Prosecutors Beware: State v. Newborn Provides a Word of Caution for Felon In Possession Indictments

Author's Note:  The opinion discussed below was reversed by the North Carolina Supreme Court in State v. Newborn, 330PA21, ___ N.C. ___ (June 16, 2023). The North Carolina Supreme Court's opinion is discussed here.  The first sentence of State v. Newborn, ___ N.C. App. ___, 2021-NCCOA-426 (Aug. 17, 2021) sums up the issue:  “When the charge of possession of a firearm by a felon is brought in an indictment containing other related offenses, the indictment for that charge is rendered fatally defective and invalid, thereby depriving a trial court of jurisdiction over it.” Even after I read it that straightforward statement, I questioned my understanding. This rule struck me as inconsistent with recent caselaw holding that the violation of statutory pleading rules for prior convictions does not deprive the trial court of jurisdiction. See State v. Brice, 370 N.C. 244 (2017). But (ipso facto) that is the rule for felon in possession indictments, which prosecutors ignore at the case’s peril. State v. Newborn. An officer stopped Cordero Newborn while he was driving on Highway 19 in Haywood County for driving with a revoked license. The officer smelled marijuana and searched the vehicle, discovering a pistol between the center console panel and carpeting. Newborn subsequently was indicted for possession of firearm by a convicted felon in violation of G.S. 14-415.1, possession of a firearm with an altered/removed serial number in violation of G.S. 14-160.2(b), and carrying a concealed weapon in violation of G.S. 14-269(a). In a separate indictment, Newborn was charged with attaining [...]