are so pocked with exceptions, so piled with caveats, that few cases are resolved by reference to them alone. Our appellate courts have decided a few cases in the last several months which illustrate this complexity. This post attempts to provide a brief recurrence to fundamental principles applicable to indictments and to throw a lifeline to prosecutors who discover a potential defect during a trial. My colleagues have blogged pretty frequently about indictment issues, most recently Shea Denning addressing a recent opinion here.
A valid indictment is essential to jurisdiction?
Our appellate courts have said again and again that a valid indictment is essential to the trial court’s jurisdiction. E.g., State v. Murrell, 370 N.C. 187, 193, 804 S.E.2d 504, 508 (2017); State v. Everrette, 256 N.C. App. 244, 248, 807 S.E.2d 168, 172 (2017). That is a true statement, with a few important exceptions. A criminal defendant has a state constitutional right to indictment – except in misdemeanor cases initiated in the district court division – but anyone represented by counsel may waive indictment in noncapital cases. N.C. Const. Art. I, § 22. Accordingly, it may be more accurate to say that a valid indictment is essential to the superior court’s jurisdiction, but even that requires qualification. When a defendant appeals from a misdemeanor conviction in the district court, the superior court obtains jurisdiction to try the misdemeanor upon the original charging document. See N.C.G.S. § 7A-271(a)(5) (2021). In that case, the superior court’s jurisdiction is derivative, and no indictment is necessary. See State v. Felmet, 302 N.C. 173, 175, 273 S.E.2d 708, 710 (1981); State v. Chase, 117 N.C. App. 686, 690, 453 S.E.2d 195, 198 (1995). So is a valid indictment essential to the superior court’s jurisdiction to try a defendant for a felony? Not quite.
A defendant charged with a felony is certainly entitled to an indictment, but the right may be waived so long as the case is noncapital and the defendant is represented by counsel. See N.C.G.S. § 15A-642(b). The waiver must be: (1) in writing, (2) signed by the defendant and his attorney, and (3) attached to or executed upon the bill of information. Id.; cf. State v. Nixon, 263 N.C. App. 676, 680, 823 S.E.2d 689, 692 (2019) (signed bill of information was insufficient without written waiver of indictment). If indictment is waived, the pleading must be a bill of information. N.C.G.S. § 15A-923(a). The charges stated in a bill of information are generally subject to the same pleading requirements governing indictments (see below). N.C.G.S. § 15A-644(b). Still, assuming indictment is properly waived, a defendant may be tried for a felony in superior court upon a bill of information – even absent a valid indictment.
An indictment must allege all the elements?
It is well-established that, to be valid, an indictment must allege all the elements of the offense. State v. Mostafavi, 370 N.C. 681, 685, 811 S.E.2d 138, 141 (2018). This common law requirement was codified in Section 15A-924. State v. Oldroyd, 380 N.C. 613, 617, 869 S.E.2d 193, 197 (2022). (Other jurisdictions have rejected the rule that an indictment’s failure to allege all essential elements of an offense constitutes a jurisdictional defect; North Carolina adheres to the minority view. See State v. Singleton, __ N.C. App. __, __, 878 S.E.2d 653, 655, temp. stay allowed, __ N.C. __, 878 S.E.2d 286 (2022)).
Section 15A-924 provides that a criminal pleading must contain a “plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element.” N.C.G.S. § 15A-924(a)(5). Hence, our Court of Appeals recently vacated a conviction for possession of a dangerous weapon at a demonstration under Section 14-277.2 when the charging document failed to allege the conduct took place in a statutorily specified location (at a hospital or on public land), an essential element of the offense. See State v. Reavis, No. COA21-561, 2022 WL 17986740 (N.C. Ct. App. Dec. 29, 2022). Similarly, it found an indictment for second-degree forcible rape defective that failed to allege the element that the defendant knew or reasonable should have known of the victim’s helplessness. See Singleton, __ N.C. App. at __, 878 S.E.2d at 656.
The legislature may, however, dispense with the requirement for alleging all the elements by prescribing a short form for the indictment. State v. Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983). Our Supreme Court has consistently upheld the use of a short form indictment to charge first-degree murder. See State v. Allen, 378 N.C. 286, 307, 861 S.E.2d 273, 288 (2021); cf. N.C.G.S. § 15-144. Even absent explicit statutory authorization, our Supreme Court has recognized a short form for attempted first-degree murder, which consists of adding the word “attempt” to the formula prescribed by statute. See State v. Jones, 359 N.C. 832, 838, 616 S.E.2d 496, 499 (2005). Strict adherence to the formula is apparently not required; an attempted murder indictment is sufficient which alleges the defendant unlawfully, willfully, and feloniously did attempt to kill and slay (rather than kill and murder) the victim with malice aforethought. State v. Tart, 372 N.C. 73, 79, 824 S.E.2d 837, 841 (2019).
Whether a murder indictment must allege malice aforethought is a difficult question. At one time, our Supreme Court held malice was a necessary allegation in a murder indictment. See State v. Arnold, 107 N.C. 861, 11 S.E. 990, 990 (1890); cf. State v. Bullock, 154 N.C. App. 234, 244, 574 S.E.2d 17, 24 (2002), disc. review denied, 357 N.C. 64, 579 S.E.2d 396, cert. denied, 540 U.S. 928, 157 L.Ed.2d 231 (2003). It has since recognized, however, that not every murder prosecution requires a showing of malice. See State v. Smith, 351 N.C. 251, 267, 524 S.E.2d 28, 40 (poisoning), cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000); State v. Crawford, 329 N.C. 466, 481, 406 S.E.2d 579, 588 (1991) (torture); State v. Wilson, 313 N.C. 516, 537, 330 S.E.2d 450, 465 (1985) (felony murder). Accordingly, an indictment for felony murder need not allege malice. See State v. Moore, 284 N.C. 485, 495, 202 S.E.2d 169, 175 (1974).
In State v. Davis, No. COA22-222, 2023 WL 194801 (N.C. Ct. App. Jan. 17, 2023), our Court of Appeals recently upheld indictments for attempted murder that failed to allege malice aforethought. Id. at *4. Our Court of Appeals did not say malice was not an element; rather, it said an indictment need only allege the ultimate facts constituting each element of the offense. Id. at * 3 (citing State v. Rambert, 341 N.C. 173, 176, 459 S.E.2d 510, 512 (1995)). The indictments at issue alleged that the defendant unlawfully, willfully, and feloniously did attempt to kill and murder the victim by setting the residence occupied by the victim on fire. Id. at *4. The Court of Appeals said the indictments included “the specific facts from which malice is shown, by ‘unlawfully, willfully, and feloniously . . . setting the residence occupied by the victim(s) on fire.’” Id. This, it concluded, was sufficient to allege the ultimate facts. Id.; but see State v. Schalow, 251 N.C. App. 334, 342, 795 S.E.2d 567, 573 (2016) (attempted murder indictment was defective that failed to allege malice), disc. review improvidently allowed, 370 N.C. 525, 809 S.E.2d 579 (2018). [The result in Davis is questionable. Ellipsis aside, the attempted murder indictments did not explicitly allege the defendant intentionally set fire to the victims’ residences, from which malice might be inferred.]
The elements consist of what the State must prove at trial?
Complicating the matter is that some crimes allow for a conviction upon variable elements, what the courts have called theories of the offense. First-degree murder may be proven by showing, among other things, lying in wait, or any other kind of willful, deliberate, and premeditated killing, or felony murder. N.C.G.S. § 14-17(a). But a short form murder indictment need not allege any theory. See State v. Braxton, 352 N.C. 158, 175, 531 S.E.2d 428, 438 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d. 797 (2001). First-degree kidnapping may be proven by showing confinement, restraint, or removal for six different statutorily defined purposes. N.C.G.S. § 14-39(a). A kidnapping indictment must allege at least one of these prohibited purposes, and the State is bound to prove at least one of the prohibited purposes alleged. State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986).
In State v. Elder, __ N.C. __, 881 S.E.2d 227 (2022), our Supreme Court held the trial court erred by denying the defendant’s motion to dismiss a charge of kidnapping when the evidence did not conform to the theory of kidnapping alleged in the indictment (i.e., for the purpose of facilitating a felony). Id. at __, 881 S.E.2d at 245-46. Our Supreme Court acknowledged that the evidence supported a different theory of kidnapping (i.e., for the purpose of facilitating flight), which the State might have alleged in the pleading. Id. at __, 881 S.E.2d at 240. But “[a]s a result of the manner in which the kidnapping indictment was written, the State was obligated to prove” that the defendant moved the victim for the purpose of facilitating a felony, and where proof of that theory was lacking, the State’s evidence was insufficient. Id.
By contrast, in State v. McVay, No. COA 22-241, 2022 WL 17986748 (N.C. Ct. App. Dec. 29, 2022), our Court of Appeals held the trial court did not err in denying the defendant’s motion to dismiss a charge of speeding to elude arrest (which requires an officer be engaged in the lawful performance of duties) when the evidence showed the officer was performing a different duty from that alleged in the indictment. Id. at *5. The indictment alleged the officer was arresting the suspect for: (1) an outstanding warrant and (2) discharging a weapon into an occupied vehicle. Id. at *1. The trial court found there was insufficient evidence of an arrest on the warrant. Id. On appeal, the defendant argued the evidence was also insufficient to show a lawful arrest for discharging a weapon. Id. at *2. Our Court of Appeals posited that the specific duty the officer was performing is not an essential element of speeding to elude arrest. Id. at *4. It noted that the evidence showed the officer had probable cause to arrest based on the defendant’s reckless driving. Id. Hence, the legal duty alleged was mere surplusage, the evidence showed the officer was performing legal duties (albeit not alleged), and the trial court did not err by denying the motion to dismiss. Id. at *5.
What should I do if I am concerned about a potentially defective indictment?
There are a few methods to cure a potential error in drafting an indictment. Of course, the first step is to scrutinize any indictment or bill of information carefully before proceeding. Form books are available, including this publication from the School of Government: Arrest Warrant and Indictment Forms (2022).
My colleague Jeff Welty has summarized the options as follows: (1) do nothing, (2) move to amend the pleading, (3) supersede with a new pleading, or (4) dismiss the case and recharge. See Jeffrey B. Welty, Christopher Tyner, & Johnathan Holbrook, Arrest Warrant and Indictment Forms, xxi (2022). As he notes, minor problems that do not affect the validity of the indictment may safely be ignored. Such issues include misspelling the name of the defendant or the victim, errors regarding the date of the offense (when the date is not material), and errors in the citation to the statute alleged to have been violated. See N.C.G.S. § 15A‑924(a)(4) (error in date of offense); id. at (a)(6) (error in citation to applicable law). For more proactive prosecutors, minor problems such as these may probably be addressed by amending the indictment.
Minor problems aside, amending an indictment is possible but fraught with peril. Section 15A-923 provides that a bill of indictment may not be amended. N.C.G.S. § 15A-923(e). Our appellate courts have construed this to mean an indictment may not be amended in a way that would substantially alter the charge. See State v. Farrar, 361 N.C. 675, 677, 651 S.E.2d 865, 866 (2007); State v. Barber, 281 N.C. App. 99, 106, 868 S.E.2d 601, 606, appeal dismissed, disc. review denied, __ N.C. __, 871 S.E.2d 518 (2022). The cases are numerous and difficult to reconcile. In any event, a fatally defective indictment – that is, one missing an essential element when essential elements must be alleged (i.e., no short form) – may not be cured by amendment. E.g., State v. Williams, 242 N.C. App. 361, 365, 774 S.E.2d 880, 883 (2015).
Serious problems with an indictment may be remedied only by obtaining a superseding indictment or – what amounts to the same thing – dismissing charges and obtaining a new indictment (or information). Felony charges may be dismissed at any time. N.C.G.S. § 15A-931(a). The filing of a new indictment or information supersedes any prior one with respect to an offense charged or attempted to be charged therein. N.C.G.S. § 15A-646; see also State v. Stallings, 271 N.C. App. 148, 156, 843 S.E.2d 310, 315 (2020) (superseding indictment need not be filed before trial). Whether the defendant may be retried upon a new indictment depends on whether retrial would constitute double jeopardy. That issue is beyond the scope of the present post, but it militates against mid-trial dismissal if there is any doubt of an indictment’s validity.