State v. Baker ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-527
Filed: 18 December 2018
Pitt County, No. 16CRS50001
STATE OF NORTH CAROLINA
v.
SAMANTHA LEIGH BAKER, Defendant.
Appeal by State from order entered 27 November 2017 by Judge Marvin K.
Blount, III, in Pitt County Superior Court. Heard in the Court of Appeals 15
November 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde, for the State.
The Robinson Law Firm, P.A., by Leslie S. Robinson for Defendant-Appellee.
INMAN, Judge.
The State appeals from the superior court’s order dismissing misdemeanor
charges against Samantha Leigh Baker (“Defendant”) for lack of subject matter
jurisdiction. After careful review of the record and applicable law, we affirm the
superior court’s ruling that the State improperly circumvented district court
jurisdiction by simultaneously obtaining a presentment and indictment from a grand
jury, but we hold that the charges are not subject to dismissal. We affirm in part,
reverse in part, and remand.
STATE V. BAKER
Opinion of the Court
I. Factual and Procedural Background
The record reflects the following facts:
On 31 December 2015, Defendant was arrested and issued citations for
impaired driving and operating an overcrowded vehicle in Pitt County. After
Defendant’s initial hearing date in Pitt County District Court and before her case was
called for trial, Defendant was indicted by the Pitt County Grand Jury on both
misdemeanor counts and her case was transferred to Pitt County Superior Court.
In the wake of a decision by this Court holding that impaired driving citations
were insufficient to toll the two-year statute of limitations for prosecution of those
cases,1 the Pitt County District Attorney’s Office employed a novel and unusual
procedure to obtain grand jury presentments and indictments in pending impaired
driving cases. Legal assistants to prosecutors prepared presentments and
indictments identical in content, except for their titles (“PRESENTMENT” versus
“INDICTMENT”) and the description of the grand jury’s action in the foreman’s
signature block (“Bill of Presentment” versus “Bill of Indictment”). After a prosecutor
signed both the presentment and indictment for each impaired driving case, both
1Assistant District Attorney Phillip Entzminger—the prosecutor who signed the presentment
and indictment at issue—testified that the procedure was in response to a then-recent, but later struck
down, decision rendered by this Court. See State v. Turner, __ N.C. App __, __, 793 S.E.2d 287, 290
(2016) (holding that Section 15-1 of our General Statutes does not toll the two-year statute of
limitations for, inter alia, citations received for driving while impaired), rev’d by __ N.C. __, 817 S.E.2d
173 (2018).
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Opinion of the Court
documents were combined and placed in a folder for simultaneous delivery to the
grand jury.
At the start of the next superior court session in which the grand jury was
convened, the prosecutor delivered to a law enforcement officer in charge of the grand
jury, in open court, the folder containing all documents to be reviewed by the grand
jury in that session, including the substantially identical presentments and
indictments for impaired driving cases. When the arresting officer in each impaired
driving case came before the grand jury, the grand jury officer provided to the
testifying officer both the presentment and indictment for that case. As with all
grand jury proceedings, all the testimony and verbal exchanges before the grand jury
occurred behind closed doors and in secret, so no transcript is available of those
proceedings.
During its session on 27 February 2017, the grand jury considered the
presentment and indictment prepared and signed by the district attorney’s office
charging Defendant with impaired driving and operating an overcrowded vehicle, and
heard testimony from Officer C. Cordena, the officer who had arrested and initially
cited Defendant for those offenses.
At the end of the 27 February 2017 session, the grand jury foreman, escorted
by the grand jury officer, returned to the courtroom and presented to the presiding
judge the folder containing all the documents reviewed and returned by the grand
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Opinion of the Court
jury. After the judge reviewed the documents and confirmed in open court that each
had been signed by the grand jury foreman, they were filed with the clerk’s office.2
Defendant’s case was ultimately called for trial in Pitt County Superior Court.
Defendant filed a motion to dismiss her case for lack of subject matter jurisdiction
due to the constitutional and statutory invalidity of the presentment and indictment
procedure. After a hearing, the superior court on 27 November 2017 granted
Defendant’s motion, concluding that the district attorney’s office had violated
Sections 7A-271 and 15A-641 of our General Statutes and Defendant’s constitutional
rights. The State timely appealed.
II. Analysis
A. Standard of Review
The State argues that the superior court erred in concluding as a matter of law
that it was without jurisdiction to hear Defendant’s case. “Questions of subject
matter jurisdiction are reviewed de novo.” State v. Rogers, __ N.C. App. __, __, 808
S.E.2d 156, 162 (2017).
The State does not challenge any of the trial court’s findings of fact, so each of
those findings is binding on appeal. State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d
874, 878 (2011). Conclusions of law drawn from the findings of facts are reviewed de
novo. State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008). “Under a de
2 The grand jury proceedings took place from 10:01 am until 3:52 pm. In that time span, the
grand jury returned 286 true bills of indictments, 34 presentments, and one no true bill.
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Opinion of the Court
novo review, the court considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” Id. at 628, 669 S.E.2d at 294 (quotations
and citations omitted).
B. Presentment and Indictment
The district court is vested with exclusive jurisdiction for most misdemeanor
cases. N.C. Gen. Stat. § 7A-272(a) (2017). The superior court attains original
jurisdiction for misdemeanor actions only if, among other independent reasons, “the
charge is initiated by presentment.” N.C. Gen. Stat. § 7A-271(a)(2) (2017).
A presentment is a written accusation by a grand jury,
made on its own motion and filed with a superior court,
charging a person, or two or more persons jointly, with the
commission of one or more criminal offenses. A
presentment does not institute criminal proceedings
against any person, but the district attorney is obligated to
investigate the factual background of every presentment
returned in his district and to submit bills of indictment to
the grand jury dealing with the subject matter of any
presentments when it is appropriate to do so.
N.C. Gen. Stat. § 15A-641(c) (2017) (emphasis added). An indictment, by contrast,
“is a written accusation by a grand jury, filed with a superior court, charging a person
with the commission of one or more criminal offenses.” N.C. Gen. Stat. § 15A-641(a)
(2017). The plain language of Section 15A-641 precludes a grand jury from issuing a
presentment and indictment on the same charges absent an investigation by the
prosecutor following the presentment and prior to the indictment.
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Opinion of the Court
The State argues that Section 15A-641 conflicts with Section 15A-644,
requiring a contrary conclusion. Section 15A-644 provides that a valid presentment
“must contain everything required of an indictment” except that the statutory
requirement for the prosecutor’s signature “do[es] not apply.”3 N.C. Gen. Stat. § 15A-
644(c) (2017). An indictment must contain (1) the superior court’s name; (2) the title
of the action; (3) the criminal offense charged; (4) the prosecutor’s signature, though
its absence is not fatal; and (5) the grand jury foreman’s signature attesting the grand
jury’s unanimous concurrence. Id. § 15A-644(a). The State asserts that Section 15A-
644(c) governs the procedure for presentments, and that because the presentment
here meets all the requirements of Section 15A-644(c), it is valid.
The State further asserts that Section 15A-641(c) is merely a definitional
provision, intending to only parallel the common law definition of a presentment.
The State confuses the issue in this case. It is not the sufficiency of the
presentment form and contents that is at issue, but the presentment’s simultaneous
occurrence with the State’s indictment that makes both invalid. Also, contrary to the
State’s argument, the second sentence of Section 15A-641(c) does in fact dictate what
procedure must occur before an indictment can be provided. A valid presentment
instructs the prosecutor to perform an investigation, without an accompanying
3 Because we base our decision today on the timing of the presentment and the indictment, not
the substance of the presentment, we need not address the issue of whether a prosecutor’s signature
on a presentment form given to the grand jury violates Section 15A-644.
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Opinion of the Court
indictment, into suspected illegal activity. N.C. Gen. Stat. § 15A-641(c); State v.
Morris, 104 N.C. 837, 839, 10 S.E. 454, 455 (1889).4 This procedural requirement,
while also defining what a presentment is, was not followed in this case. Contrary to
the State’s argument, Sections 15A-644(c) and 15A-641(c) do not conflict with each
other. One merely defines what a presentment is and what it instructs, while the
other provides what an otherwise valid presentment must contain.
Section 15A-641 was “intended to set out the North Carolina common law
relating to the definitions of indictment . . . and presentment.” N.C. Gen. Stat. § 15A-
641 official commentary (2017). So, in addition to deriving our holding based on the
plain language of the statute, we consider the long history of case law regarding
presentments and indictments to interpret the statute.
The distinction between an indictment and a presentment dates as far back as
the 1776 Halifax Convention, the genesis of North Carolina’s Constitution. State v.
Thomas, 236 N.C. 454, 457, 73 S.E.2d 283, 285 (1952). Enshrined within Section 8 of
the Declaration of Rights, the 1776 Constitution provided that “no freeman shall be
put to answer any criminal charge, but by indictment, presentment, or
impeachment.” Id. at 457, 73 S.E.2d at 285 (quotations omitted). While North
Carolina’s Constitution was, in relevant part, adjusted in 1797, 1868, and again in
4 This decision was reprinted in 1920 as 104 N.C. 576.
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Opinion of the Court
1950, that delineation between presentment and indictment never wavered. Id. at
457, 73 S.E.2d at 285. Article I, Section 22 of our Constitution provides:
Except in misdemeanor cases initiated in the District
Court Division, no person shall be put to answer any
criminal charge but by indictment, presentment, or
impeachment. . . .
N.C. Const. art. I, § 22 (emphasis added). Historically, similar to the way the
terms are codified now in Section 15A-641, an indictment was referenced in the
“constitutional provision to signify a written accusation of a crime drawn up by the
public prosecuting attorney and submitted to the grand jury . . . as a true bill.”
Thomas, 236 N.C. at 457, 73 S.E.2d at 285. By contrast, a presentment was “an
accusation, made ex mero motu by a grand jury, of an offense, upon their own
observation and knowledge, or upon evidence before them, and without any bill of
indictment laid before them.” Morris, 104 N.C. at 839, 10 S.E. at 455 (emphasis
added). Some duration of time is required for the prosecutor to sufficiently
investigate the grand jury’s directive because the presentment must not stem from
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Opinion of the Court
“any bill of indictment [brought] before them.”5 Lewis v. Bd. of Comm’rs of Wake
Cnty., 74 N.C. 194, 197 (1876).6
While the grand jury acts of its own volition for presentments, it can still rely
“upon information from others,” including the prosecutor.7 Thomas, 236 N.C. at 457,
73 S.E.2d at 285; see N.C. Gen. Stat. § 15A-628(a)(4) (2017) (“An investigation may
be initiated upon the concurrence of 12 members of the grand jury itself or upon the
request of the presiding or convening judge or the prosecutor.”); see also State v.
Gunter, 111 N.C. App. 621, 625, 433 S.E.2d 191, 193 (1993) (“[T]he district attorney
presented information to the grand jury regarding the offense, and the grand jury
issued the presentment[.]”).
Since 1797, presentments have not initiated criminal charges; rather, a
presentment is “nothing more than an instruction by the grand jury to the public
prosecuting attorney to frame a bill of indictment” to submit back to them. State v.
5 For the first time on appeal, during oral argument, the State asserted that in State v. Cole,
294 N.C. 304, 240 S.E.2d 355 (1978), the North Carolina Supreme Court held that an indictment issued
on the same day as a presentment was valid. Cole is readily distinguishable in fact and law. The
defendant in Cole was tried originally in the district court in 18 December 1974 and only went to the
superior court on appeal. So Cole was not a case in which the superior court had original jurisdiction.
While Defendant’s appeal was pending in superior court, the grand jury returned a presentment and
the district attorney’s office issued an indictment on the same day, though the decision does not state
whether the presentment and indictment occurred simultaneously. Contrary to the State’s rendition,
Cole held that an indictment language must only contain the “same factual subject matter” initiated
by the presentment; that decision did not address the temporal context of the presentment and
indictment. Id. at 309, 240 S.E.2d at 358.
6 This decision was reprinted in 1957 as 74 N.C. 156.
7 We agree with the State that the prosecutor did not violate Section 15A-628(a)(4) or the
common law practice of furnishing information to the grand jury—in the guise of the presentment
form and Officer Cordena’s private grand jury testimony—in order to facilitate its investigation.
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Wall, 271 N.C. 675, 682, 157 S.E.2d 363, 368 (1967) (quotations and citation omitted).
If the delivery of an indictment were not preceded by a factual investigation by the
prosecutor after the return of a presentment, then the presentment, in and of itself,
would institute criminal proceedings. See State v. Guilford, 49 N.C. (4 Jones) 83, 86
(1856) (noting that, prior to 1797, grand jury presentments “were frequently so
informal” that they oppressed citizens who “had committed no violation of the public
law”). A presentment returned simultaneously with an indictment would not be from
the grand jury’s “own knowledge or observation,” or “upon information from others,”
but by the direct endorsement of the prosecutor. Thomas, 236 N.C. at 457, 73 S.E.2d
at 285.
For all of these reasons, we are unpersuaded by the State’s argument that the
simultaneous submission to, and return of, both a presentment and an indictment in
a misdemeanor case could confer jurisdiction on the superior court.
Here, the trial court found that the prosecutor “did not investigate the factual
background of the Presentment after it was returned and before the Grand Jury
considered the Indictment” of Defendant on the misdemeanor charges. Instead, “the
prosecutor’s office reviewed the case file prior to the preparation of the Presentment
and Indictment.” Because the prosecutor submitted these documents to the grand
jury simultaneously and they were returned by the grand jury simultaneously, in
contravention of Section 15A-641(c), we hold that each was rendered invalid as a
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Opinion of the Court
matter of law. Because the presentment and indictment were invalid, we affirm the
superior court’s ruling that it did not have subject matter jurisdiction.
C. Constitutional Issues
The trial court also concluded that Defendant’s North Carolina constitutional
rights were violated pursuant to Article I, Sections 19, 22, and 23 of our Constitution.
The State and Defendant agree on appeal that only Article I, Section 22 is implicated
in this case.
Article I, Section 22 provides:
Except in misdemeanor cases initiated in the District
Court Division, no person shall be put to answer any
criminal charge but by indictment, presentment, or
impeachment. But any person, when represented by
counsel, may, under such regulations as the General
Assembly shall prescribe, waive indictment in noncapital
cases.
N.C. Const. art. I, § 22. Defendant contends she was “put to answer” for her criminal
charges by the invalid presentment and indictment. As discussed supra, the
presentment and indictment were invalid because they were issued and returned in
violation of Sections 7A-271 and 15A-641. As a result of the State’s improper
prosecution in superior court, Defendant had to appear in that court to seek dismissal
of the prosecution and had to appear before this Court following the State’s appeal.
Although we affirm the trial court’s conclusion of law that the superior court
prosecution violated Defendant’s right pursuant to Article I, Section 22, we need not
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Opinion of the Court
determine whether Defendant was prejudiced by the State’s violation of her North
Carolina constitutional right and do not address that issue.
D. Dismissal Versus Remand to District Court
The State, pursuant to authorities submitted supplemental to its briefs and in
oral argument, contends that if this Court holds the superior court was without
jurisdiction, the proper remedy is not dismissal but remand to the district court for
proceedings commenced by Defendant’s initial misdemeanor citations. We agree.
Section 7A-271(c) provides that the superior court, if it does not have
jurisdiction pursuant to Section 7A-721(a), must “transfer[] to the district court any
pending misdemeanor.” N.C. Gen. Stat. § 7A-271(c) (2017). Accordingly, rather than
affirming the trial court’s order of dismissal, we remand to the superior court to enter
an order transferring Defendant’s case to the district court in Pitt County.
We acknowledge and distinguish this Court’s recent decision in State v. Cole,
__ N.C. App. __, __ S.E.2d __ (2018) (No. COA18-286). In Cole, Defendant was
initially prosecuted, tried, and ultimately found guilty of driving while impaired in
superior court. The superior court held concurrent jurisdiction with the district court
when the grand jury issued a presentment and then, five days later, an indictment
charging the defendant with impaired driving, and then exercised its jurisdiction
when the case went to trial. Id. at __, __ S.E.2d at __; see Gunter, 111 N.C. App. at
624, 433 S.E.2d at 193 (holding that Section 7A-271(a)(2) grants the superior court
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Opinion of the Court
the ability to acquire jurisdiction of a case already pending in district court). On
appeal, the defendant argued that his pretrial motion to dismiss should have been
granted because “the State never dismissed the citation in district court,” which was
still active and pending. Cole, __ N.C. App. at __, __ S.E.2d at __. During the motion
to dismiss hearing, the State admitted that there was no longer a pending district
court case against the defendant. Id. at __, __ S.E.2d at __. We held that (1) “[d]espite
the State’s failure to dismiss the citation in district court, it made clear it had
abandoned its prosecution in district court” in favor of the superior court, serving as
a “functional equivalent of a dismissal;” and (2) once jeopardy attached in the superior
court, the State was precluded from bringing the case a second time in the district
court. Id. at __, __ S.E.2d at __.
The superior court and district court can under certain circumstances retain
concurrent jurisdiction in a criminal matter. However, when this happens, “the court
first exercising jurisdiction in a particular prosecution obtains jurisdiction to the
exclusion of the other. But when it enters a nolle prosequi it loses jurisdiction and
the other court may proceed.” State v. Karbas, 28 N.C. App. 372, 374, 221 S.E.2d 98,
100 (1976).
In Cole, there was “no record evidence suggesting the district court exercised
its jurisdiction over the offense after the existence of concurrent jurisdiction with the
superior court.” Cole, __ N.C. App. at __, __ S.E.2d at __. Additionally, the prosecutor
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Opinion of the Court
in Cole made an express statement on the record that there was no longer a pending
district court case because it was “super[s]eded” by the superior court indictment. Id.at __, __ S.E.2d at __. Unlike in Cole, the superior court in this case failed to attain
jurisdiction over Defendant and the prosecutor made clear that the district court case
was “never dismissed.” Because the superior court was unable to exercise any
jurisdiction, let alone to the exclusion of the district court, Cole’s holding that the
State functionally dismissed the prosecution in district court once the superior court
exercised exclusive jurisdiction is inapposite. Furthermore, jeopardy never attached
against Defendant because the superior court determined it lacked jurisdiction.
In sum, Section 7A-271(c) instructs the trial court to transfer the misdemeanor
charge to the district court when Section 7A-271(a) cannot be met. While Cole holds
that the State implicitly abandons its prosecution in district court when it proceeds
to trial in superior court and acknowledges its intent on the record not to proceed in
district court, it does not apply here where the superior court failed to even exercise
jurisdiction. Thus, the district court still has authority to exercise jurisdiction over
Defendant’s case and, upon remand, should be transferred thereto.
III. Conclusion
We hold that the trial court did not err in concluding that it was without
jurisdiction to hear Defendant’s case because the presentment and indictment were
improperly obtained and were thus invalid. We affirm the trial court’s ruling that
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Opinion of the Court
the prosecution violated Sections 7A-271 and 15A-641 of our General Statutes and
Article I, Section 22 of the North Carolina Constitution. We do not address whether
Defendant was prejudiced by the State’s violation of her North Carolina
constitutional right.
We hold that the trial court erred in holding that the State violated
Defendant’s rights provided by Article I, Sections 19 and 23 of the North Carolina
Constitution. We also hold that the trial court erred in dismissing the case, rather
than transferring it to the district court upon the finding of a lack of jurisdiction.
AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER
PROCEEDINGS.
Judges TYSON and ARROWOOD concur.
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