Earlier this month, the state supreme court rejected a defendant’s challenge to his conviction for possession of a firearm by a felon pursuant to an indictment that failed to comport with a statutory pleading requirement. That case, State v. Newborn, 330PA21, ___ N.C. ___ (June 16, 2023), is the latest in a decade of rulings determining that technical pleading defects do not deprive the trial court of jurisdiction. This post will review Newborn and consider its place among jurisprudence departing from the traditional view that a defective pleading fails to vest jurisdiction.
State v. Newborn. Cordero Newborn was indicted in a single indictment for three crimes: (1) possession of a firearm by a felon, (2) possession of a firearm with an altered or removed serial number, and (3) carrying a concealed weapon. The charges arose from a traffic stop in Haywood County. Newborn was pulled over for driving with a revoked license. The officer who stopped Newborn smelled marijuana, which Newborn admitted to recently smoking. Based on the smell and Newborn’s admission, officers searched his vehicle, discovering a pistol between the center console and driver’s seat.
Court of Appeals opinion. Newborn was convicted of all three charges at trial. 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”). The Court of Appeals agreed, relying on its previous decision in State v. Wilkins, 225 N.C. App. 492 (2013), and vacated Newborn’s conviction. 279 N.C. App. 42, reversed, ___ N.C. ___ (2023) (discussed here).
Supreme Court opinion. The North Carolina Supreme Court reversed and instructed the Court of Appeals to reinstate the trial court’s judgment. The Supreme Court reasoned that the separate indictment requirement in G.S. 14-415.1(c) is not jurisdictional; thus the failure to comply with that requirement does not render an indictment fatally defective.
In reaching that conclusion, the Court relied upon its determination in State v. Brice, 370 N.C. 244 (2017) (discussed here), that the State’s failure to allege prior convictions in a separate indictment or separate count as required by G.S. 15A-928(b) did not deprive the trial court of jurisdiction. The Newborn Court interpreted the holding in Brice to extend beyond the particular pleading provision at issue there, stating that “[u]nder Brice, indictments that fail to comply with mandatory separate indictment statutes are not fatally defective and thus do not deprive the trial court of jurisdiction.” (Slip op. at 8).
The Newborn Court further noted that the purpose of an indictment is two-fold: (1) to provide a defendant with sufficient notice of the crimes with which he is charged such that he is able to prepare his defense and (2) to protect the defendant from double jeopardy. (Slip op. at 5, 8). An indictment satisfies those purposes when it alleges facts supporting the essential elements of the offense to be charged. (Slip op. at 5 (citing G.S. 15A-924(a)(5)’s requirement that an indictment “assert[] facts supporting every element of a criminal offense . . .. with sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation”)). The Court determined that the indictment charging Newborn met this standard and that to quash the indictment for failing to separately charge felon-in-possession would impermissibly elevate form over substance.
The dissent. Justice Morgan dissented in an opinion joined by Justice Earls. Justice Morgan distinguished Brice on the grounds that the Brice Court found that the violation of a provision of the Criminal Procedure Act – G.S. 15A-928 – did not render the indictment fatally defective. Newborn, was different, the dissent reasoned, as it required the Court to consider the State’s failure to comply with the very statute defining the underlying criminal offense and directing how it is to be charged.
What is the significance of Newborn? The obvious significance of Newborn is that felon-in-possession convictions obtained pursuant to multi-count indictments are not subject to jurisdictional challenge for failure to comply with the separate indictment requirement in G.S. 14-415.1(c). That said, the statutory requirement for a separate indictment remains in effect, and a defendant charged with possession of a firearm by a felon may object before the trial court to being tried for that offense pursuant to a multi-count indictment. Cf. G.S. 15A-924(e) (noting that upon motion of the defendant under G.S. 15A-952(b), the court must dismiss the charges in a pleading that fails to charge the defendant with a crime “in the manner required by subsection (a),” unless amendment is allowed). Thus, prosecutors should charge felon-in-possession separately to avoid having to amend an indictment or seek a new one.
More broadly, Newborn is the latest in a series of opinions placing the substance of a pleading over its form. I have already mentioned State v. Brice, which, like Newborn, required the Court to ascertain the import of a pleading that failed to separate a charge or allegation revealing the defendant’s criminal history. But the North Carolina Supreme Court’s recent rejection of jurisdictional challenges has encompassed other types of arguably-technical pleading defects. Thus, the Court has held that
- the failure to allege that a church is an entity capable of owning property did not render a larceny indictment fatally defective, see State v. Campbell, 368 N.C. 83 (2015),
- the failure to allege the full or proper legal name of the victim did not render a larceny indictment fatally defective, see State v. Brawley, 370 N.C. 626 (2018) (per curiam); State v. Spivey, 368 N.C. 739 (2016),
- the failure to specify the amount of money obtained did not render an indictment alleging obtaining property by false pretenses fatally defective, see State v. Mostafavi, 370 N.C. 681 (2018), and
- the failure to state an element of the offense did not render a citation fatally defective, see State v. Jones, 371 N.C. 548 (2018).
A hard line? The Court has, however, drawn a line at an indictment’s omission of an essential element. In State v. Rankin, 371 N.C. 885 (2018) (discussed here), the Court reiterated that this sort of omission deprives the court of jurisdiction. See id. at 894-95 (holding fatally defective an indictment for felony littering that failed to allege that the defendant was an unauthorized person who deposited refuse on land not designated by the State for such use). Chief Justice Martin (joined by then-Associate Justice Newby) dissented from the majority’s opinion in Rankin, writing that the “time has come to reconsider this antiquated approach to flawed indictments in light of the extensive statutory, constitutional, and conceptual changes in criminal procedure during the twentieth century.” 371 N.C. at 898 (Martin, C.J., dissenting).
State v. Singleton, 285 N.C. App. 630 (2022), discretionary review allowed, ___ N.C. ___ (March 1, 2023) is sure to test that line. I wrote a few weeks ago about Singleton, in which the Court of Appeals held that that the superior court lacked jurisdiction to try the defendant for rape because the indictment failed to allege that he knew or reasonably should have known the victim was physically helpless. The North Carolina Supreme Court has granted discretionary review, and could apply, overrule, or distinguish Rankin.
Stay tuned. We will be right back after the next set of important messages from our appellate courts.