State law says an indictment against a felon accused of illegal gun possession must be separated from any other indictment. The language is clear.
If prosecutors combine a felon gun possession charge with other crimes in a single indictment, then, you might expect judges to toss out a conviction.
Not so fast.
In the recent case State v. Newborn, a 4-2 majority of the N.C. Supreme Court upheld a conviction of felon firearm possession, despite the fact that the indictment included two other alleged crimes.
The high court’s decision reversed a ruling from the N.C. Court of Appeals. Chief Justice Paul Newby explained why.
“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.”
An April 2018 traffic stop in Maggie Valley led to the criminal case against Cordero Deon Newborn. In August 2018 authorities indicted Newborn on charges of possession of a firearm by a felon, possession of a firearm with an altered or removed serial number, and carrying a concealed weapon. Newborn never challenged the indictment before the trial judge. A jury found him guilty of all three charges.
“Generally, the purpose of an indictment is to put the defendant on notice of the crime being charged and to protect the defendant from double jeopardy,” Newby wrote. “[O]btaining a separate indictment under N.C.G.S. § 14-415.1(c) ‘is not absolutely necessary to ensure the absence of prejudice to defendant.’”
“Moreover, it is well-established that a court should not quash an indictment due to a defect concerning a ‘mere informality’ that does not ‘affect the merits of the case,’” Newby added.
The chief justice cited a 1978 state Supreme Court precedent, State v. House. It said “that to quash an indictment because of an informality would ‘paramount mere form over substance,’ which this Court explicitly declined to do.”
“This Court in House further explained the principle of substance over form, stating that ‘provisions which are a mere matter of form, or which are not material, do not affect any substantial right, and do not relate to the essence of the thing to be done … are considered to be directory,’” Newby explained. “In other words, failure to comply with statutory requirements regarding the form of an indictment rather than its substance is not prejudicial to a defendant.”
A 2017 case, State v. Brice, applied the “substance over form” principle to a different state law dealing with indictments. “In that case this Court held that a similar special indictment statute for habitual offender crimes was not jurisdictional in nature, and a failure to obtain a separate indictment did not deprive the trial court of jurisdiction,” Newby wrote.
A “jurisdictional defect” would have prevented a trial judge from dealing with a charge based on an indictment that didn’t comply with the letter of the law.
“This Court’s decision in Brice held that failure to comply with a separate indictment provision is a mere informality that does not render an indictment fatally defective,” Newby argued.
The state Supreme Court’s majority relied on the House and Brice precedents to decide Newborn’s 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.”
The court’s two Democratic justices disagreed. Newby’s argument was “fatally defective itself,” wrote Justice Michael Morgan in dissent. “Despite the clear and unambiguous language of N.C.G.S. § 14-415.1(c), … 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.
Regardless of Morgan’s objections, Newby’s defense of “substance over form” is likely to guide N.C. courts moving forward.
Mitch Kokai is senior political analyst for the John Locke Foundation.