Newby, Morgan square off in felon firearm case at NC Supreme Court

The two most senior members of North Carolina’s Supreme Court took opposite stands Friday in a case involving a felon convicted of illegal gun possession. In a 4-2 decision, the court decided that an error with the indictment in the case would not lead to a new trial.

The decision reversed a 2021 ruling from the N.C. Court of Appeals.

Based on a 2018 traffic stop, Haywood County authorities used a single indictment to charge Cordero Deon Newborn with firearm possession by a felon and two other charges.

A jury convicted Newborn on all three charges. He appealed based on a state law, N.C.G.S. § 14-415.1(c), that requires a separate indictment for cases of felon firearm possession.

Appellate judges agreed with Newborn and threw out the conviction for possessing a firearm as a felon. The state appealed that ruling to North Carolina’s highest court.

Chief Justice Paul Newby wrote the majority opinion Friday, representing the four Republican justices taking part in the case. (Justice Richard Dietz recused himself from State v. Newborn.)

Newby framed the case as determining whether the single indictment was “fatally defective.” “The Court of Appeals vacated defendant’s conviction for possession of a firearm by a felon because the State failed to obtain a separate indictment for that offense under the unambiguous, mandatory language of N.C.G.S. § 14-415.1(c),” Newby wrote. “This Court’s well-established precedent provides, however, that a violation of a mandatory separate indictment provision is not fatally defective.”

“We follow our long-standing principle of substance over form when analyzing the sufficiency of an indictment,” Newby added. “Because the indictment here alleged facts to support the essential elements of the crimes with which defendant was charged such that defendant had sufficient notice to prepare his defense, the indictment is valid.”

Newby conceded that the indictment of Newborn “fails to comply with the mandatory separate indictment provision” spelled out in state law. Citing a precedent case from 2017, State v. Brice, the chief justice labeled the defect “a ‘mere informality’ that does not ‘affect the merits of the case.’”

“Applying the principle of substance over form, it is clear that the indictment here gave defendant sufficient notice of the crimes with which he was being charged such that he was able to prepare his defense,” Newby wrote. “Moreover, the State’s failure to obtain a separate indictment for the possession of a firearm by a felon offense did not prejudice defendant because the indictment sufficiently alleged facts supporting the essential elements of the crimes with which defendant was charged.”

“Therefore, we hold that although the statute here is ‘couched in mandatory terms,’ the statute’s separate indictment requirement is not jurisdictional, and failure to comply with the requirement does not render the indictment fatally defective,” the chief justice concluded.

Senior Associate Justice Michael Morgan wrote a dissent for the high court’s two Democrats. “[T]he reasoning of the majority is fatally defective itself through the majority’s unconvincing departure from this Court’s entrenched principles governing proper statutory interpretation and the majority’s exacerbation of this flawed preface through its misunderstanding of the applicable appellate caselaw precedent,” he wrote.

“All three of defendant’s charges were lodged in a sole indictment. The combination of defendant’s charged offense of possession of a firearm by a felon with the other two charged offenses constituted an obvious lack of the State’s compliance with the unequivocal mandate of N.C.G.S. § 14-415.1(c),” Morgan explained.

“In the instant case, it is evident that the indictment was defective in that it did not conform with the statute’s clear and unambiguous language which must be given its plain and definite meaning,” Morgan wrote.

Morgan would have affirmed the Appeals Court’s decision to throw out Newborn’s conviction on the charge of possession of a firearm by a felon.

“Despite the clear and unambiguous language of N.C.G.S. § 14-415.1(c) which requires a separate indictment for the offense of possession of a firearm by a felon, nonetheless the majority has sadly opted to forsake a rudimentary principle easily understood in legal circles; namely, with regard to statutory interpretation, to ascribe to words their plain and simple meaning,” he wrote.

“However, the majority chose to build upon this faulty foundation by not merely ignoring basic rules of statutory construction but also by trampling upon our stated principle … that the courts ‘are without power to interpolate, or superimpose, provisions and limitations not contained’ in statutes with operative words which have a plain and definite meaning,” Morgan added. “Yet here, the majority has decided to grant itself a dispensation in order to depart from this cardinal principle as well, opting to create such authority for itself.”

 The majority decision “signals a precarious uncertainty for the reliability of statutory interpretation, the sanctity of legal precedent, and the stability of the area of criminal law,” Morgan argued.

The senior associate justice chided colleagues for overturning the Appeals Court decision.

“While this Court is not bound by decisions of the Court of Appeals, I deem it to be much more fathomable to implement a solid outcome rendered by the lower appellate court which is based upon well-reasoned analysis spawned by well-established principles that are rooted in directly relevant law rather than to manufacture a shallow outcome which is based upon an ill-fitting analysis driven by unbridled approaches that are rooted in conveniently available opportunities.”

With Friday’s ruling, Newborn’s conviction stands.