Is it proper to charge a defendant separately with a greater offense and with a lesser-included offense? For example, is it proper to charge a defendant with robbery and with larceny arising out of the same taking, even though larceny is a lesser-included offense of robbery? Continue reading
Tag Archives: indictments
Indictment issues are the bane of the prosecutor’s existence. The rules about how an offense must be alleged in the indictment are highly technical. And because the rules are neither intuitive nor entirely consistent across offenses, they are hard to keep straight. Not surprisingly indictment issues account for a lot of black ink in the appellate reporters. Just how much? In my Criminal Case Compendium, which catalogues all types of criminal cases decided since 2008, there are a full 26 pages of case annotations on indictment issue cases! Continue reading →
Today, the court of appeals reversed a defendant’s drug convictions because the indictments identified the controlled substances in question using terms that are widely used to describe the drugs, but that are neither the chemical names listed in the controlled substance schedules nor – according to the court – “trade names” for the drugs. Because more and more drug cases involve pharmaceuticals that have many names, it is worth reviewing the case. Continue reading →
A recent conversation reminded me about a question I’ve received several times over the years: On a habitual felon indictment, what should be listed as the offense date? The two main choices are (1) the date of the substantive felony with which the defendant is charged, and (2) the date of the last of the defendant’s previous convictions, i.e., the date that the defendant became a habitual felon. Continue reading →
Many veteran prosecutors know the rule, “plead in the conjunctive.” In other words, in an indictment or other charging document, join different theories of the crime with the word “and” instead of the word “or,” even when the statute defining the offense uses “or.” It’s an archaic rule, but it comes up often enough that I thought I’d discuss it here.
If there are multiple offenses, plead each one in a separate count. This post focuses on how to plead a single crime that can be committed multiple ways. But it’s important to remember at the outset that when the state is actually charging a defendant with multiple crimes, the offenses must be alleged in different counts. Under G.S. 15A-924(a)(2), a criminal pleading must contain “[a] separate count addressed to each offense charged.” And, under G.S. 15A-924(b), “[i]f any count . . . charges more than one offense, the defendant may by timely filing a motion require the State to elect and state a single offense alleged in the count upon which the State will proceed to trial. A count may be dismissed for duplicity if the State fails to make timely election.” The state may also amend the pleading to separate the offenses into separate counts. State v. Stephens, 188 N.C. App. 286, 292 (2008) (quoting State v. Rogers, 68 N.C. App. 358, 379 (1984)).
If there is a single offense that can be committed in several ways, charge the theories conjunctively in a single count, using “and” instead of “or,” even if the statute defining the offense uses “or.” For example, although G.S. 14-100, which defines the offense of obtaining property by false pretenses, encompasses “obtain[ing] or attempt[ing] to obtain” property, the best practice is to allege that the defendant did “obtain and attempt to obtain” property. State v. Armstead, 149 N.C. App. 652, 654-55 (2002). See also, e.g., State v. Swaney, 277 N.C. 602, 611-12 (1971) (armed robbery indictment properly alleged that the defendant “endangered and threatened” the life of the victim, though G.S. 14-87 requires only that the defendant “endangered or threatened” the victim’s life). The reason courts have given for this practice is that the use of the disjunctive term “or” may “leave it uncertain what is relied on as the accusation against [the defendant].” Swaney, 277 N.C. at 612.
Other jurisdictions agree. The rule that prosecutors should “plead in the conjunctive” is not unique to North Carolina practice. The United States Attorneys Manual advises that “[t]o avoid uncertainty in charging an offense in which the statute enumerates several different acts in the alternative, the practice is to plead the offense by substituting the conjunction ‘and’ for the disjunctive ‘or.’” Federal case law supports this recommendation. For example, the Fourth Circuit recently stated that “it is settled that a charging document must allege conjunctively the disjunctive components of an underlying statute.” United States v. Vann, 660 F.3d 771, 774 (4th Cir. 2011) (en banc). And this article written for Texas prosecutors provides essentially the same counsel.
Disjunctive charging is not necessarily improper. Although the preferred practice is to charge in the conjunctive, a pleading that charges in the disjunctive is not necessarily fatally defective. In State v. Haddock, 191 N.C. App. 474 (2008), the indictment charged the defendant with second-degree rape based on the theories that the victim was “mentally disabled, mentally incapacitated and/or physically helpless.” The court ruled that although the use of “and/or” was not the best practice, the indictment remained valid because it gave the defendant sufficient notice of the charges. The court also stated that both “and” and “or” are superior to “and/or.” See also State v. Jones, 242 N.C. 563 (1955) (warrant charging that the defendant did “build or install” a septic tank without a permit was not defective). In fact, as a leading commentator has observed, “[m]echanically turning ‘or’ to ‘and’ doesn’t actually provide any additional notice [to the defendant],” so the whole idea that it is better to charge in the conjunctive is likely “nonsensical.” Orin Kerr, The Strange Practice of Indicting in the Conjunctive, Volokh Conspiracy (Sept. 25, 2009).
There is no requirement that the state charge all possible ways of committing an offense. Finally, just because a statute sets out several ways to commit an offense doesn’t mean that the state must allege all those ways. For example, kidnapping is defined in G.S. 14-39 to include “unlawfully confin[ing], restrain[ing], or remov[ing]” another person, but if in a particular case there were no evidence of removal, the state could properly allege only that the defendant did “confine and restrain” the victim. Still, the pleading is not defective even if the state alleges all three terms. At the charging stage, the unsupported term “remove” would be harmless surplusage. State v. Armstead, 149 N.C. App. 652, 655 (2002) (false pretenses indictment alleging that the defendant used a pretense that was “calculated to deceive and did deceive” was not defective even though the state’s evidence showed that the victim was not deceived). By contrast, the submission of an unsupported theory of the offense to the jury is not harmless, but that’s a topic for another post.
An indictment defect is a boon for the defense and a disaster for the prosecution. Simply put an indictment is defective when it fails to allege an essential element of the crime. Because fatal defects are jurisdictional, they can be raised at any time—at trial, on appeal, or post-conviction—and can never be waived. A closely related problem is fatal variance. A fatal variance occurs when the evidence doesn’t match up with the allegations in the indictment. If a fatal variance occurs, the defendant gets a dismissal. A lot of these errors can be spotted with a careful look at the indictment up front. But what should you look for? Unfortunately this area is quite technical and there are a lot of issues that can trip you up. If you want a detailed analysis, check out my lengthy paper on the issue here. But if you’re looking for some quick tips, read on for my top five indictment errors.
#5. Failing to properly allege a deadly weapon assault. For a deadly weapon assault, the indictment either has to allege that the weapon was a deadly weapon (e.g., “a handgun, a deadly weapon”) or must allege facts demonstrating its deadly character (e.g., “a 3 foot long steel pipe weighing 10 pounds”). State v. Palmer, 293 N.C. 633, 634-44 (1977). If the indictment fails to do this, it can’t support a conviction for a deadly weapon assault.
#4. Failing to allege the buyer/recipient of a drug sale or delivery and/or getting the drug name wrong. Indictments alleging sale and delivery of a controlled substance must allege the name of the purchaser or recipient if known; if that person’s name is unknown, the indictment should allege that fact. See, e.g., State v. Bennett, 280 N.C. 167, 168-69 (1971). Also, the indictment must correctly identify the controlled substance at issue. See, e.g., State v. LePage, __ N.C. App. __, 693 S.E.2d 157 (2010) (indictments identifying the controlled substance as “BENZODIAZEPINES, which is included in Schedule IV of the North Carolina Controlled Substances Act[.]” were defective; Benzodiazepines is not listed in Schedule IV; additionally, benzodiazepine describes a category of drugs, some of which are listed in Schedule IV and some of which are not).
#3. Alleging too much. Not everything needs to be included in the indictment and there is a danger in alleging too much. In many instances, if the prosecution alleges facts that aren’t required, it may find itself bound by those allegations. Take for example, State v. Yarborough, 198 N.C. App. 22 (2009), holding that although a kidnapping indictment need not allege the felony intended, if it does, the State is bound by that allegation. State v. Clark, __ N.C. App. __, 702 S.E.2d 324 (2010), is similar; in that case the court held that although the State is not required to allege the felony or larceny intended in an indictment charging breaking or entering a vehicle, if it alleges a specific crime, the State will be bound by that allegation.
#2. In a kidnapping case, failing to allege the correct theory. Kidnapping indictments must allege that the defendant confined, restrained, or removed the victim. Many times the kidnapping indictment alleges one or two of these acts but fails to allege the conduct shown by the evidence. When this is the case, the judge may not instruct on theories not alleged in the indictment. See State v. Tucker, 317 N.C. 532, 536-40 (1986) (plain error to instruct on restraint when indictment alleged only removal); State v. Bell, 166 N.C. App. 261, 263-65 (2004) (trial court erred in instructing on restraint or removal when indictment alleged confinement and restraint but not removal); State v. Smith, 162 N.C. App. 46 (2004) (trial court erred in instructing the jury that it could find the defendant guilty of kidnapping if he unlawfully confined, restrained, or removed the victim when the indictment only alleged unlawful removal); State v. Dominie, 134 N.C. App. 445, 447 (1999) (when the indictment alleged only removal, trial judge improperly instructed that the jury could convict if the defendant confined, restrained, or removed the victim).
And the #1 indictment error . . .
In a larceny case, failing to allege or messing up the name of the possessor. For larceny and other crimes that interfere with the right of possession, the indictment must allege the person in lawful possession of the property. If it doesn’t do this, it is defective. See, e.g., State v. McNeil, __ N.C. App. __, 707 S.E.2d 674 (2011) (an indictment for felonious larceny that failed to allege ownership in the stolen handgun was fatally defective). Additionally, the allegation must make clear that the named possessor is either a natural person (e.g., Jessie Smith) or an entity capable of possessing property. See, e.g., State v. Patterson, 194 N.C. App. 608 (2009) (larceny indictment alleging victim’s name as “First Baptist Church of Robbinsville” was fatally defective because it did not indicate that the church was a legal entity capable of owning property). If the victim is a corporation, this requirement is satisfied by alleging the corporation’s full corporate name with a designation as to the entity’s corporate status (e.g., “Inc.”). If there is no short form for designating that the entity is capable of possessing property, the indictment should expressly state that the entity has that capability (e.g., “First Baptist Church of Robbinsville, an entity capable of possessing property”).
In the game show Name that Tune, contestants had to identify song titles correctly in order to win cash prizes. In criminal pleadings in North Carolina, the state must identify drugs correctly in order to win convictions.
The latest illustration of this principle is State v. LePage, a decision rendered by the court of appeals last week. The defendant invited a teenage girl over to help with a craft project, drugged her food, and sexually assaulted her. He was charged with and convicted of several sex crimes, but he was also convicted of possession of a controlled substance with the intent to distribute; contaminating food or drink with a controlled substance; and delivery of a controlled substance to a minor. The indictments for the drug charges described the controlled substance at issue as “benzodiazepenes,” which the indictments categorized as falling under Schedule IV. (For more on the scheduling of drugs, see this post.)
In fact, the evidence suggested that the drug was clonazepam, one of a class of drugs known as benzodiazepenes. On appeal, the defendant argued that the indictment was fatally defective for failing to identify the specific controlled substance involved. The court of appeals agreed and vacated the drug convictions. (It affirmed the sexual assault convictions, which carried the heaviest sentences.) It noted that the term “benzodiazepenes” does not appear in Schedule IV, and that although many benzodiazepenes are Schedule IV drugs, some, like phenazepam, do not appear on the controlled substance schedules at all.
This isn’t the first time our appellate courts have demanded precision in charging drug crimes. See, e.g., State v. Ahmadi-Turshizi, 175 N.C. App. 783 (2006) (indictments for drug offenses involving “methylenedioxymethamphetamine” insufficient because Schedule I refers only to “3, 4-Methylenedioxymethamphetamine”; State v. Ledwell, 171 N.C. App. 328 (2005) (similar). And these rulings are reminiscent of the court of appeals’ recent cases rejecting lay opinion testimony about the identity of controlled substances. (See this post for an analysis of these cases.) The common theme is a demand for exactitude: just as winning Name that Tune required that the contestant’s answer was an “exact match” for the song title, under North Carolina law, the description of the substance in the criminal pleading must be an exact match for a substance listed in the appropriate schedule.