Prosecutors Beware: State v. Newborn Provides a Word of Caution for Felon In Possession Indictments

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).

Category: Procedure, Uncategorized | Tags: charging, indictment, murder, offense date, pleading

The Court of Appeals Finds Another Fatal Defect in a Sex Offender Indictment

Posted on October 3, 2012 by Jeff Welty

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.

Category: Procedure, Uncategorized | Tags: barnett, fatal defect, indictment, registration, sex offender

The Court of Appeals Finds Indictment Errors — We Offer an Updated Resource for Avoiding Them

Posted on June 5, 2012 by Jeff Welty

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.

Category: Procedure, Uncategorized | Tags: arrest warrant and indictment forms, habitual felon, herman, indictment, ross

Sufficient or Insufficient?

Posted on April 19, 2012 by Jeff Welty

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