Suppose the State is prosecuting a defendant for the sexual assault of a young child. Though the child has been identified by name in the arrest warrant and investigative reports provided to the defendant, the State would prefer not to name the victim in the indictment. May it refer to the victim in that document as “Victim #1”?
Tag Archives: indictment
Ordinarily, a pleading that fails to accurately allege every element of the offense is defective and is treated as a jurisdictional nullity. See, e.g., G.S. 15A-924(a)(5) (“as a prerequisite to its validity, an indictment must allege every essential element of the criminal offense it purports to charge”); State v. Harris, 219 N.C. App. 590 (2012) (indictment is invalid and confers no jurisdiction on the trial court if it “fails to state some essential and necessary element of the offense”).
The limited exception to this rule is the somewhat relaxed pleading standard for a citation, which may still be sufficient even if it fails to state every element, as long as it reasonably identifies the crime charged. Shea Denning and Jeff Welty covered that issue in a series of posts available here, here, and here.
Several recent cases from the Court of Appeals have offered a good reminder about another important corollary to the general rule for pleadings: although an indictment must “allege every element” in order to be valid, the state has quite a bit of flexibility in how that standard can be met.
Belk Department Stores are the Bloomingdales of North Carolina. If someone says they are going to Belk (or, more often, “Belk’s”), you know that they are heading into town to pick up some modern, southern style (or, more likely, something off the wedding registry). And if you hear that so-and-so stole something from your local Belk’s, you can generally picture the scene of crime, since, outside of the big cities, there is generally just one Belk’s in town. So when the court of appeals held last year that a Rowan County indictment alleging that the defendant stole shirts belonging to “Belk’s Department Stores, an entity capable of owning property,” was invalid because it failed to adequately identify the victim of the larceny, it may have left some people in Salisbury (where there is only one Belk’s) scratching their heads.
The state supreme court recently reversed that determination in a per curiam opinion that rejected this kind of technical pleading requirement for larceny of personal property.
The court of appeals last year vacated Sandra Brice’s conviction for habitual misdemeanor larceny for stealing five packs of steaks valued at $70 from a Food Lion in Hickory. The reason? The indictment alleged the steak theft and Brice’s four prior convictions for misdemeanor larceny in a single count. That violated a statutory rule requiring that prior convictions be alleged in a separate count, and, in the court of appeals’ view, deprived the superior court of jurisdiction to enter judgment against Brice for habitual misdemeanor larceny, a felony offense. Earlier this month, the North Carolina Supreme Court reversed the court of appeals and remanded the case for reinstatement of the trial court’s judgment. Read on to find out why.
Yesterday, the grand jury in St. Louis County, Missouri , declined to indict officer Darren Wilson in connection with the fatal shooting of Michael Brown. Some commentators have criticized the decision of the local prosecutor, Robert McCulloch, to present all the evidence to the grand jury, rather than only evidence that would support an indictment. I don’t think that’s a fair criticism, for reasons I explain below. Continue reading →
Suppose that Dan shoots Victor on January 1, and that Victor dies from his wounds, but not until January 3. When a magistrate issues an arrest warrant, or the grand jury returns an indictment, should the date of offense be listed as January 1, the date of the attack? Or January 3, the date of the victim’s death?
My view is that either one is probably fine, but that alleging a range of dates spanning the assault and the victim’s death is the best solution. Here are summaries of some relevant cases:
- State v. Price, 310 N.C. 596 (1984) (defendant shot victim on December 17, but victim did not die until February 5; murder indictment initially listed February 5 as the offense date, but the state moved to, and was allowed to, amend the date to December 17; court characterizes this as “the date the offense occurred” and ruled that the amendment was proper as it did not substantially alter the charge; also states that “the date on the indictment for murder, if erroneous, was not an essential element of the offense” and cites G.S. 15-155, which provides that errors as to date are not fatal defects)
- State v. Holton, 284 N.C. 391 (1973) (defendant shot victim in September, but victim did not die until December; indictment gave the September date as the date of the offense; no fatal variance between allegation and proof: “The indictment in this case stated the date on which the fatal injury was inflicted rather than the date on which the death occurred. This Court, as early as 1854 in State v. Baker, 46 N.C. 267 [(1854)], held that where an indictment charged the murder as of the date the blow was given, and the evidence revealed that the victim lived for twenty days after receiving the blow and then died, such variance was not material.”)
- Manning v. State, 182 S.E.2d 690 (Ga. App. 1971) (indictment alleged “that defendant did kill and murder one Alvin Meeler on June 5, 1969 by shooting him with a pistol” and the court ruled that “there was no fatal variance in the allegata and probata where it appeared that Meeler was shot on June 5, 1969, but languished and died June 11, 1969”)
Sometimes a range of dates is clearly the best solution, as in some child abuse cases where the victim’s death is the culmination of a long series of events. See, e.g., State v. Duncan, 835 So. 2d 623 (La. Ct. App. 1st Cir. 2002) (original indictment in child abuse murder case alleged that the offense took place on December 19, 2000; state was properly allowed to amend the indictment to “between 12/17/96 and 12/18/2000,” the dates of the child’s birth and death; “years of abuse, mistreatment, and starvation” caused the victim’s death).
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.
The court of appeals issued a new batch of opinions today. They’re available in full here, and Jessie just sent summaries out to the listserv. (If you haven’t joined the listserv for case summaries, you can do so here.) The thing that jumped out at me about today’s cases was that the court found several fatal indictment errors. At the end of this post, I’ll mention a new resource for avoiding such errors.
The defendant in State v. Herman was charged with being a sex offender unlawfully on a premises in violation of G.S. 14-208.18(a)(2). The defendant challenged the constitutionality of the statute, arguing that it was vague and abridged his rights to the free exercise of religion and to the freedom of association. The trial judge agreed and dismissed the charges. The state appealed. The court of appeals did not reach the merits of the issue, instead choosing to dispose of the case based on the insufficiency of the indictment, an issue not raised by the defendant. Essentially, the indictment charged that the defendant was willfully and unlawfully present on premises that were within 300 feet of a location intended primarily for the use of minors, in violation of G.S. 14-208.18(a)(2). What the indictment didn’t do was allege that the defendant was a person required to register under Article 27A of Chapter 14 who had committed an offense in Article 7A of Chapter 14 or an offense with a victim under 16. Citing State v. Harris, discussed here, which held that an indictment for a violation of G.S. 14-208.18 must include allegations concerning the registration obligation and prior offense of the defendant, the court of appeals ruled that the indictment in Herman was fatally defective, and that dismissal was proper.
Meanwhile, in State v. Ross, the court considered the following facts:
- Sept. 2008 – Defendant charged with possession of a firearm by a felon (I’m guessing at this date, but nothing turns on it)
- Sept. 2008 – Defendant charged with being a habitual felon
- May 2009 – Superseding habitual felon indictment returned, effectively making technical corrections to the earlier indictment
- June 2009 – During defendant’s trial on unrelated drug charges, defendant offers a bribe to two jurors
- July 2009 – Defendant is charged with several offenses related to the bribery incident
- July 2011 – Defendant is tried on the bribery charges, is convicted, and is sentenced as a habitual felon (there’s a reference in the court’s opinion to July 1, 2009, which I’m guessing is a mistake)
On appeal, the defendant argued that the state should not have been allowed to proceed against him as a habitual felon, because the habitual felon indictment was returned before he had even committed the bribery offenses, and so could not possibly be ancillary to those offenses. Citing State v. Flint, 199 N.C. App. 709 (2009), the court of appeals agreed. It stated that a habitual felon indictment may attach to an indictment for a substantive felony that is returned after the habitual felon indictment, but that the habitual felon indictment may not attach when the substantive felony is committed after the habitual felon indictment is returned.
Nothing’s earth-shattering about these results. But they do serve as a reminder that indictment errors are frequent and can be frustrating. The School of Government publishes a manual called Arrest Warrant and Indictment Forms, available here, that contains recommended charging language for several hundred offenses. The manual itself isn’t new, but earlier this week, we released the 2012 update, with several all-new forms and revised versions of several others. The update is a free PDF, and is available here.
Under G.S. 14-208.18, it is a crime for certain sex offenders “to knowingly be at” certain locations, including “[o]n the premises of any place intended primarily for the use, care, or supervision of minors.” The court of appeals recently decided State v. Harris, a case concerning an indictment for that offense. The court’s opinion makes some interesting points, so I’ll set out the indictment, and then administer a quiz.
The indictment alleged that the defendant
did unlawfully, willfully and feloniously on the premises of Winget Park Elementary School, located at . . . Charlotte, North Carolina. A place intended primarily for the use, care, or supervision of minors and defendant is a registered sex offender.
On appeal, the defendant identified several alleged defects in the indictment. So here’s the quiz: which of the following problems, if any, did the court of appeals view as requiring relief for the defendant?
a. The omission of “go” or “be” from the phrase “did unlawfully, willfully and feloniously on the premises
b. The failure to allege “knowingly,” which is the mens rea term used in G.S. 14-208.18
c. The lack of any antecedent for the phrase “[a] place intended primarily for the use, care, or supervision of minors”
d. The failure to specify that the defendant’s reportable conviction was for an offense in Article 7A of Chapter 14
e. None of the above, the court determined that the indictment was sufficient
The answer is after the break.
In a post here, I listed my top five indictment errors. The number one error was misstating the victim’s name in an indictment charging larceny or a related crime interfering with the right of possession. In that context the problem typically involves failing to allege the victim as a natural person or an entity capable of owning property. Problems regarding allegations as to the victim’s name, however, come up in other contexts as well.
With respect alleging the victim’s name, several general rules apply:
(1) a charging document must name the victim;
(2) a fatal variance results when an indictment incorrectly states the victim’s name; and
(3) it is error to allow the State to amend an indictment to change the victim’s name.
With respect to rule (1)—naming the victim—in certain circumstances, initials may be used. For example, in State v. McKoy, 196 N.C. App. 650 (2009), the court held that rape and sexual offense indictments were not fatally defective when they identified the victim by her initials, “RTB.” The court concluded that the defendant was not confused regarding the victim’s identity and because the victim testified at trial and identified herself in open court, the defendant was protected from double jeopardy. But see In re M.S., 199 N.C. App. 260 (2009) (distinguishing McKoy and holding that juvenile petitions alleging first-degree sexual offense against “a child” were defective).
Notwithstanding rules (2) and (3) above, the appellate courts find no fatal defect or variance or bar to amendment when a name error falls within the doctrine of idem sonans. Under this doctrine, a variance is not material if the names sound the same. Other cases hold that the name errors are immaterial if they are typographical or did not mislead the defendant. The cases summarized below illustrate these exceptions. Note that when these cases are compared to those often cited in support of the general rules, some inconsistency appears.
State v. Williams, 269 N.C. 376, 384 (1967) (indictment alleged victim’s first name as “Mateleane” but trial evidence indicated it was “Madeleine”; the variance came within the rule of idem sonans).
State v. Gibson, 221 N.C. 252, 254 (1942) (variance between victim’s name as alleged in indictment—“Robinson”—and victim’s real name—“Rolison”—came within the rule of idem sonans).
State v. Hewson, 182 N.C. App. 196, 211 (2007) (no error in allowing the State to amend a murder and shooting into occupied dwelling indictment to change victim’s name from “Gail Hewson Tice” to “Gail Tice Hewson”).
State v. Holliman, 155 N.C. App. 120, 125-27 (2002) (no error to allow the State to change name of murder victim from “Tamika” to “Tanika”).
State v. McNair, 146 N.C. App. 674, 677-78 (2001) (no error by allowing amendment to change victim’s name from Donald Dale Cook to Ronald Dale Cook; victim’s correct name appeared twice in one of the two challenged indictments).
State v. Wilson, 135 N.C. App. 504, 508 (1999) (no fatal variance between indictment that alleged assault victim’s name as “Peter M. Thompson” and the trial evidence that his name was “Peter Thomas”; arrest warrant correctly named victim, defendant was aware of who the victim was, and the names fall within the doctrine of idem sonans).
State v. Bailey, 97 N.C. App 472, 475-76 (1990) (no error in allowing the State to amend victim’s name in three indictments from “Pettress Cebron” to “Cebron Pettress”).
State v. Marshall, 92 N.C. App. 398, 401-02 (1988) (no error to allow amendment of rape indictment to change victim’s name from Regina Lapish to Regina Lapish Foster; defendant was indicted for four crimes, three indictments correctly alleged the victim’s name, and only one omitted her last name).
State v. Isom, 65 N.C. App. 223, 226 (1983) (no fatal variance between indictments naming victim as Eldred Allison and proof at trial; although victim testified at trial that his name was “Elton Allison,” his identification indicated his name was Eldred and the defendant referred to the victim as Elred Allison; the names Eldred, Elred, and Elton fall within the doctrine of indem sonans).
The courts have recognized other exceptions to the general rules. For example, they have held that variances aren’t fatal and amendments are permissible when the victim’s name legally changes. State v. Bowen, 139 N.C. App. 18, 27 (2000) (trial court did not err by allowing the State to change the victim’s last name in a sex crimes indictment to properly reflect a name change that occurred because of an adoption subsequent to when the indictment was issued; State v. Johnson, __ N.C. App. __, 690 S.E.2d 707 (2010) (no fatal variance where an indictment charging sale and delivery of a controlled substance alleged a sale to “Detective Dunabro;” the evidence at trial showed that the detective had married and was known as Amy Gaulden; because Detective Dunabro and Amy Gaulden were the same person, known by both a married and maiden name, the indictment sufficiently identified the purchaser; the court noted that “[w]here different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide”). Also State v. Sisk, 123 N.C. App. 361, 366 (1996), aff’d in part, 345 N.C. 749 (1997), held that the State could amend an uttering a forged instrument indictment, changing the name of the party defrauded from First Union National Bank to Wachovia Bank. Sisk reasoned that the bank’s name did not speak to the essential elements of the offense charged and that the defendant did not rely on the identity of the bank in framing her defense. Additionally, State v. Ingram, 160 N.C. App. 224, 226 (2003), aff’d, 358 N.C. 147 (2004), held that it was not error to allow the State to amend a robbery indictment by deleting the name of one of two victims alleged.
And finally (because I’m feeling very “professory” today), top honors to the first person who can cite the source of the title to this post.