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N.C. Supreme Court Rules Deficient Indictment Not Jurisdictional and Issue Can’t be Raised for First Time on Appeal

by Dale Chappell

Deviations from statutory requirements are not jurisdictional and must be “properly preserved” for appellate review and not raised for the first time on appeal, the North Carolina Supreme Court held on November 3, 2017.

After Sandra Brice was found guilty by a jury in 2015 of habitual misdemeanor larceny, a felony, she challenged for the first time on appeal the indictment’s failure to comply with the requirements under N.C.G.S. § 15A928. Brice argued that the statutory requirements are jurisdictional, and the Court of Appeals agreed and overturned her conviction.

On appeal to the North Carolina Supreme Court, the State argued that failure to comply with the statute’s requirements is not jurisdictional, pointing out an apparent split between the appellate courts on the issue. The State asserted that “minor defects” that do not prejudice a defendant should not allow dismissal of the indictment. Brice countered that compliance with the statute is “no mere formality” to be ignored. The Court agreed with the State that compliance with the statute is not a jurisdictional defect requiring dismissal of the indictment, settling the split among the appellate courts.

The Supreme Court’s focus, however, was on the fact that Brice failed to raise the issue in the trial court before appealing to the appellate court. Responding to this at oral argument, Brice contended that there were two categories of indictment-related error that deprived a trial court of jurisdiction, even if the error was raised prior to taking an appeal. The Court did not disagree, but pointed out a third category of error that Brice missed.

Citing several of its decisions regarding a different statute that allows the State to correct problems with an indictment to avoid dismissal, the Court explained that a defendant can “waive” certain challenges to a defective indictment by failing to raise them in the trial court in a timely manner, or simply by proceeding forward without mentioning the error. This “third category of indictment-related errors,” the Court said, Brice “overlooked.”

Brice’s prior convictions were listed in her indictment when they should have been in a separate indictment outside the jury’s view, the Court admitted. The Court did not say this was an insignificant error; “however, [Brice] did not challenge before the trial court the failure of the indictment returned against her to comply with the separate indictment provision set out in N.C.G.S. § 15A928. For that reason ... she is not entitled to seek relief ... for the first time on appeal,” the Court held.

Accordingly, the Supreme Court reversed the Court of Appeals and instructed that the judgment of the trial court be reinstated. See: State v. Brice, 806 S.E.2d 32 (N.C. 2017). 

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