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

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.