State v. Barber
| Decision Date | 21 December 2021 |
| Docket Number | COA 20-268 |
| Citation | 2021 NCCOA 695 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. WILLIAM JOSEPH BARBER, Defendant. |
Heard in the Court of Appeals 11 August 2021.
Appeal by Defendant from judgment entered 6 June 2019 by Judge Stephan R. Futrell in Wake County No. 17CRS209941 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Matthew Tulchin, for the State.
C Scott Holmes, Irving Joyner, and Malcolm Ray. Hunter, Jr for the Defendant.
¶ 1 Defendant was convicted in superior court of second-degree trespass by a jury for refusing to leave the office area of the North Carolina General Assembly when told by security personnel to do so. We conclude that the superior court had jurisdiction over the matter and that Defendant received a fair trial, free from reversible error.
¶ 2 Defendant was charged with second-degree trespass, a misdemeanor, for refusing to leave the General Assembly complex when told to do so by an officer.
¶ 3 The State's evidence tended to show as follows:
¶ 4 Defendant led a group of approximately fifty (50) people through the General Assembly office complex, protesting the inaction by our legislature to implement certain health care policy. The protest, which included "call and response" chants led by Defendant, triggered complaints from legislative staff.
¶ 5 Under the rules governing the legislative complex, visitors "may not disturb or act in a manner that will imminently disturb the General Assembly[.]"[1] Disruptive visitors are told to stop their behavior, and if they refuse, they are asked to leave immediately. The rules warn, "A knowing violation of these rules is a Class 1 misdemeanor under G.S. 120-32.1(b)."[2]
¶ 6 In accordance with these rules, the General Assembly's Police Chief repeatedly told Defendant and the group he was leading to lower their noise level, or they would be subject to arrest. The Police Chief then specifically told Defendant to stop leading the chants and leave. Defendant, however, did not leave, and the protest continued in a manner that proceeded to disturb the work of legislative staff. Accordingly, Defendant was charged with trespass.
¶ 7 Defendant was never tried in our district court division. Rather, he was tried, in the first instance, by a jury in our superior court division on the sole charge of second-degree trespass. The jury returned a guilty verdict, and the trial court entered judgment accordingly. Defendant timely appealed.
¶ 8 Defendant makes several arguments on appeal, which we address in turn.
¶ 9 Defendant argues that our superior court division lacked jurisdiction to try him for a misdemeanor charge because the charging document upon which the State proceeded was not an indictment returned by the grand jury, but rather a misdemeanor statement of charges drawn up by the prosecutor.
¶ 10 A defendant may properly raise the issue of subject matter jurisdiction at any time, even for the first time on appeal. In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). Challenges based on subject matter jurisdiction are reviewed de novo. In re A.L.L., 376 N.C. 99, 101, 852 S.E.2d 1, 4 (2020).
¶ 11 Here, Defendant was indicted by the grand jury for second-degree trespass. Specifically, the grand jury issued a "presentment" directing the prosecutor to investigate the matter after hearing testimony from the legislative officer who had cited Defendant. A month later, the prosecutor sought the indictment, which was returned by the grand jury and served on Defendant.
¶ 12 However, on the eve of trial, the prosecutor prepared and served on Defendant a different charging document, called a "misdemeanor statement of charges." This document charged Defendant with essentially the same crime as had been charged in the indictment. The State proceeded with the trespassing prosecution pursuant to the statement of charges document rather than the indictment.
¶ 13 Defendant makes a compelling argument on appeal that the procedure followed by the prosecutor was improper, an argument that may have been a winning one based on the case law cited. However, we must take note of a decision from our Supreme Court handed down last year, the reasoning of which compels us to conclude that Defendant was properly tried in our superior court division.
¶ 14 Our district court division generally has "exclusive, original jurisdiction" to try misdemeanors. N.C. Gen. Stat. § 7A-272(a) (2017). Our superior court division generally hears misdemeanor prosecution, in the exercise of a defendant's right to a trial de novo, only after a defendant has been found guilty of the charge in the district court division. Id. § 7A-271(a)(5).
¶ 15 However, there are limited situations where our superior court division may hear a misdemeanor charge without first being a trial in the district court. For instance, relevant to our analysis here, a defendant may be tried for a misdemeanor in superior court in the first instance "[w]hen the charge is initiated by presentment, " Id. § 7A-721(a)(2), which is followed by an indictment.
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).
¶ 16 As stated above, this procedure-presentment by the grand jury followed by an indictment-was followed here. However, the prosecutor then decided to proceed pursuant to an entirely different charging document, the misdemeanor statement of charges. There is statutory authority to proceed on a misdemeanor charge in superior court when hearing the matter de novo from a conviction in district court. However, our superior court does not have original jurisdiction to try a misdemeanor charged in a statement of charges. See N.C. Gen. Stat. § 7A-271(a) (outlining superior court's jurisdiction to hear misdemeanor cases).
¶ 17 The question before us is whether it was fatal that the prosecution proceeded pursuant to the statement of charges, where the superior court otherwise had jurisdiction to proceed on the indictment that followed the presentment.
¶ 18 Defendant contends that our Court's jurisprudence, specifically State v. Wall, 235 N.C.App. 196, 760 S.E.2d 386 (2014), compels us to conclude that the superior court lacked jurisdiction to proceed against Defendant for second-degree trespassing pursuant to a "statement of charges," notwithstanding that Defendant was properly indicted by a grand jury for the same offense. The reasoning in Wall does seem to support Defendant's position as explained below. Defendant's argument perhaps would have been a winning one until last year. However, we conclude that this issue is controlled by the reasoning of our Supreme Court's more recent opinion in State v. Capps, 374 N.C. 621, 843 S.E.2d 167 (2020).
¶ 19 Our 2014 decision in Wall relies on State v. Killian, 61 N.C.App. 155, 300 S.E.2d 257 (1983). In Killian, the defendant was tried in district court pursuant to a pleading, known as a "warrant," that charged him with a certain misdemeanor. He appealed his conviction to the superior court for a trial de novo. Since the superior court was not exercising original jurisdiction (as the defendant had already been convicted in our district court division), it was appropriate for our superior court to proceed pursuant to the original warrant. Id. at 158, 300 S.E.2d at 259. However, rather than trying him for the same charge, the prosecutor in Killian proceeded pursuant to a "statement of charges" pleading that charged the defendant for a different crime than the one alleged in the warrant. Id. at 155, 300 S.E.2d at 258.
¶ 20 Our Court in Killian held that the superior court had no jurisdiction to proceed on the statement of charges, as it alleged a crime different from the crime alleged in the original warrant:
"Because [the crime charged] is a misdemeanor, the district court had exclusive, original jurisdiction of the new offense. G.S. 7A-272(a). Until defendant was tried and convicted in district court and appealed to superior court for trial de novo, the superior court had no jurisdiction [and] is derivative and arises only upon an appeal from a conviction of the misdemeanor in district court[.] The superior court thus had no jurisdiction to try defendant for the new offense alleged in the statement [of charges], and the conviction accordingly must be reversed.
Id. at 158, 300 S.E.2d at 259 (citation and quotation omitted).
¶ 21 Thirty-one years later, in 2014, our Court decided Wall, the case relied upon by Defendant. Wall involved procedural facts similar to Killian, except in Wall, the prosecution issued a statement of charges prior to the trial de novo that charged the same crime (resisting a public officer) as charged in the magistrate's order, the charging document in the district court trial. Wall, 235 N.C.App. at 199, 760 S.E.2d at 388. Specifically, the magistrate's order used in the district court prosecution charged the defendant with "resisting a public officer, § 14-223"; and the statement of charges used in the trial de novo also charged the defendant with violating "§ 14-223." Id. at 198, 760 S.E.2d at 387.
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