An experienced attorney from another state recently remarked on her surprise at learning that there was no statute of limitations barring the prosecution of felony offenses in North Carolina after the passage of a specified period of time. This attorney’s comment reminded me that while the no-statute-of-limitations-state-of-affairs may be well-known among experienced practitioners of criminal law in NC, it isn’t necessarily known by others.
The rule is simple. While G.S. 15-1 requires that misdemeanors (other than malicious misdemeanors, whatever those are) be charged within two years of their commission, there is no corresponding statute of limitations for felonies. See State v. Johnson, 275 N.C. 264, 271 (1969) (“In this State no statute of limitations bars the prosecution of a felony. . . . The constitutional guarantee of a speedy trial, therefore, imposes the only limitation upon purposeful and oppressive delays between the date of a felonious offense and the commencement of the prosecution.). That means there is no statutory time bar to charging any felony, whether it be a charge for writing a worthless check of more than $2,000 or first degree murder.
Prosecutions do occur decades after felonious acts. Just last month, the court of appeals upheld a defendant’s convictions for taking indecent liberties with a child and felony child abuse based on sexual conduct he inflicted on his daughter between 1990 and 1993, more than 25 years before he was charged with those crimes. See State v. Alonzo, ___ N.C. App. ___ (Aug. 21, 2018). Upon reaching the age of 18, the daughter of the defendant in Alonzo reported the abuse to the Cumberland County Sheriff’s Department, which “ultimately informed her that there is no statute of limitations for felonies in North Carolina.” (Slip op. at 2).
Similarly, the court of appeals in State v. Barnett, 223 N.C. App. 450 (2012), upheld the conviction of the defendant who was prosecuted for the second degree rape of his niece more than 25 years after the crime was committed. And in State v. Sharpe, 2006 WL 1320079, 177 N.C. App. 566 (2006) (unpublished), the court upheld the defendant’s convictions for rape and indecent liberties based on acts that occurred 29 to 30 years before the defendant was charged. In response to the defendant’s complaint in Sharpe that the delayed prosecution violated his constitutional rights (an argument that the court found he had failed to preserve for appeal), the State responded that “‘as a result of the complained of delay, defendant escaped thirty years of mandatory imprisonment.’” Id. at *9.
Is there any constitutional limitation against bringing charges for crimes long past? The Supreme Court in United States v. Marion, 404 U.S. 307 (1971), noted that legislatively enacted statutes of limitations are the “‘primary guarantee against bringing overly stale criminal charges’” and “‘provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.’” Id. at 322. The Marion Court recognized, however, that the Due Process Clause of the Fifth Amendment also played a role in determining whether delays in charging a defendant are permissible. The Court subsequently explained in United States v. Lovasco, 431 U.S. 783, 790 (1977), that a due process inquiry based upon the government’s delay in charging a defendant must consider the reasons for the delay as well as the prejudice to the accused. The North Carolina Supreme Court summed up the test this way: “Essentially a preaccusation delay violates due process only if the defendant can show that the delay actually prejudiced the conduct of his defense and that it was unreasonable, unjustified, and engaged in by the prosecution deliberately and unnecessarily in order to gain tactical advantage over the defendant.” State v. McCoy, 383 N.C. 1, 7-8 (1981).
What’s the rule for lesser-included misdemeanors? The court of appeals in State v. Taylor, 212 N.C. App. 238, 248–49 (2011), held that that two-year statute of limitations for misdemeanor offenses does not apply when the issue of a defendant’s guilt of a misdemeanor offense is submitted to the jury as a lesser included offense of a properly charged felony. In Taylor, the defendant was charged with felony obstruction of justice, but was convicted of the lesser included offense of misdemeanor obstruction of justice. Because the defendant was indicted more than two years after the obstructive acts, he could not have been independently charged with or tried for the lesser-included misdemeanor offense. The court rejected the defendant’s argument that the trial court erred by permitting the jury to consider the issue of his guilt of misdemeanor obstruction of justice. Noting that a defendant is entitled to have all lesser degrees of offense supported by the evidence submitted to the jury as possible alternative verdicts, the court determined that there was no exception to this rule for misdemeanors not charged within two years.
Do other states have a similar rule? I know of at least two other states who do not have statutes of limitations for felonies: Kentucky and Maryland (with some exceptions for specified felonies). Please send in a comment if you know of others.
What do you think? Is it good public policy to not have a statute of limitations for felonies? Should some types of felonies be subject to a limitations period? If so, which ones? Send in a comment to share your view.