Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
Smith's Criminal Case Compendium
About
This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
Instructions
Navigate using the table of contents to the left or by using the search box below. Use quotations for an exact phrase search. A search for multiple terms without quotations functions as an “or” search. Not sure where to start? The 5 minute video tutorial offers a guided tour of main features – Launch Tutorial (opens in new tab).
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Discharging Weapon Into Property
An indictment charging the defendant with discharging a weapon into an occupied dwelling was not fatally defective. The defendant argued that the indictment was defective because it charged him with discharging a weapon into occupied property causing serious bodily injury, but failed to allege that any injury resulted from the act. The court noted that the defendant’s argument was based on the indictment’s reference to G.S. 14-34.1(c) as the statute violated. However, a statutory reference in an indictment is surplusage and can be disregarded. Moreover, the body of the indictment charges the defendant with the version of the offense for which he was convicted, which does not require serious injury.
The State conceded, and the court held, that the indictment was insufficient to support a conviction for discharging a firearm within an enclosure to incite fear. The indictment improperly alleged that the defendant discharged a firearm “into” an occupied structure; the statute, G.S. 14-34.10, requires that the defendant discharge a firearm “within” an occupied building.
An indictment charging discharging a firearm into an occupied dwelling was not defective. The indictment alleged that the defendant “discharge[d] a firearm to wit: a pistol into an apartment 1727 Clemson Court, Kannapolis, NC at the time the apartment was occupied by Michael Fezza” and that the defendant violated G.S. 14-34. The defendant was convicted of discharging a weapon into an occupied dwelling in violation of G.S. 14-34.1. The court rejected the defendant’s argument that the term “apartment,” as used in the indictment, was not synonymous with the term “dwelling,” the term used in the statute. On this issue the court stated: “We refuse to subject defendant’s … indictment to hyper technical scrutiny with respect to form.” Next, the court held that although the indictment incorrectly referenced G.S. 14-34 instead of G.S. 14-34.1(b), the error was not a fatal defect.
The trial court erred by instructing the jury on the offense of discharging a firearm into a vehicle that is in operation under G.S. 14-34.1(b) where the indictment failed to allege that the vehicle was in operation. However, because the indictment properly charged discharging a firearm into an occupied vehicle under G.S. 14-34.1(a), the court vacated the conviction under G.S. 14-34.1(b) and remanded for entry of judgment under G.S. 14-34.1(a).
Fact that indictment charging discharging a barreled weapon into an occupied dwelling used the term “residence” instead of the statutory term “dwelling” did not result in a lack of notice to the defendant as to the relevant charge.