Singleton was supposed to make things simpler. As previously reported, in that case our Supreme Court attempted to eliminate some “obsolete technicalities” of the common law by abrogating the jurisdictional indictment rule, whereby a defective pleading deprives the trial court of jurisdiction. My colleague Danny Spiegel called it a sea change. The Court of Appeals decided two cases in September that illustrate continuing complexity in this area. In State v. Pierce, COA23-348 (N.C. Ct. App. Sept. 3, 2024), the court held the trial court did not lack jurisdiction to accept a pro se defendant’s waiver of indictment, despite a statutory prohibition on such uncounseled waiver. And in State v. Wilkins, COA23-839 (N.C. Ct. App. Sept. 17, 2024), the court found the trial court lacked jurisdiction due to a fatally defective indictment. This post considers those two cases.
State v. Pierce
Constitutional provisions entitling a criminal defendant to indictment were meant as a safeguard against abusive prosecution. See United States v. Calandra, 414 U.S. 338, 343 (1974). Hence, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment. N.C. Const. Art. I, § 22. Practically, indictment is the only way to charge a felony. See G.S. 15A-923(a) (presentment is not a pleading). “But any person, when represented by counsel, may, under such regulations as the General Assembly shall prescribe, waive indictment in noncapital cases.” N.C. Const. Art. I, § 22. The first sentence dates from the North Carolina Constitution of 1776; the second was added by amendment in 1950. Limiting the availability of waiver to those represented by counsel “seeks to guarantee that no procedural advantage is lost without proper advice.” John V. Orth & Paul Martin Newby, The North Carolina State Constitution, 76 (2nd ed. Oxford 2013).
By statute, indictment may not be waived in a capital case or in a case where the defendant is not represented by counsel. G.S. 15A-642(b). Waiver of indictment must be in writing, signed by the defendant and his attorney, and attached to or executed upon the bill of information. Id. at (c). Originating in 1951, these regulations were enacted to effectuate the constitutional provision regarding waiver of the right to grand jury indictment. See State v. Thomas, 236 N.C. 454, 458 (1952) (citing G.S. 15-140.1).
The regulations have been treated as jurisdictional. When a defendant not properly represented by counsel purported to waive indictment, the resulting judgment was vacated on appeal. See State v. Hayes, 261 N.C. 648, 650 (1964) (defense counsel assigned by the prosecutor was not sufficient); State v. Daniel, 19 N.C. App. 313, 314 (1973) (pro se defendant cannot waive indictment). Further, jurisdiction generally may not be conferred by consent. State v. Singleton, 386 N.C. 183, 201 (2024). Accordingly, a defendant’s failure to object – even his acquiescence in the error – has not precluded an award of relief. See State v. Kelso, 187 N.C. App. 718, 724 (2007) (rejecting argument that defendant invited error by requesting unsupported charge); State v. Wilson, 128 N.C. App. 688, 691 (1998) (same).
The defendant in State v. Pierce, No. COA23-348 (N.C. Ct. App. Sept. 3, 2024), was indicted for statutory rape, kidnapping, and indecent liberties in February 2017. He elected to proceed pro se. In June 2021, the defendant waived indictment, and he was charged by bill of information with two other crimes: the crime against nature and sexual battery. The defendant then pled guilty to the two crimes charged by information, i.e., crimes for which he had not been indicted. Pierce, Slip Op. at 1-2.
Before the Court of Appeals, the defendant argued the trial court lacked jurisdiction as he was not represented by counsel when he waived indictment, in violation of G.S. 15A-642. The Court of Appeals noted that the defendant had been provided with five court-appointed attorneys, and that he knowingly and voluntarily exercised his right to proceed pro se. Pierce, Slip Op. at 1. It found this fact distinguished the defendant’s case from those precedents applying G.S. 15A-642 upon which he relied. See State v. Futrelle, 266 N.C. App. 207, 208 (2019) (waiver was invalid when it was not signed by defense counsel); State v. Nixon, 263 N.C. App. 676, 680 (2019) (waiver was invalid when it was not attached to or executed upon bill of indictment); State v. Brown, 21 N.C. App. 87, 88 (1974) (trial court lacked jurisdiction to accept plea to unindicted felony).
According to the Court of Appeals “no precedent holds a Waiver of Indictment was invalidated when a defendant insisted on proceeding pro se.” Pierce, Slip Op. at 7; but see Daniel, 19 N.C. App. at 314. Though the plain language of G.S. 15A-642 protects those unrepresented by counsel, it said, the defendant here “knowingly and voluntarily waived and refused the assistance” of counsel. Pierce, Slip Op. at 7. Observing that the defendant’s “purported conflicts” with counsel “delayed the trial for years,” the Court of Appeals overruled the defendant’s argument that the trial court lacked jurisdiction. Id. at 8-9. Alternatively, and again noting the defendant was represented by multiple attorneys and insisted upon representing himself, the Court of Appeals found that any purported error in allowing the defendant to waive indictment pro se was invited by the defendant. Pierce, Slip Op. at 9-10. Hence, the trial court did not lack jurisdiction to enter judgment.
State v. Wilkins
The old rule – prior to Singleton – was that a defective indictment deprives the trial court of jurisdiction. See State v. Rankin, 371 N.C. 885, 895 (2018). Such a defect occurred when, for example, an indictment failed to allege an essential element of the offense. Id. at 897. By statute, a criminal pleading must contain a plain and concise factual statement that asserts facts supporting every element of the offense charged. G.S. 15A-924(a)(5). The extent to which this statutory requirement reflected the common law rule is disputed. Compare State v. Lancaster, 385 N.C. 459, 469 (2023) (rule does not require rote recitation of the elements); with State v. Banks, 263 N.C. 784, 785, 140 S.E.2d 318, 319 (1965) (indictment must allege elements “lucidly and accurately”).
Obstruction of justice is a common law offense, that is, a crime recognized by no statute. In re Kivett, 309 N.C. 635, 670 (1983). At common law it was an offense to do any act which prevents, obstructs, impedes or hinders public or legal justice. Id. If common law obstruction of justice is done with deceit and intent to defraud, it becomes a felony. G.S. 14-3(b). Hence, the elements of felony obstruction of justice are: (1) the defendant unlawfully and feloniously, (2) obstructed justice, (3) with deceit and intent to defraud. State v. Ditenhafer, 373 N.C. 116, 128 (2019). The existence of an ongoing criminal investigation or legal proceeding is not required in order to establish an obstruction of justice. It is sufficient to show that the defendant’s conduct blocked or forestalled such an investigation. State v. Wright, 206 N.C. App. 239, 243-44 (2010).
State v. Coffey, 292 N.C. App. 463 (2024), predates Singleton. The defendant in Coffey, a firearm instructor, certified the attendance of the elected sheriff and his chief deputy at mandatory training that neither had attended. Id. at 464. The defendant was indicted for obstruction of justice. Id. at 465. Each indictment alleged that the defendant, with deceit and intent to defraud, did commit obstruction of justice by knowingly providing false and misleading information in training records. Id. The defendant was convicted by a jury and appealed. Upon review, the Court of Appeals found the indictments fatally defective. “[T]here are no facts asserted,” it said, that the defendant’s actions “were done to subvert a potential subsequent investigation or legal proceeding.” Id. at 471. As such, the indictments failed to allege each element, and the trial court lacked jurisdiction.
In State v. Wilkins, No. COA 23-839 (N.C. Ct. App. Sept. 17, 2024), the Court of Appeals relied on its precedent in Coffey. The defendant in Wilkins was an elected sheriff. Wilkins, Slip Op. at 1. Between 2013 and 2019, the defendant reported that he had completed in-service training and firearms qualification classes that he had not actually attended. Id. at 2-3. The defendant was indicted for obstruction of justice. Id. at 3. He was convicted by a jury and appealed. Id.
Upon review, the Court of Appeals found the defendant’s indictment for obstruction of justice indistinguishable from those it had found defective in Coffey. Wilkins, Slip Op. p. 11. The indictment does not allege, it observed, that the defendant’s wrongful acts “were done to subvert a potential investigation or legal proceeding.” Id. It concluded that the indictment “fails entirely” to charge the defendant with a criminal offense. Id. In a footnote, the Court of Appeals acknowledged the North Carolina Supreme Court’s intervening opinion in Singleton, holding that a mere pleading deficiency does not deprive the trial court of jurisdiction. Id. at 11 n.2. The Court of Appeals said the indictment in Wilkins, however, “does not allege conduct that could be understood to constitute common law obstruction of justice and therefore fails entirely to allege a criminal act, creating a jurisdictional defect.” Id. In other words, “Coffey remains binding precedent upon this Court.” Id.
Conclusion
Cases where an indictment wholly fails to allege a crime were supposed to be rare. Singleton, 386 N.C. at 188 n.4. Singleton provided as examples an indictment that alleged noncriminal conduct, such as wearing pink on Wednesday, or that charged a crime committed in another state. Id. at 205-06. Singleton distinguished such jurisdictional defects from mere pleading deficiencies, such as a failure to asserts facts supporting every element of the offense. Id. at 205.
Within six months, however, the Court of Appeals found such a rarity in Wilkins. Though the indictment in that case alleged all the elements prescribed by Ditenhafer, it omitted the requisite mens rea as prescribed by Coffey and thus “failed entirely” – according to the Court of Appeals – to allege a criminal act. It is not easy to reconcile the result in Wilkins with the sea change wrought by Singleton. Is an indictment that alleges obstruction of justice with intent to defraud comparable to one that charges wearing pink on Wednesday? Significantly, the North Carolina Supreme Court has stayed the opinion in Wilkins, a step that generally heralds consideration of a petition for discretionary review.
By contrast, Pierce makes no mention of Singleton, but its shadow lies heavily over the case. Indeed, the Court of Appeals there likewise seems to dispense with jurisdictional rules of long standing. But Singleton dealt only with textual problems, irregularities within the four corners of a pleading. It did not attempt to reform the established procedure for waiver of indictment. The defendant in Pierce through counsel has filed a petition for discretionary review with our Supreme Court.
Together, Pierce and Wilkins complicate Singleton’s program of eliminating indictment technicalities. Singleton advised prosecutors to comply with prescribed forms, though it seemed to offer little in the way of incentive to do so. Singleton, 386 N.C. at 210 (abrogation of common law rule does not relieve the State of its duty to draft indictments properly). Wilkins does. If Coffey survives Singleton, perhaps other cases recognizing fatal defects in criminal pleadings do too. If so, indictments that wholly fail to allege a criminal offense might not be as rare as imagined.
The takeaway from Pierce is harder to ascertain. It would not be advisable for a prosecutor to disregard the plain language of a statute, notwithstanding the affirmance of the judgment in Pierce. To the extent the Court of Appeals there found the spirit if not the letter of G.S. 15A-642 satisfied, it offered little in the way of guidance. If five rejected attorneys is too many, what about four? What about two? The savvy prosecutor will continue to use the prescribed forms for indictments, keeping Singleton in reserve in case of mistakes. At the same time, he or she will not solicit a waiver of indictment from an unrepresented defendant, regardless of how obstreperously the defendant insists on exercising his constitutional right to proceed pro se.
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