Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/22/2021
E.g., 09/22/2021

Citing the text of the Double Jeopardy Clause of the Fifth Amendment, historical evidence, and “170 years of precedent,” the Court refused to overturn the “dual-sovereignty” doctrine and held that the defendant’s federal prosecution for unlawful possession of a handgun was not barred by principles of double jeopardy despite the fact that the defendant had been previously convicted for the same instance of possession under state law. 

The defendant pleaded guilty in Alabama state court to possession of a firearm by a person convicted of a crime of violence and thereafter was indicted by the United States for the analogous federal offense based on the same instance of possession.  He moved to dismiss on the ground that the federal indictment was for “the same offence” as the one at issue in his state conviction and thus exposed him to double jeopardy.  The district court denied the motion and the Eleventh Circuit affirmed, each citing the dual-sovereignty doctrine – the long-standing principle that two offenses are not the “same offence” for double jeopardy purposes if prosecuted by different sovereigns.  Reviewing the text of the Double Jeopardy Clause, historical evidence, and its precedent, the Court affirmed the lower courts and declined to depart from the doctrine.

Dissenting from the majority opinion, Justice Ginsburg characterized the dual-sovereignty doctrine as “misguided” and, for reasons explained in her dissenting opinion, would have overruled it.  Dissenting separately, Justice Gorsuch also would have overruled the doctrine, saying that it “was wrong when it was invented, and remains wrong today.”

When a defendant agrees to have charges against him considered in two trials, he cannot later successfully argue that the second trial offends the Double Jeopardy Clause. Facing trial on charges of burglary, grand larceny, and unlawful possession of a firearm by a felon, defendant Michael Currier worried that because the prosecution could introduce evidence of his prior convictions to prove the felon-in-possession charge, that evidence might prejudice the jury’s consideration of the other charges. Currier and the government agreed to a severance, with the burglary and larceny charges to be tried first, followed by a second trial on the felon-in-possession charge. But after the first trial ended in an acquittal, Currier argued that the second trial would violate double jeopardy. Alternatively he asked the trial court to forbid the government from relitigating in the second trial any issue resolved in his favor at the first. So, for example, he said the trial court should exclude from the new proceeding any evidence about the burglary and larceny. The trial court rejected his arguments and allowed the second trial to proceed. The jury convicted Currier on the felon-in-possession charge. After his unsuccessful appeal in the state courts, the Supreme Court granted review.

                  Currier argued that Ashe v. Swenson, 397 U. S. 436 (1970), required a ruling in his favor. The Court rejected this argument, noting, in part, that Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial. It found Ashe distinguishable, noting that in the case before it, the defendant consented to the second trial. Instead, the Court found guidance in Jeffers v. United States, 432 U.S. 137 (1977), in which the defendant sought separate trials on each count against him to reduce the possibility of prejudice. The court granted his request. After the jury convicted the defendant in the first trial of a lesser-included offense, he argued that the prosecution could not later try him for a greater offense. The Jeffers Court concluded that if a single trial on multiple charges would suffice to avoid a double jeopardy complaint, “there is no violation of the Double Jeopardy Clause when [the defendant] elects to have the . . . offenses tried separately and persuades the trial court to honor his election.” (citation omitted). The Court continued:

What was true in Jeffers, we hold, can be no less true here. If a defendant’s consent to two trials can overcome concerns lying at the historic core of the Double Jeopardy Clause, so too we think it must overcome a double jeopardy complaint under Ashe. Nor does anything in Jeffers suggest that the outcome should be different if the first trial yielded an acquittal rather than a conviction when a defendant consents to severance. While we acknowledge that Ashe’s protections apply only to trials following acquittals, as a general rule, the Double Jeopardy Clause “‘protects against a second prosecution for the same offense after conviction’” as well as “‘against a second prosecution for the same offense after acquittal.’” Because the Clause applies equally in both situations, consent to a second trial should in general have equal effect in both situations. (citation omitted)

The Court went on to explain that holding otherwise would create inconsistency not just with Jeffers but with other Court precedents as well. It concluded: “This Court’s teachings are consistent and plain: the ‘Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.’”

                  The Court continued in Part III of the Opinion, which garnered only four votes, rejecting Currier’s argument that even if he voluntarily consented to holding the second trial, that consent did not extend to the relitigation of any issues the first jury resolved in his favor. This argument turned on issue preclusion principles in civil cases that Currier invited the Court to import into the criminal law through the Double Jeopardy Clause. As noted, however, this aspect of the Court’s opinion did not enjoy the support of a majority of the Court.

The issue-preclusion component of the Double Jeopardy Clause does not bar the Government from retrying the defendants after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated on appeal because of error in the judge’s instructions on related to the verdicts’ inconsistency.

The Double Jeopardy Clause bars Puerto Rico and the United States from successively prosecuting a single person for the same conduct under equivalent criminal laws. Puerto Rican prosecutors indicted the defendant for illegally selling firearms in violation of the Puerto Rico Arms Act of 2000. While those charges were pending, federal grand juries also indicted them, based on the same transactions, for violations of analogous federal gun trafficking statutes. The Court held that the separate sovereign doctrine (double jeopardy does not bar successive prosecutions if they are brought by separate sovereigns) did not apply. If two entities derive their power to punish from independent sources, then they may bring successive prosecutions. Conversely, if the entities draw their power from the same ultimate source, then they may not. While States are separate sovereigns from the federal government, Puerto Rico is not.

Double jeopardy barred the State’s appeal of a trial court order dismissing charges for insufficiency of the evidence. After numerous continuances granted to the State because of its inability to procure its witnesses for trial, the defendant’s case was finally called for trial. When the trial court expressed its intention to proceed the prosecutor unsuccessfully asked for another continuance and informed the court that without a continuance “the State will not be participating in the trial.” The jury was sworn and the State declined to make an opening statement or call any witnesses. The defendant then moved for a directed not-guilty verdict, which the court granted. The State appealed. The Court held that double jeopardy barred the State’s attempt to appeal, reasoning that jeopardy attached when the jury was sworn and that the dismissal constituted an acquittal. 

Evans v. Michigan, 568 U.S. 313 (Feb. 20, 2013)

When the trial court enters a directed verdict of acquittal based on a mistake of law the erroneous acquittal constitutes an acquittal for double jeopardy purposes barring further prosecution. After the State rested in an arson prosecution, the trial court entered a directed verdict of acquittal on grounds that the State had provided insufficient evidence of a particular element of the offense. However, the trial court erred; the unproven “element” was not actually a required element at all. The Court noted that it had previously held in Arizona v. Rumsey, 467 U. S. 203, 211 (1984), that a judicial acquittal premised upon a “misconstruction” of a criminal statute is an “acquittal on the merits . . . [that] bars retrial.” It found “no meaningful constitutional distinction between a trial court’s ‘misconstruction’ of a statute and its erroneous addition of a statutory element.” It thus held that the midtrial acquittal in the case at hand was an acquittal for double jeopardy purposes.

Double Jeopardy did not bar retrying the defendant on charges of capital and first-degree murder. Before the jury concluded deliberations, it reported that it was unanimous against guilt on charges of capital and first-degree murder but was deadlocked on manslaughter and had not voted on negligent homicide. The court instructed the jury to continue deliberations. However, when the jury still could not reach a verdict, the court declared a mistrial. The parties agreed that the defendant could be retried on manslaughter and negligent homicide. The issue presented was whether he could also be retried for capital and first-degree murder. Answering this question in the affirmative, the Court rejected the defendant’s argument that by reporting its votes on capital and first-degree murder, the jury acquitted him of those charges. The Court reasoned that the fact that deliberations continued after the jury’s report deprives the report of the finality necessary to constitute an acquittal on the murder offenses. The Court also rejected the defendant’s argument that the trial court’s declaration of a mistrial was improper. Specifically, the defendant argued that the trial court should have taken some action, whether through partial verdict forms or other means, to allow the jury to give effect to its votes on the murder charges and then considered a mistrial only as to the remaining charges. The Court rejected this argument, stating: “We have never required a trial court, before declaring a mistrial because of a hung jury, to consider any particular means of breaking the impasse—let alone to consider giving the jury new options for a verdict.”

Renico v. Lett, 559 U.S. 766 (May. 3, 2010)

The Michigan Supreme Court’s decision concluding that the defendant’s double jeopardy rights were not violated by a second prosecution after a mistrial on grounds of jury deadlock was not an unreasonable application of federal law. The state high court had elaborated on the standard for manifest necessity and noted the broad deference to be given to trial court judges; it had found no abuse of discretion in light of the length of the deliberations after a short and uncomplicated trial, a jury note suggesting heated discussion, and the foreperson’s statement that the jury would be unable to reach a verdict. In light of these circumstances, it was reasonable for that court to determine that the trial judge had exercised sound discretion.

Yeager v. United States, 557 U.S. 110 (June 18, 2009)

An apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the preclusive force of the acquittals under the double jeopardy clause. In this case, the defendant was charged with both fraud and insider trading. The charges were related in that the fraud counts involved a determination of whether the defendant possessed insider information. The jury acquitted on the fraud counts but hung on the insider trading counts. After the trial court declared a mistrial on the insider trading counts, the government obtained a new indictment on some of those counts. The Court reasoned that the Double Jeopardy Clause precludes the government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior proceeding. The fact of the apparent inconsistency in the jury’s verdict was immaterial because hung counts are not relevant to the issue preclusion analysis. If, in acquitting on the fraud counts, the jury concluded that the defendant did not possess insider information, the government would be barred from prosecuting the defendant again for insider information.

Bobby v. Bies, 556 U.S. 825 (June 1, 2009)

Nearly ten years before the U.S. Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002) (Eighth Amendment bars execution of mentally retarded defendants), the defendant was tried for murder and other crimes. The defendant was found guilty and, after being instructed to weigh mitigating circumstances (including evidence of the defendant’s borderline mental retardation) against aggravating circumstances, the jury recommended a sentence of death. On direct review, the state supreme court noted that the defendant’s mild to borderline mental retardation deserved some weight in mitigation but affirmed the conviction. However, on federal habeas, the Sixth Circuit upheld a lower court order vacating the death sentence, concluding that double jeopardy precluded an Atkins hearing on the defendant’s mental retardation. The U.S. Supreme Court reversed, holding that double jeopardy did not preclude an Atkins hearing on mental retardation.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___ (2018), the court affirmed the Court of Appeals’ decision vacating the defendant’s conviction on double jeopardy grounds. In this murder case, the defendant’s first trial ended in a mistrial due to a deadlocked jury. After two status hearings, the State entered a dismissal on form AOC-CR-307, checking the “dismissal” box and writing “hung jury, state has elected not to re-try case” on the form. Several years later, the discovery of additional evidence led to the defendant being re-indicted. The defendant’s motion to dismiss on double jeopardy grounds was denied and the defendant was convicted of second-degree murder. 

On appeal, the Supreme Court applied a two-pronged analysis to evaluate the defendant’s double jeopardy claim: (1) did jeopardy attach, and (2) if so, did the proceeding end in such a manner that the Double Jeopardy Clause bars his retrial. As to the first prong, the court said jeopardy clearly attached when the first jury was empaneled and sworn. Further, under Richardson v. United States, 468 U.S. 317 (1984), jeopardy continued following the mistrial. The court rejected the State’s argument that mistrial created a legal fiction under which jeopardy is deemed never to have attached at the first trial, and that there was thus no jeopardy to terminate at the time the State dismissed the initial charge. To the contrary, the court read Richardson as contemplating a “continuing jeopardy doctrine,” where jeopardy continued from its initial attachment in the first trial through the end of the case. As to the second prong of the analysis, the court concluded that the State’s dismissal of the charge under G.S. 15A-931 was binding on the State and tantamount to an acquittal, and that it was thus a jeopardy-terminating event for double jeopardy purposes. As a result, the defendant’s second trial was barred by double jeopardy, and the Supreme Court affirmed the Court of Appeals’ decision vacating it.

Justice Newby authored a dissent, joined by Justice Ervin, which would have concluded under State v. Tyson, 138 N.C. 627, 629 (1905), that the mistrial returned the case to pretrial status where the State could dismiss the charge without prejudice. The majority’s rule, the dissent argued, “places the State in the impossible position of choosing to proceed to a new trial with what one jury deemed insufficient evidence or lose any opportunity to hold the defendant accountable for the crime.”

State v. Banks, 367 N.C. 652 (Dec. 19, 2014)

Because the defendant was properly convicted and sentenced for both statutory rape and second-degree rape when the convictions were based on a single act of sexual intercourse, counsel was not ineffective by failing to make a double jeopardy objection. The defendant was convicted of statutory rape of a 15-year-old and second-degree rape of a mentally disabled person for engaging in a single act of vaginal intercourse with the victim, who suffers from various mental disorders and is mildly to moderately mentally disabled. At the time, the defendant was 29 years old and the victim was 15. The court concluded that although based on the same act, the two offenses are separate and distinct under the Blockburger “same offense” test because each requires proof of an element that the other does not. Specifically, statutory rape involves an age component and second-degree rape involves the act of intercourse with a victim who suffers from a mental disability or mental incapacity. It continued:

Given the elements of second-degree rape and statutory rape, it is clear that the legislature intended to separately punish the act of intercourse with a victim who, because of her age, is unable to consent to the act, and the act of intercourse with a victim who, because of a mental disability or mental incapacity, is unable to consent to the act. . . .

Because it is the General Assembly’s intent for defendants to be separately punished for a violation of the second-degree rape and statutory rape statutes arising from a single act of sexual intercourse when the elements of each offense are satisfied, defendant’s argument that he was prejudiced by counsel’s failure to raise the argument of double jeopardy would fail. We therefore conclude that defendant was not prejudiced.

For the reasons stated in the dissenting opinion below, the court reversed State v. McKenzie, 225 N.C. App. 208 (Jan. 15, 2013), which had held, over a dissent, that prosecuting the defendant for DWI violated double jeopardy where the defendant previously was subjected to a one-year disqualification of his commercial driver’s license under G.S. 20-17.4.

In this Bertie County case, the defendant was charged with first-degree murder and felony possession of a weapon by a prisoner for an alleged fight at Bertie Correctional Institution that left another inmate dead. After court adjourned on the first day of the defendant’s trial, one of the State’s witnesses, the prison’s assistant superintendent, told the prosecutor for the first time that the defendant’s blood-stained clothes from the day of the alleged incident were at the prison and had never been turned over to law enforcement. (The prosecutor was clearly frustrated by the oversight and the trial judge called it “ridiculous.”) The next morning, the State moved for a mistrial, arguing that it would be unfair to proceed with the trial without first testing the evidence, because it could be either corroborative or exculpatory depending what DNA testing showed. After a hearing on the issue, the trial court granted the State’s motion, concluding as a matter of law that “it is in the public’s interest in a fair trial” to enter a mistrial and give the SBI time to test the clothing. Almost 3 years later the case came on for a second trial before a different judge. That judge denied the defendant’s motions to dismiss both charges on double jeopardy grounds. The defendant was convicted of possession of a weapon by a prisoner, but the jury deadlocked on first-degree murder, resulting in another mistrial on that charge. On appellate review, the Court of Appeals concluded that the second trial judge erred by denying the defendant’s motion to dismiss on double jeopardy grounds. To grant the motion, the appellate court said, would have required a showing that the first mistrial had been properly entered for “manifest necessity.” Manifest necessity can be based on physical necessity (like when a juror falls ill), or the necessity of doing justice (like when there is evidence of jury tampering). Here, the court concluded, there was no evidence of physical necessity or misconduct by any party—just new evidence that was already in the possession of State officials, but of which the prosecution was unaware. Because the State bore the risk of proceeding to trial based on an incomplete investigation of evidence already in its possession, there was no manifest necessity justifying the mistrial in the first case. Jeopardy therefore attached and barred the State from further prosecuting the defendant. The Court of Appeals vacated the weapon possession conviction and remanded the case for dismissal of both charges.

The defendant was charged with insurance fraud and obtaining property by false pretenses based on her submission of claims for living expenses that she did not incur. Following Hurricane Matthew, the defendant submitted a lease agreement purportedly signed by her stepfather providing that the defendant would pay $100 per day to stay in his home. Defendant’s stepfather subsequently told investigators that he did not have a lease agreement with the defendant and that she had not stayed in his home. The defendant was convicted of both charges at a jury trial.  The trial court consolidated the convictions for judgment and sentenced the defendant to 10 to 21 months imprisonment, suspended for 24 months of supervised probation. The trial court ordered the defendant to serve 60 days imprisonment as a condition of special probation.  The defendant appealed, arguing that the trial court erred by sentencing her for both obtaining property by false pretenses and insurance fraud for the same alleged misrepresentation. She also argued that the trial court improperly delegated its authority to the defendant’s probation officer by failing to set a date by which the term of special probation had to be completed.

(1) The court of appeals determined that the trial court did not err by sentencing her for obtaining property under false pretenses and insurance fraud even though both offenses arose from the same misrepresentation. To determine whether multiple punishments may be imposed for multiple convictions in a single trial based on a single course of conduct, the court must look to the intent of the legislature. Each of the offenses for which the defendant was convicted contained an element the other did not. Insurance fraud requires proving that the defendant presented a statement in support of a claim for payment under an insurance policy; obtaining property by false pretenses requires proving that the defendant’s misrepresentation did in fact deceive. Based on the separate and distinct elements that must be proven, the appellate court reasoned that the legislature clearly expressed its intent to proscribe and punish a misrepresentation intended to deceive under both statutes. Additionally, the court noted that the subject of each crime is violative of two separate, distinct social norms: “Where obtaining property by false pretenses is generally likely to harm a single victim, a broader class of victims is harmed by insurance fraud.” Slip. op. at 8. Finally, regarding the history of the treatment of the two crimes for sentencing purposes, the court noted that previous panels had sustained sentencing for convictions of obtaining property by false pretenses and insurance fraud arising from the same misrepresentation. For these reasons, the court of appeals determined that the trial court did not err by consolidating the Class H felony convictions for judgment and sentencing the defendant in the high presumptive range for one Class H felony.

(2) The trial court did not err by delegating authority to the defendant’s probation officer and by not setting a completion deadline for the active term of the sentence as a condition of special probation. G.S. 15A-1351(a) permits a trial court to require that a defendant submit to periods of imprisonment during probation at “whatever time or intervals within the period of probation . . . the court determines,” so long as the total period of such confinement does not exceed one-fourth of the maximum sentence imposed. It further requires that imprisonment imposed as a condition of special probation be completed within two years of conviction.

In this case, the trial court sentenced the defendant to 10 to 21 months of imprisonment and suspended that sentence for 24 months of supervised probation. As a condition of probation, the trial court ordered the defendant to serve 60 days of imprisonment as a condition of special probation. The court specified that the defendant was “‘TO SERVE 30 DAYS AT ONE TIME AND 30 DAYS AT ANOTHER TIME AS SCHEDULED BY PROBATION.’” Slip op. at 11. The court of appeals held that the trial court appropriately determined the “intervals within the period of probation” as two 30-day periods, and the completion date was set by statute as August 27, 2021—which, in defendant’s case, was both the end of the two-year probationary period and two years from the date of conviction.

In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.

(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.

(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.

(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):

Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).

 The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.

(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:

[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).

The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.

(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim.  He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed: 

[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.

Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]

(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects. 

(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.

(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.

A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.

Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.

The defendant was convicted of accessory after the fact to a felony and felony obstruction of justice in Cleveland County relating to her efforts to assist a murder suspect (later convicted of second-degree murder) evade capture. (1) The defendant argued the statutory offense of accessory after the fact abrogated the common law offense of obstruction of justice in part, such that she could not be convicted of both. The North Carolina Supreme Court previously rejected this argument inIn re Kivett, 309 N.C. 635, 670 (1983), which defeated this claim. The defendant also argued that the two offenses were the same for purposes of double jeopardy, in that they are greater- and lesser-included offenses of each other. This argument has also been rejected by the prior decisions of the Court of Appeals, as the offenses have different elements: “This Court has expressly held that accessory after the fact and obstruction of justice do not constitute the same offense, and that neither is a lesser-included offense of the other.” Cruz Slip op. at 9 (citation omitted). Substantial evidence supported each instruction as well. As to the accessory conviction, the evidence showed the defendant provided personal assistance to the suspect while knowing he was wanted for murder. As to the obstruction conviction, the defendant lied to detectives about seeing or communicating with the suspect and deleted information from her phone showing she was in communication with him after police expressed an interest in her phone. This evidence was sufficient to support the instructions for each offense and the trial court did not err by so instructing the jury.

(2) The trial court did not commit plain error by failing to instruct the jury that if the defendant believed the killing was done in self-defense, she could not be convicted of accessory after the fact. Even if the defendant believed the killing was justified, the evidence here was sufficient to raise “a reasonable inference that the [D]efendant knew precisely what had taken place,” as she had notice of the suspect’s outstanding arrest warrant for murder at the time of her assistance to the defendant and her deceptions to law enforcement. The convictions were therefore unanimously affirmed.

The defendant was convicted of first-degree murder based on felony murder, attempted first-degree murder, felonious discharge of a firearm into an occupied vehicle in operation, and two counts of conspiracy to commit first-degree murder. The defendant’s brother was the shooter and was convicted in a separate case. (1) On appeal the defendant argued that the trial judge committed plain error by admitting the following evidence. (A) A witness testified that the defendant knew that the defendant’s brother intended to shoot the victims. The Court found that the testimony was inadmissible because a witness may not testify to another person’s mind or purpose without personal knowledge of the person’s mind or purpose, a foundation not laid by the State. The Court concluded, however, that erroneous admission of the testimony did not have a probable impact on the jury’s finding that the defendant counseled and knowingly aided the shooting by assisting in luring the victims to the place where the defendant’s brother shot them. (B) Two witnesses who were not called as experts, one of whom was a detective, testified that the defendant concealed evidence about the planned shooting by using a smartphone texting app. Applying Rule 701 of the North Carolina Rules of Evidence, which requires that opinion testimony by lay witnesses be rationally based on a witness’s perception and helpful to the jury, the Court found that the State failed to lay a foundation showing that the witnesses were familiar with how the use of such apps affects cell phone records. The Court concluded that the erroneous admission of the testimony was not plain error because other evidence showed that the defendant was communicating with her brother via cellphone, that her brother destroyed his cellphone, and there were no records of their communications, which the jury could have viewed in a manner disadvantageous to the defendant. (C) A witness testified to the good character of one of the victims— that he was kind, protective, and nonviolent, among other qualities. The Court held that this testimony was inadmissible under Rule 404(a)(2) because it was not offered to rebut any evidence by the defendant that the victim was the first aggressor in the altercation. The Court concluded that the erroneous admission of the testimony was not plain error given other evidence consistent with the defendant’s guilt. (2) The defendant argued, the State conceded, and the Court found that the trial judge erred in allowing the jury to convict her of two counts of conspiracy because the evidence showed a single conspiracy to shoot two people. The Court therefore vacated one of the conspiracy convictions and remanded for resentencing. One judge concurred in the result only.

In this Watauga County case for indecent liberties, the defendant was accused of improper contact with a child in an incident allegedly witnessed by the child’s sister and mother. The State sought to compel the mother and two daughters to testify at trial. After jury was impaneled and opening statements were given, the court released the jury for the day. The State sought a show-cause order for the mother of the alleged victim, stating that the witness and her children were not present despite having been personally served with a subpoena. The State recounted efforts to reach the witnesses at the mother’s home and work, as well as at the children’s school. The defense opposed the show-cause order and sought to have trial proceed. The trial court issued the show-cause for the mother and set the matter for hearing the next morning. The mother and children again did not appear in court the next day and the trial court received more information that the witnesses could not be found. The State then sought an order for the mother’s arrest. Defense counsel again opposed the request, asking that the trial proceed or be dismissed and opposing any mistrial. The trial court issued the order for the mother’s arrest and held the proceedings open until later in the afternoon. When the witnesses were still not present, the State moved for a mistrial, arguing that the witnesses were “necessary and essential” and that trial could not proceed without them. The defendant again opposed a mistrial. The trial judge granted the mistrial, finding that the witnesses were not available due to no fault of the parties and “that their absence ‘deprived the State of its ability to present its case and to meet its burden of proof.’” At retrial, the defendant filed a motion to dismiss, arguing that a second trial would violate double jeopardy. The trial court denied the motion, ruling that because an earlier Superior Court judge had found a manifest necessity supporting the mistrial order, the present trial court could not overrule that earlier decision. The motion was therefore denied. The defendant sought review in the Court of Appeals by way of petition for writ of certiorari, which was granted. The Court of Appeals reversed.   

(1) The State first argued that appellate review should be limited to the motion to dismiss and should not consider the propriety of the mistrial order. The court disagreed. Under State v. Odom, 316 N.C. 306 (1986), “where the order of mistrial has been improperly entered over a defendant’s objection, defendant’s motion for dismissal at a subsequent trial must be granted.” In order to determine whether the motion to dismiss should have been granted, the court must also determine the propriety of the mistrial order.  The court observed that it reviewed both the order denying the motion to dismiss and the mistrial order in the recent case of State v. Schalow, 215 N.C. App. 334 (2016), disc. rev. improvidently allowed, 370 N.C. 525 (2018), on similar facts.

(2) The State also alleged that the constitutional issue was unpreserved, because the defendant failed to object to the mistrial. Rejecting this contention, the court noted:

Although Defendant never formally recited the word “objection” or noted any “exception” to the trial court’s declaration of a mistrial, he did ‘present the trial court with a timely request’ to deny the State’s motion for a mistrial, ‘stating the specific grounds for the ruling sought.’

While the defendant is generally not entitled to plead double jeopardy when he fails to object to the mistrial, here, the trial court heard arguments and ruled on the issue. This was sufficient to preserve the issue for appellate review.

(3) The trial court erred in denying the motion to dismiss based on its perceived inability to overrule another Superior Court judge. Under Odom, the court faced with a double jeopardy motion must determine whether the mistrial order was appropriate. While a mistrial normally does not support a double jeopardy claim, a mistrial must be supported by a manifest necessity when the defendant objects. A mistrial may be declared due to “physical necessity”—such as when a juror can no longer participate in the trial—or due to the “necessity of doing justice”—to protect the court system from “fraudulent practices” or where a fair trial has become impossible. Where the State seeks a mistrial, it has a “heavy” burden to carry in justifying the order. When the mistrial is based on missing or unavailable evidence, the “strictest scrutiny” applies under Arizona v. Washington, 434 U.S. 497 (1978). The inquiry looks at what the State knew at the time that trial began, and close cases should be resolved “in favor of the liberty of the citizen. . . “ Here, “it is clear the State took a chance by impaneling the jury ‘without first ascertaining’ that its witnesses . . . were present and available to testify.” There was no record evidence of any misconduct on the defendant’s part causing the witnesses to be absent, and all three witnesses were under subpoena before trial. The State assumed the risk that its witnesses would not appear, and that jeopardy would attach once the jury was impaneled. These circumstances did not constitute a manifest necessity. The court therefore unanimously reversed the trial court, remanding for the trial court to grant the motion to dismiss.

After getting into an argument at a holiday party, the defendant fired a warning shot from a rifle into the air and then fired a single shot into a moving vehicle occupied by two people, striking one of them in the neck and seriously injuring him. Defendant was subsequently convicted and sentenced for four felonies related to the shooting, including charges for both: (1) discharging a weapon into an occupied vehicle in operation inflicting serious bodily injury, a Class C felony under G.S. 14-34.1(c) (for the injured victim); and (2) discharging a weapon into an occupied vehicle in operation, a Class D felony under G.S. 14-34.1(b) (for the second occupant). On appeal, the defendant argued that the trial court should have arrested judgment on the lesser of the two charges for firing into an occupied vehicle, because he could not be sentenced twice for the single act of firing one shot. The Court of Appeals agreed and held that although the defendant could be indicted and tried for both charges, upon conviction the trial court should have arrested judgment for the lesser offense. This case was distinguishable from other cases in which multiple judgments were supported because the defendant fired multiple shots or fired into multiple vehicles. In this case, where there was only one shot fired into one vehicle, the relevant inquiry under the statute is only whether the vehicle was occupied; the number of occupants is immaterial. To the extent that the presence of additional occupants in the vehicle increases the risk of injury or enhances the culpability of the act, that factor is accounted for by the ascending levels of punishment prescribed under the statute.

The defendant was convicted of and received consecutive sentences for assault with a deadly weapon inflicting serious injury (ADWISI) and assault by a prisoner with a deadly weapon inflicting bodily injury based on the same act of stabbing another prisoner. The Court of Appeals rejected the defendant’s argument that consecutive sentences for the two offenses violated the Double Jeopardy Clause of the Fifth Amendment. The Court reasoned that the ADWISI charge requires that the injury be serious while the assault by prisoner charge requires bodily injury only, which may or may not be serious. The Court reasoned further that the assault by a prisoner charge requires bodily injury while the ADWISI charge may be shown by a physical or mental injury. The Court concluded for these reasons that “serious injury” and “bodily injury” are not synonymous and the defendant’s double jeopardy argument therefore fails.

Because misdemeanor larceny and simple assault are lesser included offenses of common law robbery, the trial court erred by sentencing the defendant for all three offenses. The court rejected the State’s argument that the defendant was not prejudiced by this error because all three convictions were consolidated for judgment and the defendant received the lowest possible sentence in the mitigated range. The court noted that the State’s argument ignores the collateral consequences of the judgment. The court thus arrested judgment on the convictions for misdemeanor larceny and simple assault.

On the particular facts of the case, the trial court’s erroneous entry of judgment of not guilty by reason of insanity did not create a jeopardy bar to further proceedings. The trial court’s order did not constitute an acquittal to which jeopardy attached. Its order, which dismissed the charges with leave, was more akin to a procedural dismissal than a substantive ruling.

 

In this murder case, the court succinctly rejected the defendant’s argument that he could not be retried for murder after his first trial ended in a hung jury. It noted that courts have long held that the prohibition against double jeopardy does not apply when the prior trial ended in a hung jury.

 

(1) The evidence was sufficient to sustain a conviction for obtaining property by false pretenses. After the defendant falsely reported that his girlfriend had written 3 checks on his account without authorization, he received a provisional credit on his bank account with respect to one of the checks. He asserted, in part, that the provisional credit did not constitute a “thing of value.” The court disagreed, concluding that the provisional credit was the equivalent of money placed into his account, to which the defendant had access, at least temporarily.

(2) The trial court did not commit plain by failing to instruct the jury that the defendant could not be convicted of obtaining property by false pretenses and of attempting to obtain property by false pretenses based on a single transaction. The defendant attempted to obtain $900 from his bank by making a false representation in an affidavit that 3 unauthorized checks were written on his account. He obtained $600 of the $900 he had attempted to obtain; this amount was attributable to one of the checks. He was charged and convicted of both obtaining property by false pretenses and of an attempted version of the crime with respect to the money he did not obtain. Construing the statute, the court concluded: “the General Assembly did not intend to subject a defendant to multiple counts of obtaining property by false pretenses where he obtains multiple items in a single transaction. Rather, the statute provides for an increase in punishment if the value of the property taken exceeds $100,000.” Here, the defendant attempted to collect the value of three checks in a single transaction but was successful only in obtaining credit for one of the checks. Notwithstanding this, the court concluded that the trial court did not err in its jury instructions. The court reasoned that the error was a double jeopardy issue and because the defendant failed to object at trial, the issue was waived on appeal.

In this sex offender registration case, double jeopardy barred convictions under both G.S. 14-208.11(a)(2) and (a)(7). The defendant was convicted of two separate crimes: one pursuant to G.S. 14-208.11(a)(2) (failure to notify the last registering sheriff of a change in address) and one pursuant to 14-208.11(a)(7) (failure to report in person to the sheriff’s office as required by, here, G.S. 14-208.9(a) (in turn requiring that a person report in person and provide written notice of an address change)). The court noted that it has previously held that the elements of an offense under G.S. 14-208.11(a)(2) and under G.S. 14-208.9(a) are the same: that the defendant is required to register; that the defendant changed his or her address; and that the defendant failed to notify the last registering sheriff of the change. It concluded: “Because in this case North Carolina General Statute § 14-208.11(a)(2) and (a)(7) have the same elements, one of defendant’s convictions must be vacated for violation of double jeopardy.” The court went on to reject the State’s argument that the legislature intended to allow separate punishment under both subsection (a)(2) and (a)(7). 

The court vacated the defendant’s attempted murder conviction on double jeopardy grounds. The defendant was originally charged and indicted for attempted murder of his wife. After the trial began, the trial court, over the defendant’s objection, ruled that the indictment was fatally defective because it failed to allege that the defendant acted with malice aforethought and declared a mistrial. When the defendant was re-indicted for attempted murder, he asserted that the second prosecution was barred by double jeopardy. The defendant argued that there was no fatal defect in the first indictment; that the trial court abused its discretion in declaring the mistrial; and that once jeopardy attached on the dismissed indictment for attempted voluntary manslaughter, the defendant could not be prosecuted again for the greater offense of attempted murder. The trial court denied the defendant’s motion to dismiss and the defendant was convicted. The court first determined that although the original indictment failed to properly charge attempted first-degree murder, it sufficiently alleged of attempted voluntary manslaughter. Thus, the trial court’s decision to terminate the first prosecution was based on the erroneous belief that the defect in the indictment deprived the court of jurisdiction. An order of mistrial after jeopardy has attached may only be entered over the defendant’s objection where manifest necessity exists. If a mistrial results from manifest necessity, double jeopardy does not bar retrial. However if there is no manifest necessity and the order of mistrial has been improperly entered over a defendant’s objection, jeopardy bars a subsequent prosecution. Here, the original indictment was not fatally defective because it sufficiently alleged attempted voluntary manslaughter. Since the trial court retained jurisdiction, it could have proceeded on attempted voluntary manslaughter, as the defendant requested. The court was careful to distinguish this case from those in which a dismissal or mistrial is entered on the defendant’s motion or with the defendant’s consent, noting: “if a defendant successfully seeks to avoid his trial prior to its conclusion by actions or a motion of mistrial or dismissal, the Double Jeopardy Clause is generally not offended by a second prosecution.” Having found that no manifest necessity existed to declare a mistrial on the first indictment that properly charged attempted voluntary manslaughter, the court held that double jeopardy precluded a second prosecution for the greater offense of attempted first-degree murder.

No violation of double jeopardy occurred where the defendant was convicted of attempted larceny and attempted common law robbery when the offenses arose out of the same incident but involved different victims. The defendant committed the attempted larceny upon entering the home in question with the intent of taking and carrying away a resident’s keys; he committed the attempted common law robbery when he threatened the resident’s granddaughter with box cutters in an attempt to take and carry away the keys.

No double jeopardy violation occurs when the State retries a defendant on a charging instrument alleging the correct offense date after a first charge was dismissed due to a fatal variance.

The trial court did not err by entering a civil no contact order against the defendant pursuant to G.S. 15A-1340.50 (permanent no contact order prohibiting future contact by convicted sex offender with crime victim). The court held, among other things, that because the order was civil in nature, it presented no double jeopardy issues. 

Because the defendant failed to object to the declaration of a mistrial in his noncapital case, he failed to preserve his double jeopardy claim.

The trial court did not err by denying the defendant’s pre-trial motion to dismiss a charge of felonious possession of stolen property on double jeopardy grounds. Although the defendant was indicted for felony possession of stolen property (a Toyota truck) under G.S. 14-71.1, at the first trial, the jury was instructed on felony possession of a stolen motor vehicle under G.S. 20-106. The defendant was found guilty and he successfully appealed on grounds that the trial judge erred by instructing the jury on an offense not charged in the indictment. When the defendant was retried for felony possession of stolen property, he moved to dismiss on double jeopardy grounds, arguing that by failing to instruct on felony possession of stolen property, the trial court effectively dismissed that charge and that dismissal constituted an acquittal. Relying on prior case law, the court agreed that the trial court effectively dismissed the crime of possession of stolen property. However, the court went on to hold that this effective dismissal did not amount to an acquittal for double jeopardy purposes because it was not a dismissal for insufficient evidence.

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