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Supreme Court Un-“Capps” Amendments

A few months ago, Jamie Markham summarized the North Carolina Supreme Court’s decision in State v. Capps, 374 N.C. 621 (2020), affirming the procedure used by the state to cure a defect with the name of the victim in larceny and injury to personal property charges. The higher court’s decision reversed the Court of Appeals ruling in State v. Capps, 265 N.C. App. 491 (2019), a case that Jeff Welty blogged about here.

The more recent Capps case is one that I have found myself mentioning over and over again during presentations on pleadings, amendments, and legal updates, so I thought we should close the loop on those earlier blog posts by digging a little deeper into its holding. Procedurally, Capps is a significant and helpful case for the state, but it remains to be seen how one aspect of the decision will be reconciled with existing case law.

Facts and Procedural History:

A more detailed and colorful summary of the facts of the case can be found in prior posts here and here. Briefly, the defendant got into an argument with a passenger in his vehicle while at a truck stop, cut the end off an air pump hose and used it to assault the passenger, and then fled the scene when confronted by an officer. The defendant pleaded guilty to several charges in district court, including larceny and injury to personal property charged by warrant, and appealed to superior court. Before his trial in superior court, the state moved to amend the two personal property charges by filing a statement of charges to correct the victim’s name, changing it from “Love’s Truck Stop” to “Love’s Travel Stops & Country Stores, Inc.” The defendant did not object, the trial court allowed the change, and the defendant was convicted and appealed.

Although it was written on a statement of charges, the trial transcript shows that the state presented its request as an “amendment” to the existing charge, and it was accepted as one by the trial court. But as Jeff explained in his earlier post, whether it’s characterized as an amendment or a new pleading, the state seemed to be trapped on appeal between a statutory rock and a case precedent hard place.

Option #1 – The Rock:

If the statement of charges is deemed to be a new pleading that supersedes and replaces the original charging instrument, it would be barred by G.S. 15A-922(e) because that statute says a statement of charges is only allowed after arraignment in district court if the defendant objects to the sufficiency of the pleading, which did not occur in this case.

Option #2 – The Hard Place:

If the modification is viewed instead as an amendment to the existing misdemeanor pleading under G.S. 15A-922(f) (“may be amended at any time prior to or after final judgment when the amendment does not change the nature of the offense charged”) and G.S. 15-24.1 (allowing amendment of ownership in warrant if it does not prejudice defendant), that avoids the first problem but it raises a different one.

The original warrant failed to identify the alleged victim as either a natural person or a legal entity capable of owning property, which a number of cases have held is a fatal defect and cannot be cured by amendment. See, e.g., State v. Campbell, 368 N.C. 83 (2015) (“In Thornton we held that an indictment alleging the defendant embezzled money belonging to ‘The Chuck Wagon’ was ‘fatally defective’ because it failed to allege ‘that ‘The Chuck Wagon’ is a corporation, and the words ‘The Chuck Wagon’ do not import a corporation’”); see also State v. Madry, 140 N.C. App. 600 (2000) (fatally defective warrant “cannot be cured by amendment. […] Instead of issuing an amendment, the State should have filed a statement of charges to rectify the situation”).

The Appellate Ruling:

The Court of Appeals held that interpretation #1 applied, and the state had crashed on the rocks. The new pleading did not simply “amend” the original warrant; it wholly changed the form of the charging instrument and replaced it with a new statement of charges, which was forbidden by G.S. 15A-922(e) because it happened after arraignment in district court and it was not prompted by an objection from the defense. As a result, the trial court had no valid pleading before it, and the defendant’s convictions were vacated.

The state Supreme Court disagreed, reversing the Court of Appeals and reinstating the convictions.

There is No Statutory Rock…

First, the Supreme Court explained that despite being written out on a statement of charges form, the change being requested by the state was an “amendment in substance” and properly treated as one by the trial court: “We hold that when a prosecutor’s action is in substance an amendment to a criminal pleading, no matter what the document containing the amendment is labeled, the amendment can be made at any time as long as it does not alter the nature of the offense or is otherwise authorized by law.” 374 N.C. at 624. Looking at the plain language of the statutes, the official commentary, and the legislative intent behind those statutes, the higher court concluded that statements of charges “function as amendments to prior criminal pleadings like criminal warrants but for convenience and clarity may completely supplant the prior pleading,” and per G.S. 15A-922(d) they may also charge new or different offenses if they are filed before arraignment in district court. Id. at 627.

Second, the court held that “the result is the same even if we treat the prosecutor’s filing as a statement of charges and not as an amendment to the original charging instrument.” Id. at 627. Contrary to the appellate court’s reading, the state Supreme Court explained that G.S. 15A-922(e) does not mean that the state’s ability to file a statement of charges after arraignment in district court is restricted to only those cases in which the defendant objects; instead, this prong of the statute “simply clarifies that a prosecutor may still file a statement of charges in that circumstance if doing so does not change the nature of the offense. It does not mean that a prosecutor may file a statement of charges only in that circumstance.” Id. at 628 (emphasis in original).

So far, so good, for the state — whether it’s viewed as a “true” amendment or an amendment “in substance” made through a statement of charges, this modification was permissible as an amendment under G.S. 15A-922(f) and G.S. 15-24.1.

Well, to be more precise, it’s permissible under those statutes as long as it doesn’t change the nature of the offense or prejudice the defendant. Which reminds me…

What About the “Legal Entity” Hard Place?

If the state’s modification to the pleading was an amendment, wasn’t it an impermissible amendment to cure a fatal defect? As noted above, the reason why the state sought to modify the original pleading in this case was because it failed to allege that the victim, “Love’s Truck Stop,” was either a natural person or a legal entity capable of owning property. Over the years, our case law has allowed greater leeway in how the state may allege that possessory capability, such as if the victim’s name inherently denotes the ability to own property (e.g., Inc., Corp., LLC, Church, or Trust) or by simply including the catch-all phrase “a legal entity capable of owning property.” My colleagues have covered that issue in several prior posts located here, here, and here.

But I was under the impression that the courts were still holding a pretty firm “fatal defect” line for pleadings alleging larceny or other interference with personal property offenses if they fail to include any of the options above. The court in Capps apparently disagreed, and held that the substance of this amendment was within bounds:

Together these provisions allow a prosecutor to amend a warrant as long as the amendment does not change the nature of the charges or is otherwise authorized by law. Here, the amendment simply corrected the legal name of the owner of the damaged property from “LOVES TRUCK STOP” to “Love’s Travel Stops & Country Stores, Inc.” Because the language of the original warrant, if not perfectly accurate, made substantially clear what entity owned the property, this limited change to the property owner’s name was authorized by N.C.G.S. § 15A-922(f) and N.C.G.S. § 15-24.1.

374 N.C. at 627. If that passage means what it appears to say, prosecutors should be able to cure a defective pleading alleging a crime like larceny from “Walmart” or “The Chuck Wagon” by moving to amend and add “Inc.” (or the full legal entity phrase), and for misdemeanor pleadings like a warrant it may be done “at any time prior to or after final judgment” per G.S. 15A-922(f).

But as I said in the introduction, I’m waiting to see how this portion of the opinion will be treated in subsequent cases. The Capps court did not mention Thornton and its progeny, much less declare an outright intent to overrule them. Additionally, the arguments before the court in Capps were more focused on the procedure used (statement of charges vs. amendment) than the particular defect being corrected (amendable vs. fatally defective), so its precedential value on this point may be debatable. But given the persistent frequency of this type of charging error, not to mention the consequences that can arise from failing to catch it before jeopardy has attached or judgment has been entered, some prosecutors may decide that’s a debate worth having.

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