I recently taught a class of law students about criminal pleadings. We discussed proper pleadings and defective pleadings, and the State’s ability to bring new charges against a defendant after a case is dismissed due to a fatal defect in the pleading. It was an interesting conversation, and it prompted me to look into the matter a bit more. This post summarizes the law. Continue reading
Tag Archives: fatal defect
A couple of months ago, I blogged about State v. Herman, __ N.C. App. __ (2012), a case in which the court of appeals found a fatal defect in an indictment charging the defendant with being a sex offender unlawfully on a premises in violation of G.S. 14-208.18(a)(2). In a nutshell, the indictment in that case failed to allege that the defendant belonged to the specific subclass of registrants to whom the unlawfully on premises statute applies. Yesterday, the court of appeals issued another opinion reversing a sex offender case based on a similar indictment error.
The defendant in State v. Barnett was a sex offender. He was convicted of failing to notify the sheriff’s office of a change of address, in violation of G.S. 14-208.9. On appeal, he argued that the indictment was defective. It alleged that he “unlawfully, willfully and feloniously did fail to provide written notice or notify the Gaston County Sheriff’s Department within three business days after a change of address as required by the North Carolina General Statute 14-208.9.” The court of appeals concluded that “[t]he indictment in this case failed to specify that Defendant was ‘a person required to register,’ an essential element of the charged offense.” The court ruled that the reference to G.S. 14-208.9 in the indictment did not save the document, relying on a line of cases providing that a correct statutory citation cannot cure inadequate charging language.
The court vacated the defendant’s conviction, though of course he is not home free: double jeopardy generally doesn’t bar a new prosecution under a valid indictment when an initial indictment is deemed defective. But the need for further proceedings could have been avoided through careful drafting. So far, the court’s rulings haven’t cast any doubt on the validity of the charging language for sex offender registration offenses contained in Arrest Warrant and Indictment Forms. At least for now, that language appears to be a safe haven for prosecutors and their assistants who are trying to navigate the minefield of sex offender indictments.
A fatal defect in an indictment occurs when the indictment fails to allege an essential element of the crime charged. A fatal variance, by contrast, occurs when the facts brought out at trial don’t match up with those alleged in the indictment, and this difference occurs as to an essential element. Here are two illustrative examples.
Example 1: A larceny indictment alleges that the defendant “unlawfully, willfully, and feloniously did steal, take, and carry away a 14K gold wedding band, personal property, such property having a value of $1,075.”
In this example the larceny indictment is fatally defective because it fails to allege an essential element: The name of the person in lawful possession of the property. It doesn’t matter what the evidence at trial shows because the indictment can’t stand on its own two feet.
Example 2: A larceny indictment alleges that the defendant “unlawfully, willfully, and feloniously did steal, take, and carry away a 14K gold wedding band, the personal property of Jessica Smith, such property having a value of $1,075.” At trial the evidence shows that the wedding band was in fact the property of and in the possession of Joan Melville.
In this example, the indictment names the wrong person as having possession of the property. For this offense, that’s a fatal variance. Note that in this case the indictment is okay on its face (it doesn’t suffer from a fatal defect). The problem is that the evidence doesn’t match the allegation as to an essential element and thus there is a fatal variance.
Aside from application, there is another important distinction between these concepts. Specifically, fatal defect is jurisdictional and fatal variance is not. Because fatal defect is jurisdictional, it can be raised at any time—before trial, after trial, or any time after conviction, even when the sentence has been fully served. Fatal variance on the other hand is not jurisdictional. That means that if it’s not raised at trial, it’s waived. There are many cases on point, including a recent one from the court of appeals. In State v. Mason, __ N.C. App. __, __ S.E.2d __ (Aug. 7, 2012), the defendant was convicted of armed robbery. He asserted on appeal that there was a fatal variance between the indictment and the evidence with respect to the victim’s name. The court concluded that by failing to assert fatal variance in a motion to dismiss, the defendant failed to preserve the issue for appellate review.
What’s the take away for litigants? First, check the indictment before trial. This will help you identify fatal defects. For prosecutors, if you keep the charging language in mind as you prepare the case, it will also help you avoid a fatal variance. Second, for the defense, check the indictment after the State rests. If there’s a fatal variance, be sure to make a motion to dismiss on that basis, because, as the title of this post indicates, use it or lose it is the rule.
For more information about all of these issues, see my paper here.