State v. Newborn, 330PA21, ___ N.C. ___ (Jun. 16, 2023)

In this Haywood County case, the Supreme Court reversed a unanimous Court of Appeals decision and reinstated defendant’s conviction for possession of a firearm by a felon. 

In April of 2018, defendant was pulled over for driving with a permanently revoked license. During the stop, the officer smelled marijuana; defendant admitted that he had smoked marijuana earlier but none was in the vehicle. Based on the smell and defendant’s admission, the officer decided to search the vehicle, eventually discovering two firearms. Defendant was charged in a single indictment with possession of a firearm by a felon, possession of a firearm with an altered or removed serial number, and carrying a concealed weapon. At trial, defendant did not challenge the indictment, and he was ultimately convicted of all three offenses.

On appeal, defendant argued the indictment was fatally flawed, as G.S. 14-415.1(c) requires a separate indictment for possession of a firearm by a felon. The Court of Appeals agreed, vacating defendant’s conviction based on State v. Wilkins, 225 N.C. App. 492 (2013), and holding that the statute unambiguously mandates a separate indictment for the charge.

After granting discretionary review, the Supreme Court disagreed with the Court of Appeals, explaining that “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.’” Slip Op. at 6, quoting State v. Brady, 237 N.C. 675 (1953). The court pointed to its decision in State v. Brice, 370 N.C. 244 (2017), which held that failure to obtain a separate indictment required by a habitual offender statute was not a jurisdictional defect and did not render the indictment fatally defective. Applying the same reasoning to the current case, the court explained that “the statute’s separate indictment requirement is not jurisdictional, and failure to comply with the requirement does not render the indictment fatally defective.” Slip Op. at 9. The court explicitly stated that Wilkins was wrongly decided and specifically overruled. Id.

Justice Morgan dissented, and would have upheld the Court of Appeals opinion and the reasoning in Wilkinsfinding that the lack of a separate indictment required by G.S. 14-415.1(c) was a fatal defect. Id. at 11. 

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