Appeal by defendant from judgment entered 11 January 2006 by
Judge J. Gentry Caudill in Mecklenburg County Superior Court.
Heard in the Court of Appeals 25 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General V.
Lori Fuller, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant.
On 9 January 2006, a jury found Broderick Terrell Morris
(defendant) guilty of second-degree kidnapping and assault
inflicting serious injury. On 11 January 2006, the trial court
entered judgment against defendant, consolidated defendant's
convictions for sentencing, and sentenced defendant to twenty to
thirty-three months in prison. Defendant now appeals, contending
that the trial court's amendment of the indictment against him
substantially altered the charge and unfairly prejudiced his
defense. Because we hold that the trial court's amendment of theindictment was in error, we vacate defendant's kidnapping
conviction, grant him a new trial on that charge, and remand for
On 26 November 2004, defendant allegedly broke into his
girlfriend's home, argued with her, and beat her severely. His
girlfriend, Freda, called her mother, Berta, the next day,
requesting that Berta take her to the hospital. When Berta asked
Freda why, Freda told her that she and defendant got into it, that
he had broke in that night.
As Berta was not able to leave work, Berta and Freda called
Freda's sister, Misty. Misty took Freda to the hospital, where
Freda repeated her story to doctors and police, stating that
defendant broke into her home, held her against her will, and beat
At trial, however, Freda recanted her former statements,
claiming that on the night in question, she let defendant into her
home; that they argued, in part, over defendant's involvements with
other women; that defendant attempted to leave several times; that
as defendant attempted to leave, Freda tried to kick him in the
back, and in the process fell, thus sustaining injuries; that
defendant was concerned for her health and asked to take her to the
hospital but that Freda refused; and that in response to Freda
yelling at him as he left, defendant punched and broke the window
on his way out. Freda explained her claimed prior lack of honesty
by stating that her family did not approve of defendant and that
she feared that they would be angry and cease helping herfinancially if she admitted to having consented to seeing
Freda's testimony was contradicted by the testimony given by
Berta, Misty, Officer Robert A. Murfitt, Detective Veda Strother,
and Doctor Michael Thomason. Defendant offered no evidence in his
On appeal, defendant first contends that the trial court erred
in amending the kidnapping indictment. We agree.
The original bill of indictment alleges that:
[O]n or about and between the 26th day of
November, 2004, and the 27th day of November,
2004, in Mecklenburg County, Broderick Terrell
Morris did unlawfully, willfully and
feloniously kidnap Freda . . ., a person who
had attained the age of sixteen (16) years, by
unlawfully confining her, restraining her, and
removing her from one place to another,
without her consent, and for the purpose of
facilitating the commission of a felony.
Freda . . . was seriously injured.
At trial, the judge amended the indictment, stating, Given
the State's position [that it announced at the beginning of trial
its intention to proceed on a second-degree, rather than first-
degree, kidnapping theory], and the Defendant's lack of objection
. . . this bill of indictment should be amended to reflect the
charge that the State's proceeding on . . . . Accordingly, the
trial judge made the following changes: The last sentence, Freda
. . . , was seriously injured would be stricken. The last
sentence, therefore, would read confining, restraining her, and
removing her from one place to the other without her consent for
the purpose of facilitating inflicting serious injury. Our Supreme Court recently stated,
In enacting Chapter 15A of the General
Statutes, the Criminal Procedure Act, the
General Assembly provided that a bill of
indictment may not be amended. This Court has
interpreted that provision to mean a bill of
indictment may not be amended in a manner that
substantially alters the charged offense. In
determining whether an amendment is a
substantial alteration, we must consider the
multiple purposes served by indictments, the
primary one being to enable the accused to
prepare for trial.
State v. Silas, 360 N.C. 377, 379-80, 627 S.E.2d 604, 606 (2006)
(quotations, citations, and alterations omitted).
Our General Statutes define the crime of kidnapping, in
pertinent part, as follows:
(a) Any person who shall unlawfully confine,
restrain, or remove from one place to another,
any other person 16 years of age or over
without the consent of such person, or any
other person under the age of 16 years without
the consent of a parent or legal custodian of
such person, shall be guilty of kidnapping if
such confinement, restraint or removal is for
the purpose of:
(2) Facilitating the commission of any
felony or facilitating flight of any person
following the commission of a felony; or
(3) Doing serious bodily harm to or
terrorizing the person so confined, restrained
or removed or any other person
(b) There shall be two degrees of kidnapping
as defined by subsection (a). If the person
kidnapped . . . had been seriously injured . .
., the offense is kidnapping in the first
degree and is punishable as a Class C felony.
N.C. Gen. Stat. § 14-39 (2005) (emphasis added).
Defendant contends that by changing the alleged purpose of the
confinement, restraint or removal, the State substantiallyaltered the indictment, to the detriment of his ability to prepare
for trial. The State counters that the change in the indictment
merely specified on which of the two purposes listed in the
original indictment the State chose to proceed.
Contrary to the State's suggestion, it is clear from reading
the original indictment that the State originally alleged that
defendant confined, restrained, or removed Freda for the purpose
of facilitating the commission of a felony. Likewise, the
inclusion of the allegation that she was seriously injured was
obviously intended to elevate the crime to the first degree. The
change was a substantial alteration.
This conclusion is consistent with our prior holdings in
analogous cases. See, e.g.
, State v. Brown
, 312 N.C. 237, 247-48,
321 S.E.2d 856, 862-63 (1984) (granting a new kidnapping trial
where a judge instructed that the defendant could be found guilty
if he removed, restrained or confined the alleged victim for the
purpose of terrorizing her, rather than for the purpose of
facilitating the commission of a felony, as alleged in the
indictment); State v. Bailey
, 97 N.C. App. 472, 478-79, 389 S.E.2d
131, 134 (1990) (granting a new trial for a kidnapping charge on
the basis of a variance between the indictment, which alleged that
the victim was not released in a safe place, and the jury
instruction, which alleged infliction of serious bodily harm).
We therefore hold that the trial court erred in its amendment
of the indictment. Defendant's second and third assignments of
error, claiming ineffective assistance of counsel, are not properlybefore this Court.
(See footnote 1)
Accordingly, we remand for a new trial on the
kidnapping charge and resentencing, and find no error in
defendant's assault inflicting serious injury conviction. No
error in part, new trial in part.
Judge GEER concurs.
Judge HUNTER dissents in part and concurs in part by separate
HUNTER, Judge, dissenting in part and concurring in part.
The majority has concluded that the trial court's amendment of
defendant's indictment substantially altered the charge against him
and therefore vacated defendant's kidnapping conviction and granted
him a new trial on that charge. Because I disagree with the
majority's holding I respectfully dissent on this issue, but agree
with the majority that the issue of ineffective assistance of
counsel is not properly before this Court.
In this case, the original bill of indictment alleged that:
[O]n or about and between the 26th day of
November, 2004, and the 27th
day of November,
2004, in Mecklenburg County, [defendant] did
unlawfully, willfully and feloniously kidnap
Freda . . . , a person who had attained the
age of sixteen (16) years, by unlawfully
confining her, restraining her, and removing
her from one place to another, without her
consent, and for the purpose of facilitatingthe commission of a felony. Freda . . . was
The last sentence of the indictment alleged that defendant
committed a first degree kidnapping. See
N.C. Gen. Stat. § 14-
39(b) (2005) (defining one type of first degree kidnapping as a
kidnapping in which the victim had been seriously injured). The
language regarding [f]acilitating the commission of a felony
alleged that defendant committed a second degree kidnapping. N.C.
Gen. Stat. § 14-39(a)(2) and (b).
Before the jury was selected, the State announced in open
court that insofar as the kidnapping indictment was concerned, it
would only be proceeding on the theory of second degree kidnapping.
At the close of the evidence, the judge amended the indictment to
conform with the State's charge of second degree kidnapping. Thus,
the last sentence of the indictment was stricken. The next to last
sentence was amended to reflect the particular felony with which
the State presented evidence -- intent to inflict serious injury.
Accordingly, that sentence read confining, restraining her, and
removing her from one place to the other without her consent for
the purpose of facilitating inflicting serious injury. Thus, the
only charge submitted to the jury relating to the alleged
kidnapping was one of second degree.
Under N.C. Gen. Stat. § 15A-923(e) (2005), [a] bill of
indictment may not be amended. Our Supreme Court has interpreted
this language to mean a bill of indictment may not be amended in
a manner that substantially alters the charged offense. State v.
, 360 N.C. 377, 380, 627 S.E.2d 604, 606 (2006). To determinewhether an amendment constitutes a substantial alteration the
reviewing court consider[s] the multiple purposes served by
indictments, the primary one being 'to enable the accused to
prepare for trial.' Silas
, 360 N.C. at 380, 627 S.E.2d at 606
Defendant contends that by changing the purpose of the alleged
kidnapping, the State substantially altered the indictment, to the
detriment of this ability to prepare for trial. The State argues
that the amendment merely reflected which of the two offenses,
first degree or second degree, listed in the original indictment
the State chose to pursue. At trial, the State chose to pursue the
lesser included second degree offense.
In State v. Bailey
, 97 N.C. App. 472, 389 S.E.2d 131 (1990),
this Court found a substantial variance and ordered a new trial on
the first degree kidnapping charge because the trial court
instructed the jury on serious bodily injury . . . while the
indictment alleged as the basis for first-degree kidnapping that
the victim was not released in a safe place. Id
. at 478, 389
S.E.2d at 134. Similarly, our Supreme Court has granted a new
trial where the defendant's indictment charged him with first
degree kidnapping for failure to release the victim in a safe place
under N.C. Gen. Stat. § 14-39(b) because the trial court instructed
that the jury must find that [defendant] 'removed, restrained and
confined' the victim 'for the purpose of terrorizing' her, a theory
under N.C.G.S. § 14-39(a)(3) totally distinct from the theoryalleged in the indictment under (a)(2)[.] State v. Brown
N.C. 237, 247, 321 S.E.2d 856, 862 (1984).
, however, are distinguishable from the
case at bar. In this case, the State proceeded on a theory of
second degree kidnapping that was included in the original bill of
indictment. This is not a case where the trial court instructed on
a theory of kidnapping that was totally distinct from the
theor[ies] alleged in the indictment[.] See id
. Instead, the
initial indictment alleged that the victim was seriously injured.
Accordingly, when the trial court amended the indictment to read,
for the purpose of facilitating inflicting serious injury there
was not a substantial alteration of the original indictment because
the first indictment contained an allegation of serious injury.
See State v. Moore
, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986)
([t]he indictment in a kidnapping case must allege the purpose or
purposes upon which the State intends to rely, and the State is
restricted at trial to proving the purposes alleged in the
, the Supreme Court held that [i]f the State seeks an
indictment which contains specific allegations of the intended
felony, the State may not later amend the indictment to alter such
, 360 N.C. at 383, 627 S.E.2d at 608. Such is
not the case here. In this case, the State did not allege a
specific felony. Instead, the portion of the indictment relating
to the second degree charge merely stated that defendant intended
to commit a felony within the course of the kidnapping. When theindictment was amended at the end of the trial it stated more
specifically the felony (intent to inflict serious injury) of which
the State presented evidence.
Additionally, there is no requirement that an indictment
contain specific allegations that the defendant intended to commit
a specific felony. Id
. Although the Silas
Court was addressing an
amendment of an indictment for felonious breaking or entering, I
would apply the same reasoning to this case. See State v. Freeman
314 N.C. 432, 435, 333 S.E.2d 743, 745 (1985) (second degree
kidnapping indictments need not allege which specific felony the
defendant intended to commit; a general allegation that defendant
intended to commit any felony is sufficient). In the instant case,
the original indictment met the standard set out in Silas
alleging that defendant committed a felony in the course of
confining, restraining, or removing the victim.
(See footnote 2)
N.C. at 383, 627 S.E.2d at 608. Thus, defendant could rely on the
allegations in the original indictment when preparing for trial
because it contained an allegation that defendant intended to
commit a felony. Silas
, 360 N.C. at 380, 627 S.E.2d at 606 (the
primary purpose of an indictment is to allow the accused to prepare
There being no need to amend the indictment under either Silas
, I fail to see how defendant can claim that he wasprejudiced when the jury was submitted instructions regarding an
intent to inflict serious injury. If anything, such an amendment
and instruction could only aid defendant as the jury was thus
limited to finding that specific felony rather than being able to
find an intent to commit any felony.
For the foregoing reasons, I would hold that the amendment to
defendant's indictment did not constitute a substantial alteration
to the original indictment and would therefore find no error as to