State v. Baker, ___ N.C. App. ___, 822 S.E.2d 902 (Dec. 18, 2018)

Although the State improperly circumvented district court jurisdiction by simultaneously obtaining a presentment and an indictment from a grand jury, the proper remedy is to remand the charges to district court, not dismissal. The defendant was issued citations for impaired driving and operating an overcrowded vehicle. After the defendant’s initial hearing in district court, she was indicted by the grand jury on both counts and her case was transferred to Superior Court. The grand jury was presented with both a presentment and an indictment, identical but for the titles of the respective documents. When the case was called for trial in Superior Court, the defendant moved to dismiss for lack of subject matter jurisdiction due to the constitutional and statutory invalidity of the presentment and indictment procedure. The Superior Court granted the defendant’s motion and the State appealed.

          G.S. 15A-641 provides that “[a] presentment is a written accusation by a grand jury, made on its own motion . . . .” It further provides that “[a] presentment does not institute criminal proceedings against any person, but the district attorney is obligated to investigate the factual background of every presentment . . . 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.” The plain language of G.S. 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.” The court rejected the State’s argument that G.S. 15A-644 governs the procedure for presentments and that because the presentment met the requirements of that statute it is valid, concluding in part: “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.” Here, the prosecutor did not investigate the factual background of the presentment after it was returned and before the grand jury considered the indictment. Because the prosecutor submitted these documents to the grand jury simultaneously and they were returned by the grand jury simultaneously in violation of G.S. 15A-641 “each was rendered invalid as a matter of law.” The court thus affirmed the superior court’s ruling that it did not have subject matter jurisdiction over the case.

         The court went on to affirm the lower court’s conclusion that the superior court prosecution violated the defendant’s rights under Article I, Section 22 of the state constitution, but found that it need not determine whether the defendant was prejudiced by this violation. It further held that the trial court erred in holding that the State violated the defendant’s rights under Article I, Sections 19 and 23 of the North Carolina Constitution.

         On the issue of remedy, the court agreed with the State that the proper remedy is not dismissal but remand to District Court for proceedings on the initial misdemeanor citations.