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.
Tag Archives: pleading
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).
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.