State. v. Courtney, ___ N.C. ___, 831 S.E.2d 260 (Aug. 16, 2019)

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.”