State v. Riley

*416 Judge Greene

dissenting.

I disagree with the majority that defendant’s motion for appropriate relief should be denied, and, therefore, I respectfully dissent.

Procedural Issue

North Carolina General Statute section 15A-1419 provides a motion for appropriate relief must be denied if “[u]pon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so.” N.C.G.S. § 15A-1419(a)(3) (1999). The statute, however, creates an exception to this rule when “failure to consider the defendant’s claim will result in a fundamental miscarriage of justice.” N.C.G.S. § 15A-1419(b)(2).

In this case, defendant contends his indictment for first-degree murder violated his Sixth Amendment right to notice and right to due process under the United States Constitution. Assuming defendant’s contention has merit, his conviction is based on an invalid indictment, and the trial court was without jurisdiction to enter judgment against him. See State v. Smith, 263 N.C. 788, 789 , 140 S.E.2d 404, 405 (1965) (“valid bill of indictment is an essential of jurisdiction”). Accordingly, failure to consider defendant’s claim would result in a “fundamental miscarriage of justice,” and, therefore, I would reach the merits of defendant’s motion for appropriate relief. See N.C.G.S. § 5A-1412 (1999) (denial of motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A-1419 is procedural and not determinative of the merits of a party’s claim).

Even assuming defendant is not entitled to bring his motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A-1419(b)(2), defendant’s motion alleges, pursuant to N.C. Gen. Stat. § 15A-1415(b)(2), that the trial court did not have subject matter jurisdiction over the charge of first-degree murder on the ground the indictment for first-degree murder was invalid as unconstitutional. See Smith, 263 N.C. at 789 , 140 S.E.2d at 405 . Because a defense based on lack of jurisdiction of the trial court over the subject matter of an action “cannot be waived and may be asserted at any time,” In re Green, 67 N.C. App. 501, 504 , 313 S.E.2d 193, 195 (1984), I would reach the merits of defendant’s motion for appropriate relief.

Substantive Issue

Defendant argues in his motion for appropriate relief, in pertinent part, that N.C. Gen. Stat. § 15-144 , which creates a “short-form” mur *417 der indictment, 1 violates his Sixth Amendment right to notice and right to due process under the United States Constitution. 2 I agree.

A defendant’s right to notice under the Sixth Amendment and right to due process require an indictment to charge each element of an offense. Jones v. United States,-U.S. —, 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 by the Government beyond a reasonable doubt”); Handing v. United States, 418 U.S. 87, 117 , 41 L. Ed. 2d 590, 620 (1974) (indictment must contain elements of offense charged).

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, 408 U.S. 937 , 33 L. Ed. 2d 754 (1972). North Carolina General Statute section 15-144, which states the requirements for a valid indictment for first-degree murder, does not, however, require the indictment to include the elements of premeditation and deliberation. N.C.G.S. § 15-144 (1999). Section 15-144, therefore, does not comply with the requirements of due process and the right to notice under the Sixth Amendment of the United States Constitution; consequently, the statute is unconstitutional. See Faretta v. California, 422 U.S. 806, 818 , 45 L. Ed. 2d 562, 572 (1975) (Sixth Amendment right to notice incorporated as applicable to states through Fourteenth Amendment). In this case, defendant was convicted of first-degree murder based on an indictment issued pursuant to section 15-144, and the indictment did not contain the elements of premeditation and deliberation. I, therefore, would arrest judgment entered against defendant for the charge of first-degree murder. See State v. Simpson, 302 N.C. 613, 617 , 276 S.E.2d 361, 364 (1981) (arresting judgment is appropriate remedy for judgment based on invalid indictment, and arrested judgment does not bar State from bringing valid indictment).

. The “short-form” indictment created by section 15-144 states “it is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed).” N.C.G.S. § 15-144 (1999).

. The United States Supreme Court, in its recent decision of Jones v. United States, -U.S. -, 143 L. Ed. 2d 311 (1999), clarified the federal constitutional requirements of a valid indictment. This Court is bound by holdings of the North Carolina Supreme Court which interpret the federal constitution when those decisions squarely address the issue before this Court. State v. Adams, 132 N.C. App. 819, 821 , 513 S.E.2d 588, 589 , disc. review denied, 350 N.C. 836 , - S.E.2d -, *418 cert. denied, — U.S. —, 145 L. Ed. 2d 414 (1999). Although the North Carolina Supreme Court has intimated that section 15-144 is constitutional, it has not directly addressed this issue. See, e.g., State v. Kilpatrick, 343 N.C. 466 , 471 S.E.2d 624 (1996); State v. Avery, 315 N.C. 1 , 337 S.E.2d 786 (1985); State v. Williams, 304 N.C. 394 , 284 S.E.2d 437 (1981), cert. denied, 456 U.S. 932 , 72 L. Ed. 2d 450 (1982); State v. Lowe, 295 N.C. 596 , 247 S.E.2d 878 (1978). Because this issue has never been squarely addressed by the North Carolina Supreme Court and has not been addressed subsequent to the Jones decision, I do not feel bound by previous decisions of the North Carolina Supreme Court regarding the constitutionality of section 15-144.