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Evolving Standards in State v. Lancaster – North Carolina Criminal Law

Reminiscent of the Wars of the Roses, our Supreme Court’s recent opinion in State v. Lancaster, __ N.C. __, 895 S.E.2d 337 (2023), concerns an offense first codified in 1328 during the reign of Edward III.  The common law crime of going armed to the terror of the public, our Supreme Court there held, does not require allegation or proof that the conduct occurred on a public highway; hence, there was no facial defect in an indictment omitting this putative element.  Other elements not explicitly stated in the same indictment – for the purpose of terrifying, in a manner that would naturally terrify – were “clearly inferable.”  This post examines Lancaster to ascertain the direction of our Supreme Court’s avowed retreat from archaic pleading requirements.

I. Ancient landmarks

“Common law” is an ambiguous term.  Sometimes used synonymously with caselaw, it refers more specifically to the law of England – both statutory and judge-made – that the colonists were applying in this state at the time of the American Revolution.  This is the law referred to in Section 4-1, where the legislature declares the common law to be in force within this state except where it has been “abrogated, repealed, or become obsolete.”  N.C.G.S. § 4-1; cf. State v. Vance, 328 N.C. 613, 617, 403 S.E.2d 495, 498 (1991) (“the common law of England.”).  Of course, the legislature can abrogate the common law by statute.  State v. McLymore, 380 N.C. 185, 196, 868 S.E.2d 67, 76 (2022).  But it can just as easily codify it, and it becomes the business of the courts to determine which it has done.  Compare id., 380 N.C. at 190, 868 S.E.2d at 72 (statute abolished common law right to perfect self-defense), with State v. Moorman, 320 N.C. 387, 392, 358 S.E.2d 502, 506 (1987) (“Our rape statutes essentially codify the common law of rape.”).

Legislative reception of the common law has substantive and procedural consequences.  Unlike many states and the federal government, North Carolina continues to recognize common law crimes, offenses not defined by any statute.  Such was the crime in Lancaster.  “Because of its tendency to stir up breaches of the peace, ‘terrifying the good people of the land’ by ‘riding or going armed with dangerous or unusual weapons’ was a common law misdemeanor.”  Rollin M. Perkins & Ronald N. Boyce, Criminal Law 492 (3rd. ed. 1982).  Our Supreme Court acknowledged the existence of this crime – going armed to the terror of the public – notwithstanding legislative quiescence, as early as 1843.  See State v. Huntly, 25 N.C. (3 Ired.) 418 (1843) (per curiam).

Procedurally, the rule that a defect in an indictment strips the court of jurisdiction is also derived from the common law.  See Matter of J.U., 384 N.C. 618, 623, 887 S.E.2d 859, 863 (2023).  Again, many states and the federal government have abolished this rule.  See State v. Singleton, 285 N.C. App. 630, 633, 878 S.E.2d 653, 655 (2022) (“North Carolina continues to follow the minority view.”), disc. review allowed, 883 S.E.2d 445 (2023).  Its persistence in North Carolina, however, gave rise to Lancaster, where the Court of Appeals – upon Anders review no less – found a fatal defect in the defendant’s indictment for going armed to the terror of the public and vacated the judgment.  And since the error was jurisdictional, the defendant had neither to preserve the issue at trial by contemporaneous objection nor show prejudice upon appeal to be entitled to relief.  See State v. Lancaster, 284 N.C. App. 465, 471, 876 S.E.2d 101, 105-06 (2022).

II. Going armed to the terror of the public

In Huntly, the evidence showed the defendant was seen by witnesses riding upon the public highway and the premises of James Ratcliff, armed with a doubled barreled gun, declaring he would kill James Ratcliff.  Huntly, 25 N.C. at 419.  The defendant was convicted of going armed to the terror of the public and appealed, arguing that the crime was created by the statute of Northampton, 2 Edw. III, cf. 3, and that this statute had not been in effect in this state since January 1838, when our legislature declared the statutes of England and Great Britian had no more force here.  Id. at 420.  Reviewing available authorities (e.g., Blackstone, Hawkins, Coke), our Supreme Court rejected this argument, concurring with the Chief Justice in Sir John Knight’s case (1686), “that the statute of Northampton was made in affirmance of the common law.”  Id. at 421.  The English statute, in other words, created no new offense but merely codified a preexisting crime, one cognizable here.

In State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968), the evidence showed that the defendant and three others collected “an arsenal of dangerous weapons, a carbine and four pistols,” and rode the public highways of Alamance County at night, firing into several occupied buildings. Id. at 549, 159 S.E.2d at 12.  The defendant was convicted of, among other things, going armed to the terror of the people and appealed, arguing his indictment failed sufficiently to allege the crime. Id. at 538, 159 S.E.2d at 3-4.  Our Supreme Court rejected this argument, concluding that:

It charges all the essential elements of the crime, that is, that defendant (1) armed himself with unusual and dangerous weapons, to wit, pistols and rifles (2) for the unlawful purpose of terrorizing the people of Alamance County, and, (3) thus armed, he went about the public highways of the county (4) in a manner to cause terror to the people.

Id. at 549, 159 S.E.2d at 11–12.

In an October 2020 posting, my predecessor at the School of Government, Jonathan Holbrook (now with the North Carolina Conference of District Attorneys), wondered whether public highways is really an element.  Older cases, he noted, supported merely a public place element, and the public highway element as stated in Dawson might be dicta.  Cf. N.C.P.I. – Crim. 235.20 n.2.  Holbrook concluded that “[u]nless and until we have a newer appellate case revisiting the issue, . . . [public highway] is an element that the state has to prove beyond a reasonable doubt.”

III. Nonexistent and “clearly inferable” elements

Lancaster is that newer case revisiting the issue.  The defendant in Lancaster was waving a gun and firing off rounds in the parking lot of an apartment complex in Havelock, North Carolina. Police located the defendant at a second location, where he was apparently still wielding the gun.  The defendant was arrested and indicted for multiple offenses, including two counts of going armed to the terror of the public.  The indictments alleged that the defendant unlawfully, willfully and feloniously did go armed to the terror of the public by causing a disturbance and waving a firearm around in the parking lots of the two locations.  Lancaster, Slip Op. pp. 1-2.

Upon review, our Supreme Court recognized that “earlier common law principles” had made indictment defects jurisdictional, but it said that the General Assembly’s adoption of the Criminal Procedure Act (in 1975) “represented a sharp departure from the demands of technical pleading.”  It cited with approval United States v. Cotton, 535 U.S. 625 (2002), wherein the United States Supreme Court overruled “the common law principle” that a defective indictment deprives a court of jurisdiction.  Since adoption of the Act, our Supreme Court said, “this Court has been consistent in retreating” from highly technical and archaic common law pleading requirements.  Lancaster, Slip Op. pp. 5-6 (quoting Matter of J.U., 384 N.C. at 622, 887 S.E.2d at 863).

Turning to the defendant’s indictments for going armed to the terror of the public, our Supreme Court found them jurisdictionally sufficient.  Referring to the paragraph quoted above, it said Dawson was describing the specific allegations in that case, “not the general elements of the offense.”  Lancaster, Slip Op. p. 10.  “[T]he crime of going armed to the terror of the public does not require that the offensive conduct occur about a public highway.”  Lancaster, Slip Op. p. 14.

Thus, the elements of the common law crime of going armed to the terror of the public are that the accused (1) went about armed with an unusual and dangerous weapon, (2) in a public place, (3) for the purpose of terrifying and alarming the peaceful people, and (4) in a manner which would naturally terrify and alarm the peaceful people.

Id.  As for the defendant’s argument that his indictments failed to allege a purpose of terrifying, our Supreme Court said that both this element, and the element that such conduct was done in a manner which would naturally terrify, are “clearly inferable” from the allegations that the defendant caused a disturbance and waved a firearm around in the parking lot of an apartment complex.  Lancaster, Slip Op. p. 15 (quoting Matter of J.U., 384 N.C. at 624, 384 S.E.2d at 863).  It concluded that the defendant’s indictments adequately alleged facts supporting each element of the crime, and it reversed the decision of the Court of Appeals.  Lancaster, Slip Op. p. 16.

IV. Conclusion

As recently as 2018, our Supreme Court rejected the suggestion that the Criminal Procedure Act of 1975 abrogated the common law rule that indictment defects are jurisdictional.  See State v. Rankin, 371 N.C. 885, 896, 821 S.E.2d 787, 797 (2018).  In that case, then Chief Justice Martin criticized the common law as perpetuating “an obsolete rule that detrimentally impacts the administration of justice.”  Id. at 919, 821 S.E.2d at 811 (Martin, C.J., dissenting).  Just last year, however, the former Chief Justice’s assessment of the common law rule made its way into a majority opinion.  See Matter of J.U., 384 N.C. at 623, 887 S.E.2d at 863.  Anyone familiar with the terms of Section 4-1 (common law declared to be in force except where it has “become obsolete”) may be forgiven if they believe they can see the writing on the wall.

To be sure, our Supreme Court has not yet abolished the rule that makes indictment defects jurisdictional.  Both J.U. (involving a juvenile petition) and Lancaster find no jurisdictional defect in pleadings that failed to allege putative elements.  (I posted about J.U. here.)  Both cases demonstrate, however, that our Supreme Court is more willing than before to infer elements when the language of the pleading does not state them explicitly.  Cf. State v. Banks, 263 N.C. 784, 785, 140 S.E.2d 318, 319 (1965) (indictment must allege elements “lucidly and accurately”).  It is moving, in other words, away from definite, albeit “highly technical,” common law pleading requirements and toward more amorphous notions of implication and inference.  Whether this represents but a small step toward a more drastic break with our common law heritage remains to be seen.

The trend apparent in J.U. and Lancaster is of particular significance to prosecutors.  Without renouncing the rule that the trial court’s jurisdiction is derived from a facial valid indictment, our Supreme Court seems to be more receptive to arguments that an indictment is sufficient so long as it states facts from which the elements of the offense charged may be inferred.  That test is perhaps implicit in the statutory requirement that an indictment must contain a statement which asserts facts supporting every element of the offense charged.  N.C.G.S. § 15A-924(a)(5).  What is new is the degree to which that formulation is overtaking the former requirement for stating the elements themselves.  Prosecutors should be prepared to evaluate challenged indictments under this new formulation, as indictments which might have fallen before have a better chance of standing up under its criteria.

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