State v. Tripp, 2022-NCCOA-795, ___ N.C. App. ___ (Dec. 6, 2022)

In this Brunswick County case, defendant appealed denial of his motion to dismiss the murder charge against him, arguing that it represented double jeopardy. The Court of Appeals granted certiorari to review defendant’s interlocutory appeal, and affirmed the trial court’s denial of the motion.

In 1997, the fifteen-month-old child of defendant’s girlfriend was taken to the emergency room with severe injuries. A pediatrician who treated the child determined he had Battered Child Syndrome and life-altering brain injuries that would prevent the child from ever living or functioning on his own. One year later, defendant entered an Alford plea to four counts of felony child abuse; defendant completed his sentence in 2008. The child lived in long-term care facility until 2018 when he passed away, allegedly from complications related to his injuries. The State brought charges for first-degree murder against defendant after the 2018 death of the child.

Taking up the double jeopardy argument, the court explained that under the same-elements test from Blockburger v. United States, 284 U.S. 299 (1932), offenses for the same conduct are considered the same unless “each offense contains an element not contained in the other.” Slip Op. at 5, quoting United States v. Dixon, 509 U.S. 688, 696 (1993). The court noted that the charges against defendant for felony child abuse and first-degree murder would normally fail the Blockburger test. However, the court applied the exception found in Diaz v. United States, 223 U.S. 442 (1912), where “a defendant subsequently may be prosecuted for a separate offense if a requisite element for that offense was not an element of the offense charged during the defendant’s prior prosecution.” Slip Op. at 8, citing Diaz. Because the necessary element of the child’s death did not occur until 2018, defendant could not have been prosecuted for the murder in 1998. The court rejected defendant’s arguments to expand the scope of North Carolina’s double jeopardy protection beyond applicable precedent and to apply substantive due process to overturn the denial of his motion.