It is no secret that probable cause hearings are rare throughout North Carolina, despite clear provisions for conducting them in the general statutes. See G.S. 15A-606, 611-614. The reasons for their rarity have been set forth on this blog as far back as 2009. Prosecutors often point to the volume of felony cases moving through district court and the impracticality of conducting a mini-trial with “all the trappings of a full adversary hearing” in explaining why they routinely bypass the procedure. See State v. Lester, 294 N.C. 220, 224 (1978). However, skipping the PC hearing can create a gap, or bump, in the “regular” course of a criminal case, leading to various issues.
At the probable cause stage in district court, the defendant may waive the hearing, assert the right to a hearing and get one, or assert the right to a hearing and not get one. In this last scenario, the State, rather than engaging in the hearing, may choose to dismiss the case in district court and then recharge the matter in superior court by seeking an indictment. This practice is referred to as “voluntary dismissal to the grand jury” (VDGJ) or “dismissal for possible indictment.” The State’s bypassing of the probable cause hearing has never been deemed reversible error in North Carolina, as the defendant must demonstrate prejudice, which is rarely possible. See State v. Wiggins, 344 N.C. 18 (1993).
After voluntary dismissal to the grand jury, a crucial question arises as to whether an order for arrest (OFA) should issue upon indictment. The question is the subject of this blog post.
Why would the State enter a VDGJ in the first place?
Why would the State enter a VDGJ rather than simply move to continue the matter until able to obtain an indictment? The reason is that G.S. 15A-606 requires a probable cause hearing within 15 working days, and continuances are to be granted sparingly (only upon a showing of good cause prior to 48 hours before the hearing, and extraordinary cause within 48 hours). G.S. 15A-606(d), (f). If the court enforces the statute strictly, and the State is unable to obtain an indictment prior to the probable cause hearing date or show cause for a continuance, it leaves little option other than VDGJ.
VDGJ often results in the defendant being arrested twice for the same crime
A potentially unintended consequence of a VDGJ is that the defendant may be arrested for a second time after an OFA issues upon return of the indictment. This can result in embarrassment, inconvenience, and the expense of having to post bond twice for the same incident. If the defendant is unable to post bond in superior court, the result may be incarceration for an extended period, despite the defendant having been out of custody after posting bond in district court.
May an OFA issue upon indictment after VDGJ?
The statute governing this question is G.S. 15A-305(b)(1):
b) When Issued. – An order for arrest may be issued when:
(1) A grand jury has returned a true bill of indictment against a defendant who is not in custody and who has not been released from custody pursuant to Article 26 of this Chapter, Bail, to answer to the charges in the bill of indictment. (emphasis added)
It is not entirely clear whether the “charges in the bill of indictment” are the same “charges” as those in the warrant for arrest in district court under the statute. If they are the same charges, only cloaked in a new charging document, the defendant may argue that the issuance of an OFA is unlawful where the defendant was previously released from custody in district court to answer to “the charges.” This reading has some support in State v. Hunt, 123 N.C. App. 762 (1996). There, the defendant argued that the new bond imposed upon indictment was unlawful because he had previously bonded out in district court. Though the defendant did not succeed with this argument, the COA implied that he was unsuccessful because the State added a significant charge at the superior court stage, and if the charges had remained the same from district to superior, the new bond would have been unauthorized.
On the other hand, some may argue that the superior court indictment is a new matter with a new docket number, taking a more literal view of the phrase, “charges in the bill of indictment.” Under this reading, the phrase does not encompass district court charges, but rather only superseded indictments, as an OFA clearly should not issue if the State returns to the grand jury to clean up language in a pending indictment or modify its theory while proceeding on the same “charges in the bill of indictment.”
Even if an OFA after VDGJ is permissible, should it be issued?
The language of the statute makes it clear that the issuance of the OFA is discretionary. The OFA “may” issue rather than “shall” issue. See G.S. 15A-305; State v. Adams, 220 N.C. App. 406, 409 (2012) (G.S. 15A–305 permits but does not require an OFA after defendant fails to appear). In some judicial districts, the senior resident superior court judge creates a policy directing the clerk as to when an OFA should or should not issue after indictment (see, e.g., “Order for Arrest after Dismissal to the Grand Jury,” Policies and Procedures, Judicial District 26).
As a matter of fairness, the issuance of an OFA and subsequent potential incarceration after the defendant has previously posted bond for the same matter could be seen as penalization of the defendant for asserting the statutory right to a timely probable cause hearing. Courts have disapproved of penalizing the defendant for the assertion of a right in various contexts, although these situations typically involve constitutional rights, not the statutory right to a probable cause hearing. See State v. Cannon, 326 N.C. 37 (1990) (new sentencing hearing ordered where the defendant was penalized for exercising his constitutional right to a jury trial); Blackledge v. Perry, 417 U.S. 21 (1974) (vindictive prosecution where the defendant was penalized for asserting his statutory right to appeal from district to superior court for a trial de novo).
Especially where the defendant has attended multiple probable cause hearing settings in district court and otherwise demonstrated compliance with conditions of release, the superior court judge may consider declining to issue an OFA upon indictment after VDGJ. See G.S. 15A-304(b)(1) (setting forth relevant circumstances to consider when deciding whether to issue a warrant for arrest rather than a summons, such as failure to appear when previously summoned, dangerousness, and seriousness of offense).
What if the defendant was in jail when the State entered a VDGJ in district court?
Where the defendant was held on the “same” charge in district court when the State entered the VDGJ, an OFA is clearly permissible upon indictment, since the defendant was never “released from custody” on bail per the statute. See G.S. 15A-305(b)(1). A superior court judge may consider the factors above when determining whether to issue the OFA. See G.S. 15A-304(b)(1).
If no OFA issues, what about service and notice to the defendant?
G.S. 15A-630 provides for notice to the defendant after return of a true bill of indictment. The judge “must immediately cause notice of the indictment to be mailed or otherwise given to the defendant” unless the defendant has an attorney of record. This process appears to be valid service given language in G.S. 15A-941(d) referring to it as such. The AOC-CR-215 form, Notice of Return of Bill of Indictment, serves as a mechanism by which a defendant can be served, ordered to appear in superior court, and apprised of various rights and deadlines triggered by indictment.
If no OFA issues, what about conditions of release in Superior Court?
When the State enters a VDGJ, there is necessarily a gap in the proceedings that does not occur when the matter is “bound over” to superior court after a finding of probable cause or waiver of the hearing. During this gap, conditions of release such as stay-away orders are not in effect. If no OFA issues upon indictment, the State can address conditions of release at a first or subsequent appearance in Superior Court through appropriate motion.
What if the defendant fails to appear in Superior Court after notice is sent?
G.S. 15A-305(b)(5) provides broad authority to issue an OFA “in any criminal proceeding in which the defendant has become subject to the jurisdiction of the court” where it is “necessary to take the defendant into custody.”
Conclusion
The question of when and if an OFA should issue after VDGJ has legal and equitable nuances. Courts may wish to work through these nuances and promulgate local policies. In individual cases, advocates can weigh their arguments and assert their positions at or near the time of indictment. Both the State and the defense have an interest in resolving the question prior to the issuance of an OFA.