# State v. Lytch

> Court of Appeals of North Carolina · April 3, 2001 · 142 N.C. App. 576

URL: https://www.frixlaw.com/law-library/cases/9846824

## Case

- **Full name:** State of North Carolina v. Ricky C. Lytch
- **Court:** Court of Appeals of North Carolina
- **Decided:** April 3, 2001
- **Citations:** 142 N.C. App. 576; 544 S.E.2d 570; 2001 N.C. App. LEXIS 188
- **Precedential status:** Published
- **Opinion:** Concurrence by Greene
- **Judges:** McCullough, Greene, Hudson
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9846824

## Opinion text

GREENE, Judge,
concurring.
Defendant argues the short-form murder indictment by which defendant was indicted in this case violates his due process rights under the United States Constitution. I acknowledge this Court is bound by our Supreme Court’s decision in State v. Wallace, 351 N.C. 481, 504-08 , 528 S.E.2d 326, 341-43 , cert. denied,-U.S. -, 148 L. Ed. 2d 498 (2000), holding the short-form murder indictment is *587 constitutional. I write separately to nevertheless state my continued belief that the short-form murder indictment does not comply with the requirements of due process and the right to notice under the Sixth Amendment of the United States Constitution. See State v. Riley, 137 N.C. App. 403, 416-17 , 528 S.E.2d 590, 599 (Greene, J., dissenting), dis c. review denied and cert. denied, 352 N.C. 596 ,-S.E.2d-(2000), cer t. denied,-U.S.-, 148 L. Ed. 2d 681 (2001). Premeditation and deliberation are elements of first-degree murder in North Carolina. State v. Hamby and State v. Chandler, 276 N.C. 674, 678 , 174 S.E.2d 385, 387 (1970), death sentence vacated on other grounds, 408 U.S. 937 , 33 L. Ed. 2d 754 (1972). As the short-form murder indictment does not include the elements of premeditation and deliberation, N.C.G.S. § 15-144 (1999), the short-form murder indictment does not charge each element of the offense and, thus, is unconstitutional, see Jones v. United States, 526 U.S. 227, 232 , 243 n.6, 143 L. Ed. 2d 311, 319 , 326 n.6 (1999) (holding that when a “fact is an element of an offense rather than a sentencing consideration,” it must be “charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt”); Hamling v. United States, 418 U.S. 87, 117 , 41 L. Ed. 2d 590, 620 (1974) (indictment must contain elements of offense charged).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9846824. Public record. Not legal advice.