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
Tag Archives: offense date
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 criminal indictment must allege an offense date. G.S. 15A-924(a)(4) provides that a criminal pleading must contain “[a] statement or cross reference in each count indicating that the offense charged was committed on, or on or about, a designated date, or during a designated period of time.” The statutory short forms reiterate this requirement. See, e.g.,G.S. 15-144.1 (rape); G.S. 15-144.2 (sex offense). However, a judgment won’t be reversed when the indictment fails to allege or incorrectly alleges a date or time, if time is not of the essence of the offense and the error or omission did not mislead the defendant.See G.S. 15-155; G.S. 15A-924(a)(4); State v. Price, 310 N.C. 596, 599 (1984). Likewise, when time is not of the essence, an amendment as to date does not substantially alter the charge. Time becomes of the essence when an omission or error regarding the date deprives a defendant of an opportunity to adequately present his or her defense, Price, 310 N.C. at 599, and this can occur when the defendant relies on an alibi defense. See State v. Stewart, 353 N.C. 516, 518 (2001).
The recent Court of Appeals case, State v. Avent, __ N.C. App. __, __ S.E.2d __ (Aug. 7, 2012), applies these rules. Avent was a murder case in which the indictment alleged an offense date of December 28, 2009. The trial court allowed the State to amend the date offense to December 27, 2009. After he was convicted, the defendant appealed arguing that because he raised an alibi defense, time was of the essence and the amendment was improper. The court disagreed, finding that the amendment did not deprive the defendant of an ability to adequately present his defense and that he wasn’t misled by the error. The evidence showed that the victim was shot around 5:00 pm on December 27, 2009 in Rocky Mount. At trial, the defendant’s alibi witness, Quincy Johnson, testified that he picked up the defendant on December 27, 2009 in Rocky Mount between 3:00 and 3:30 pm. The two arrived at a house in Tarboro around 4:00 pm. After spending some time together Johnson left to drive someone to work. When Johnson returned to the house the next morning, the defendant was at the house in his pajamas.
The court concluded that the defendant “presented his alibi defense” and thus was not deprived of an opportunity to adequately present a defense. The court also noted that the State’s evidence included two eyewitness statements and the victim’s autopsy report, all of which listed the date of the murder as December 27, 2009. The defendant made no argument that he wasn’t aware of this evidence well before trial. Significantly, there wasn’t any suggestion that Johnson could have been more specific about when he left the defendant at the house on the 27th or that another alibi witness could have accounted for the defendant’s whereabouts at the time of death. In any event, Avent amplifies this basic point: an alibi defense doesn’t necessarily preclude amendment of offense date.
For many more cases on amending the indictment’s allegation of offense date, see my paper here.