State v. Brice

IN THE SUPREME COURT OF NORTH CAROLINA
No. 244PA16
Filed 3 November 2017
STATE OF NORTH CAROLINA
v.
SANDRA MESHELL BRICE
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 812 (2016), vacating and
remanding a judgment entered on 12 February 2015 by Judge Michael D. Duncan in
Superior Court, Catawba County. Heard in the Supreme Court on 30 August 2017.
Joshua H. Stein, Attorney General, by Kristin J. Uicker, Assistant Attorney
General, for the State-appellant.
Glenn Gerding, Appellate Defender, by Daniel L. Spiegel, Assistant Appellate
Defender, for defendant-appellee.
ERVIN, Justice.
After defendant Sandra Meshell Brice was convicted of committing the felony
of habitual misdemeanor larceny, a unanimous panel of the Court of Appeals vacated
defendant’s conviction and remanded this case to the trial court for the entry of a new
judgment and resentencing based upon a misdemeanor larceny conviction on the
grounds that the indictment returned against defendant in this case was fatally
defective. We reverse the Court of Appeals’ decision.
STATE V. BRICE
Opinion of the Court
On 22 July 2013, the Catawba County grand jury returned a single-count bill
of indictment purporting to charge defendant with habitual misdemeanor larceny.
The charge against defendant came on for trial before the trial court and a jury during
the 9 February 2015 criminal session of the Superior Court, Catawba County. After
the jury was empaneled and prior to the making of the parties’ opening statements,
defendant admitted, outside the presence of the jury and after an appropriate
colloquy with the trial court, to having been convicted of the four prior larcenies
delineated in the indictment. On 12 February 2015, the jury returned a verdict
convicting defendant of habitual misdemeanor larceny. Based upon the jury’s verdict,
the trial court entered a judgment sentencing defendant to an active term of ten to
twenty-one months imprisonment, suspended defendant’s active sentence, and placed
defendant on supervised probation for a period of twenty-four months on the
condition that defendant comply with the usual terms and conditions of probation,
serve a seventy-five-day term of imprisonment, and pay a $300.00 fine, attorney’s
fees, and the costs. Defendant noted an appeal to the Court of Appeals from the trial
court’s judgment.
In her sole challenge to the trial court’s judgment before the Court of Appeals,
defendant argued that the indictment’s failure to comply with the requirements
spelled out in N.C.G.S. § 15A-928 deprived the trial court of “jurisdiction to enter
judgment and sentence against [defendant] for felony habitual misdemeanor
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Opinion of the Court
larceny,” so that her “conviction for habitual misdemeanor larceny must be vacated
and remanded for entry of judgment on misdemeanor larceny.”
The State, on the other hand, noted defendant’s failure to challenge the validity
of the indictment that had been returned for the purpose of charging her with
habitual misdemeanor larceny before the trial court and pointed out that defendant
had not contended that “the indictment fails to describe each element of the crime
with sufficient specificity” or that she had been “prejudiced in preparing her defense
as a result of the indictment.” Thus, in the State’s view, any “variation” between “the
strict requirements of N.C.[G.S.] § 15A-928” and the indictment returned against
defendant in this case “is not reversible” error. As a result, the State urged the Court
of Appeals to leave the trial court’s judgment undisturbed.
In vacating the trial court’s judgment and remanding this case to the Superior
Court, Catawba County, for resentencing based upon a conviction for misdemeanor,
rather than habitual misdemeanor, larceny, the Court of Appeals concluded that “an
indictment for habitual misdemeanor larceny is subject to the provisions of N.C.[G.S.]
§ 15A-928” and that, “[o]n its face, the indictment here failed to comply with” that
statutory provision. State v. Brice, ___ N.C. App. ___, ___, 786 S.E.2d 812, 815 (2016).
The Court of Appeals rejected the State’s argument in reliance upon the decision in
State v. Jernigan, 118 N.C. App. 240, 455 S.E.2d 163 (1995), in which the Court of
Appeals had held that noncompliance with the arraignment procedures set out in
N.C.G.S. § 15A-928(c) constituted harmless error given that the defendant, who had
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Opinion of the Court
stipulated to his prior convictions prior to trial, “was fully aware of the charges
against him . . . , understood his rights and the effect of the stipulation, and . . . was
in no way prejudiced by the failure of the court to formally arraign him and advise
him of his rights.” Brice, ___, N.C. App. at ___, 786 S.E.2d at 815 (quoting Jernigan,
118 N.C. App. at 245, 455 S.E.2d at 167). In reaching this result, the Court of Appeals
stated that, while “a formal arraignment under [N.C.G.S. §] 15A-928(c) is not a
matter of jurisdictional consequence,” the indictment requirements set out in
N.C.G.S. § 15A-928(b) had been held to be jurisdictional in State v. Williams, 153 N.C.
App. 192, 568 S.E.2d 890 (2002), disc. rev. improvidently allowed, 357 N.C. 45, 577
S.E.2d 618 (2003) (per curiam). Id. at ___, 786 S.E.2d at 815. As a result, since the
failure of the indictment returned against defendant in this case to comply with the
requirements of N.C.G.S. § 15A-928 deprived the trial court of jurisdiction to enter
judgment against defendant based upon a conviction for habitual misdemeanor
larceny, the Court of Appeals vacated defendant’s conviction for that offense and
remanded this case to the trial court for the entry of judgment and resentencing based
upon a conviction for misdemeanor, rather than habitual misdemeanor, larceny. Id.
at ___, 786 S.E.2d at 815.
The State sought discretionary review of the Court of Appeals’ decision by this
Court on the grounds that “bills of indictment [should not be quashed] for mere
informality or minor defects which do not affect the merits of the case,” quoting State
v. Brady, 237 N.C. 675, 679, 75 S.E.2d 791, 793 (1953), and that this Court “do[es]
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Opinion of the Court
not favor the practice of quashing an indictment or arresting a judgment for
informalities which could not possibly have been prejudicial to the rights of defendant
in the trial court,” quoting State v. Russell, 282 N.C. 240, 248, 192 S.E.2d 294, 299
(1972). According to the State, the Court of Appeals implicitly held in State v.
Stephens, 188 N.C. App. 286, 293, 655 S.E.2d 435, 439-40, disc. rev. denied, 362 N.C.
370, 662 S.E.2d 389 (2008), that “an indictment that alleges all the felony offense’s
essential elements, including the prior conviction, properly alleges the felony offense”
“despite not complying with [the] form requirements” set out in N.C.G.S. § 15A-
928(b). In the State’s view, the Court of Appeals erred by relying upon Williams,
which had been “wrongly decided.” Finally, the State asserted that, assuming that
noncompliance with N.C.G.S. § 15A-928 constituted a jurisdictional defect, the Court
of Appeals had erred by failing to simply arrest judgment given that the trial court
lacked jurisdiction to convict defendant of, and sentence defendant for, a
misdemeanor in this case.
Defendant, on the other hand, argued that compliance with N.C.G.S. § 15A-
928 “is no mere formality, but rather is the formal mechanism by which the purpose
of [N.C.G.S.] § 15A-928 is achieved.” “If a defendant is not apprised of the opportunity
to admit the prior convictions outside of the presence of the jury,” “the defendant will
be unable to avoid the certain prejudice that would result from evidence of prior
convictions being presented to the jury.” In defendant’s view, the State is requesting
the Court to disturb settled North Carolina law, in accordance with which “the statute
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Opinion of the Court
must be strictly followed in order to apprise [the] defendant of the offense for which
he is charged and to enable him to prepare an effective defense,” quoting State v.
Jackson, 306 N.C. 642, 652 n.2, 295 S.E.2d 383, 389 n.2 (1982). Finally, defendant
asserted that the remedy that the Court of Appeals afforded to defendant in this case
has been “applied . . . time and time again” and “should remain undisturbed.” This
Court granted the State’s discretionary review petition on 8 December 2016.
In seeking to persuade us to overturn the Court of Appeals’ decision, the State
points out that this Court has held that “[a]n indictment is sufficient if it charges all
essential elements of the offense with sufficient particularity to apprise the defendant
of the specific accusations against him and (1) will enable him to prepare his defense
and (2) will protect him against another prosecution for that same offense,” quoting
State v. Bowden, 272 N.C. 481, 483, 158 S.E.2d 493, 495 (1968), and, citing State v.
House, 295 N.C. 189, 200, 244 S.E.2d 654, 660 (1978), that noncompliance with
provisions couched in mandatory terms is not necessarily fatal to the validity of an
indictment. The State contends that a decision to invariably quash an indictment
under circumstances such as those present here would attribute “to the Legislature
an intent to paramount [sic] mere form over substance,” quoting House, 295 N.C. at
203, 244 S.E.2d at 662. As a result, the State argues that, given that “we are no
longer bound by the ‘ancient strict pleading requirements of the common law’ ” and
that “contemporary criminal pleadings requirements have been ‘designed to remove
from our law unnecessary technicalities which tend to obstruct justice,’ ” quoting
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Opinion of the Court
State v. Williams, 368 N.C. 620, 623, 781 S.E.2d 268, 271 (2016) (quoting State v.
Freeman, 314 N.C. 432, 436, 333 S.E.2d 743, 746 (1985)), “[t]his Court should hold
that a pleading that does not conform to [N.C.G.S. §] 15A-928’s form requirements is
not jurisdictionally defective for that reason alone.”
Defendant, on the other hand, contends that the failure of the indictment
returned against him in this case to separate the allegations setting out the
substantive offense from the allegations delineating defendant’s prior convictions
renders that indictment fatally defective and insufficient to confer jurisdiction upon
the trial court to enter judgment against defendant based upon an habitual
misdemeanor larceny conviction. The fact that N.C.G.S. § 15A-928 utilizes
mandatory terms such as “must” and “may not” in describing the manner in which
allegations concerning a defendant’s prior convictions should be set out indicates that
these requirements should be treated as jurisdictional in nature, particularly given
that the relevant statutory provisions do not explicitly state that noncompliance with
the provisions of N.C.G.S. § 15A-928 is not a jurisdictional defect and that the General
Assembly has failed to amend the relevant statutory provision to reflect the State’s
interpretation despite several Court of Appeals opinions finding that noncompliance
with the separate indictment provisions of N.C.G.S. § 15A-928 constitutes a fatal
defect.
The crime of larceny is a felony, without regard to the value
of the property in question, if the larceny is . . . [c]ommitted
after the defendant has been convicted in this State or in
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Opinion of the Court
another jurisdiction for any offense of larceny under this
section, or any offense deemed or punishable as larceny
under this section, or of any substantially similar offense
in any other jurisdiction, regardless of whether the prior
convictions were misdemeanors, felonies, or a combination
thereof, at least four times. A conviction shall not be
included in the four prior convictions required under this
subdivision unless the defendant was represented by
counsel or waived counsel at first appearance or otherwise
prior to trial or plea. If a person is convicted of more than
one offense of misdemeanor larceny in a single session of
district court, or in a single week of superior court or of a
court in another jurisdiction, only one of the convictions
may be used as a prior conviction under this subdivision;
except that convictions based upon offenses which occurred
in separate counties shall each count as a separate prior
conviction under this subdivision.
N.C.G.S. § 14-72(b)(6) (2015). As a result, a criminal defendant is guilty of the felony
of habitual misdemeanor larceny in the event that he or she “took the property of
another” and “carried it away” “without the owner’s consent” and “with the intent to
deprive the owner of his property permanently,” State v. Perry, 305 N.C. 225, 233,
287 S.E.2d 810, 815 (1982) (citations omitted), overruled in part on other grounds by
State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911, 916 (2010), after having been
previously convicted of an eligible count of larceny on four prior occasions. N.C.G.S.
§ 14-72(b)(6).
N.C.G.S. § 15A-924 (a) provides, in pertinent part, that:
A criminal pleading must contain . . . [a] plain and concise
factual statement in each count which, without allegations
of an evidentiary nature, asserts facts supporting every
element of a criminal offense and the defendant's
commission thereof with sufficient precision clearly to
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Opinion of the Court
apprise the defendant or defendants of the conduct which
is the subject of the accusation.
N.C.G.S. § 15A-924(a)(5) (2015). “To be sufficient under our Constitution, an
indictment ‘must allege lucidly and accurately all the essential elements of the
offense endeavored to be charged.’ ” State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593,
600 (quoting State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953)), cert. denied,
539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003). “It is hornbook law that a valid
indictment is a condition precedent to the jurisdiction of the Superior Court to
determine the guilt or innocence of the defendant, and to give authority to the court
to render a valid judgment.” State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461
(1968) (citing, inter alia, N.C. Const. art. I, § 12). “A criminal pleading . . . is fatally
defective if it ‘fails to state some essential and necessary element of the offense of
which the defendant is found guilty.’ ” State v. Ellis, 368 N.C. 342, 344, 776 S.E.2d
675, 677 (2015) (quoting State v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943)
(citations omitted)). “[W]here an indictment is alleged to be invalid on its face,
thereby depriving the trial court of its jurisdiction, a challenge to that indictment
may be made at any time, even if it was not contested in the trial court.” State v.
Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (citations omitted), cert. denied, 531
U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498 (2000). “As to other less serious defects,
objection must be made by motion to quash the indictment or, in proper cases, a bill
of particulars may be demanded.” Gregory, 223 N.C. at 418, 27 S.E.2d at 142.
The indictment returned against defendant in this case alleged that:
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Opinion of the Court
The jurors for the State upon their oath present that
on or about the date of offense shown and in the county
named above [Sandra Meshell Brice] unlawfully, willfully,
and feloniously did steal, take, and carry away FIVE
PACKS OF STEAKS, the personal property of FOOD
LION, LLC, such property having a value of SEVENTY
DOLLARS ($70.00), and the defendant has had the
following four prior larceny convictions in which [s]he was
represented by counsel or waived counsel:
On or about MAY 8, 1996 the defendant committed the
misdemeanor of LARCENY in violation of the law of the
State of North Carolina, G.S. 14-72, and on or about
SEPTEMBER 10, 1996 the defendant was convicted of the
misdemeanor of LARCENY in the District Court of Lincoln
County, North Carolina; and that
On or about FEBRUARY 19, 1997, the defendant
committed the misdemeanor of LARCENY in violation of
the law of the State of North Carolina, G.S. 14-72, and on
or about JULY 29, 1997 the defendant was convicted of the
misdemeanor of LARCENY in the District Court of
Catawba County, North Carolina; and that
On or about JUNE 13, 2003 the defendant committed the
misdemeanor of LARCENY in violation of the law of the
State of North Carolina, G.S. 14-72, and on or about
OCTOBER 17, 2003 the defendant was convicted of the
misdemeanor of LARCENY in the District Court of
Catawba County, North Carolina; and that
On or about JULY 7, 2007 the defendant committed the
misdemeanor of LARCENY in violation of the law of the
State of North Carolina, G.S. 14-72, and on or about
SEPTEMBER 24, 2007 the defendant was convicted of the
misdemeanor of LARCENY in the District Court of
Catawba County, North Carolina.
A careful reading of the indictment returned against defendant in this case clearly
indicates that the Catawba County grand jury alleged that defendant had stolen,
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Opinion of the Court
taken, and carried away the property of another with the requisite intent after having
been previously convicted of misdemeanor larceny at times when she had either been
represented by or waived counsel in various North Carolina District Courts on four
separate occasions. As a result, given that the indictment returned against defendant
in this case alleged all of the essential elements of habitual misdemeanor larceny, it
sufficed to give the trial court jurisdiction over this case under the traditional test
utilized in evaluating the facial validity of a criminal pleading. On the other hand,
the indictment returned against defendant in this case unquestionably failed to
comply with the requirements of N.C.G.S. § 15A-928(a) and (b), which provide that,
in instances in which “the fact that the defendant has been previously convicted of an
offense raises an offense of lower grade to one of higher grade and thereby becomes
an element of the latter, an indictment or information for the higher offense may not
allege the previous conviction,” N.C.G.S. § 15A-928(a) (2015), and must, instead, “be
accompanied by a special indictment or information, filed with the principal pleading,
charging that the defendant was previously convicted of a specified offense,” or the
special indictment may be contained “in the principal indictment as a separate
count,” id. § 15A-928(b) (2015). As a result, the ultimate issue presented for our
consideration in this case is whether the fact that the indictment returned against
defendant in this case failed to comply with the separate indictment or separate count
requirement set out in N.C.G.S. § 15A-928 constituted a fatal defect sufficient to
deprive the trial court of jurisdiction to enter judgment against defendant.
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STATE V. BRICE
Opinion of the Court
Admittedly, this Court has stated on a number of occasions that, “[w]here
jurisdiction is statutory and the Legislature requires the Court to exercise its
jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects
the Court to certain limitations, an act of the Court beyond these limits is in excess
of its jurisdiction.” In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006)
(quoting Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975), overruled on other
grounds by Quick v. Quick, 305 N.C. 446, 457-58, 290 S.E.2d 653, 661 (1982),
superseded in part by statute, N.C.G.S. § 50-13.4(f)(9) (1983)). The extent, if any, to
which a particular statutory provision creates a jurisdictional requirement hinges
upon the meaning of the relevant statutory provisions. In re D.S., 364 N.C. 184, 187,
694 S.E.2d 758, 760 (2010) (stating that “[o]ur principal task here is to interpret the
statute”). According to well-established North Carolina law, “[t]he primary rule of
construction of a statute is to ascertain the intent of the legislature and to carry out
such intention to the fullest extent.” Burgess v. Your House of Raleigh, Inc., 326 N.C.
205, 209, 388 S.E.2d 134, 137 (1990) (citation omitted). “The best indicia of [the
legislative] intent are the language of the statute . . . , the spirit of the act, and what
the act seeks to accomplish.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm’rs, 299
N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citations omitted).
The statutory scheme created in N.C.G.S. § 15A-928 serves two important
purposes. State v. Ford, 71 N.C. App. 452, 454, 322 S.E.2d 431, 432 (1984) (stating
that the “purpose of [N.C.G.S. § 15A-928] is to insure that defendants are informed
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Opinion of the Court
of the prior convictions they are charged with and are given a fair opportunity to
either admit or deny them before the State’s evidence is concluded”). As an initial
matter, the provision set out in N.C.G.S. § 15A-928(b) requiring “a special indictment
or information” “charging that the defendant was previously convicted of a specified
offense” serves the purpose of ensuring that “the defendant has notice that he is to be
charged as a recidivist before pleading . . . , eliminating the possibility that he will
enter a guilty plea on the expectation that the maximum punishment he could receive
would be that provided for in the statute defining the present crime.” State v. Allen,
292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977) (quoting Harold Dubroff, Note,
Recidivist Procedures, 40 N.Y.U. L. Rev. 332, 348 (1965) [hereinafter Recidivist
Procedures]) (discussing the North Carolina Habitual Felons Act and noting, at 292
N.C. at 434, 233 S.E.2d at 587, the procedural similarities between that Act and the
provisions of N.C.G.S. § 15A-928).1 Secondly, the requirement set out in N.C.G.S.
§ 15A-928(a) and (b) that the defendant’s prior conviction be alleged in a special
indictment or information or in a separate count is intended to prevent “any prejudice
due to the introduction of evidence of prior convictions before the trier of guilt for the
1 This Court has stated, in dicta, that, “when [N.C.]G.S. § 15A-928 does apply, the
statute must be strictly followed.” Jackson, 306 N.C. at 652 n.2, 295 S.E.2d at 389 n.2. The
quoted statement was made in a case involving a special indictment alleging a prior
conviction that had been returned nearly two months after the indictment charging the
substantive offense. Id. at 652 n.2, 295 S.E.2d at 389 n.2. In stating that the indictment
charging the prior conviction or convictions “must be filed with the principal pleading,” id. at
652 n.2, 295 S.E.2d at 389 n.2, the Court was clearly referring to the notice-related concerns
sought to be addressed by N.C.G.S. § 15A-928.
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Opinion of the Court
present offense.” Id. at 435, 233 S.E.2d at 588 (quoting Recidivist Procedures at 348).
The separate indictment requirement operates to prevent such prejudice using the
procedures prescribed in N.C.G.S. § 15A-928(c), which requires the trial court, out of
the presence of the jury, to “arraign the defendant upon the special indictment or
information” after advising him or her that “he [or she] may admit the previous
conviction alleged, deny it, or remain silent,” N.C.G.S. § 15A-928(c) (2015), with an
admission of the prior conviction element sufficing to preclude the admission of
evidence concerning the defendant’s prior conviction before the jury, id. § 15A-
928(c)(1), and with a denial of the prior conviction element sufficing to authorize “the
State [to] prove that element of the offense charged before the jury as a part of its
case,” id. § 15A-928(c)(2).
An examination of the language in which N.C.G.S. § 15A-928 is couched and
the purposes sought to be achieved by N.C.G.S. § 15A-928 do not persuade us that
noncompliance with the relevant statutory provisions constitutes a jurisdictional
defect. Although the separate indictment provisions contained in N.C.G.S. § 15A-928
are couched in mandatory terms, that fact, standing alone, does not make them
jurisdictional in nature. Cf. House, 295 N.C. at 200-03, 244 S.E.2d at 660-62 (stating
that the word “must” or “shall” in a statute does not always “indicate a legislative
intent to make a provision of the statute mandatory, and a failure to observe it fatal
to the validity of the purported action” and holding that, though N.C.G.S. § 15A-
644(a)(5) directs that an indictment “must contain” the grand jury foreman’s
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Opinion of the Court
signature “attesting the concurrence of 12 or more grand jurors in the finding of a
true bill of indictment,” an indictment lacking the express statement that “12 or more
grand jurors concurred in such finding” was nevertheless valid “where the foreman’s
statement upon the bill is clearly so intended and there is nothing to indicate the
contrary.”). Similarly, the notice and prejudice-related purposes that underlie
N.C.G.S. § 15A-928 are not the sort of goals typically sought to be achieved by the
imposition of additional jurisdictional requirements over and above those otherwise
required. Although the provision of sufficient notice does appear to have
jurisdictional overtones, a defendant can obtain sufficient notice of the exact nature
of the charge that has been lodged against him or her through compliance with the
traditional facial validity requirements set out in N.C.G.S. § 15A-924(a)(5) without
the necessity for compliance with the separate indictment provisions of N.C.G.S.
§ 15A-928. Similarly, compliance with the separate indictment requirement set out
in N.C.G.S. § 15A-928 is not absolutely necessary to ensure the absence of prejudice
to defendant stemming from the disclosure of defendant’s prior convictions to the jury
given that defendant was separately arraigned on the prior conviction allegations in
this case as required by N.C.G.S. § 15A-928(c), admitted to the prior convictions, and
was convicted by a jury that had no knowledge of her prior larceny convictions. As a
result, a careful examination of the language in which N.C.G.S. § 15A-928 is couched,
coupled with an analysis of the purposes sought to be served by the enactment of the
relevant statutory language, persuades us that the separate indictment provision
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contained in N.C.G.S. § 15A-928 is not a jurisdictional issue that defendant was
entitled to raise on appeal without having lodged an appropriate objection or
otherwise sought relief on the basis of that claim before the trial court.2
In response to questions posed during oral argument, defendant asserted that
there were only two categories of indictment-related error—facial defects that
deprived the trial court of jurisdiction and errors for which no relief could be afforded
even if the alleged defect in the indictment was brought to the trial court’s attention
by objection, a motion to dismiss or quash, or otherwise. See, e.g., State v. Cheek, 307
N.C. 552, 555, 299 S.E.2d 633, 636 (1983) (rejecting the defendant’s argument that
the omission of “with force and arms” rendered a rape indictment fatally defective);
State v. Corbett, 307 N.C. 169, 173-75, 297 S.E.2d 553, 557-58 (1982) (same); State v.
Dudley, 182 N.C. 822, 825, 109 S.E. 63, 65 (1921) (stating that, while “[i]t may have
been the better form to have added to the bill that the alleged default was also
‘contrary to the statute in such case made and provided,’ but this, if it be a defect, is
one cured in express terms by our Statute of Jeofails”); State v. Sykes, 104 N.C. 694,
698-99, 10 S.E. 191, 192-93 (1889) (opining that “the grounds assigned in support of
the motion to quash are untenable” given that “it was not necessary that the affidavit
or warrant should conclude ‘against the statute’ ”); State v. Howard, 92 N.C. 772, 778
2 Although defendant asserts that similar language contained in the statutory
provisions governing the sentencing of habitual felons was held to be jurisdictional in State
v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 709-10 (1996), we do not understand Patton to
involve a jurisdictional holding.
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(1885) (holding that it was not necessary for an indictment for murder to allege that
the “prisoner, not having the fear of God before his eyes, but being moved and seduced
by the instigation of the devil” or that the “deceased was in the peace of God and the
State”).3 In advancing this argument, however, defendant has overlooked a third
category of indictment-related errors involving deficiencies that must be brought to
the trial court’s attention as a prerequisite for the assertion of that indictment-related
claim on appeal. See, e.g., State v. Green, 266 N.C. 785, 788-89, 147 S.E.2d 377, 379-
80 (1966) (per curiam) (stating that the defendant, “by going to trial on this warrant
without making a motion to quash, waived any duplicity in the warrant” (citing State
v. Best, 265 N.C. 477, 144 S.E.2d 416 (1965))); State v. Strouth, 266 N.C. 340, 342,
145 S.E.2d 852, 853 (1966) (observing that, “by going to trial without making a motion
to quash, defendant waived any duplicity in the warrant” (quoting Best, 265 N.C. at
481, 144 S.E.2d at 418)); State v. Merritt, 244 N.C. 687, 688, 94 S.E.2d 825, 826 (1956)
(stating that “[t]he defendant could have required separate counts, one charging
operation of a motor vehicle while under the influence of intoxicating liquor” and “the
other charging the operation while under the influence of narcotics,” but, “[b]y going
to trial without making a motion to quash, [the defendant] waived any duplicity
3 A number of the decisions cited at this point in the text rely upon N.C.G.S. § 15-155,
which is entitled “Defects which do not vitiate” and which provides, in pertinent part, that
“[n]o judgment upon any indictment for felony or misdemeanor . . . shall be stayed or reversed
for the want of the averment of any matter unnecessary to be proved, nor for omission of the
words . . . ‘with force and arms,’ . . . nor for omission of the words ‘against the form of the
statute’ or ‘against the form of the statutes.’ ”
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Opinion of the Court
which might exist in the bill” (citing multiple cases)). The Court of Appeals applied
a similar analysis in evaluating claims arising from noncompliance with the separate
indictment provisions of N.C.G.S. § 15A-928 in State v. Sullivan, 111 N.C. App. 441,
442, 432 S.E.2d. 376, 377 (1993), in which the defendant successfully filed a “motion
to strike the surplus language” from an indictment that violated the separate
pleading requirement set out in N.C.G.S. § 15A-928, and Stephens, 188 N.C. App. at
288, 293, 655 S.E.2d at 437, 440, in which the Court of Appeals upheld the trial court’s
decision to allow the State to amend an indictment in order to ensure compliance with
N.C.G.S. § 15A-928 by separating the substantive allegations from the allegations
concerning the defendant’s prior convictions. As a result, we hold that the claim that
defendant has sought to present on appeal in this case is similar to other sorts of
claims which, while not involving challenges to noncompliance with formalities that
have little practical purpose, do involve deviations from statutory requirements that
attempt to effectuate significant legislative policy goals and, for that reason, may well
support an award of appellate relief in appropriate cases in the event that those
claims are properly preserved for purposes of appellate review.
In this case, however, defendant 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. § 15A-928. For that reason, given that the claim that
she has presented for our consideration is not jurisdictional in nature, she is not
entitled to seek relief based upon that indictment-related deficiency for the first time
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Opinion of the Court
on appeal.4 As a result, we reverse the decision of the Court of Appeals and instruct
that court to reinstate the judgment of the trial court.
REVERSED.
For the reasons set forth in the text of this opinion, the Court of Appeals’ decision in
4
Williams, 153 N.C. App. 192, 568 S.E.2d 890, is also overruled.
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