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State v. Courtney

Court of Appeals of North Carolina

May 15, 2018


          Appeal by defendant from judgment entered 9 November 2016 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 18 April 2018. Wake County, No. 15 CRS 213392

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Jess D. Mekeel, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for defendant.

          ELMORE, JUDGE.

         In 2009, the State charged James Harold Courtney, III (defendant) with first-degree murder for the shooting death of James Deberry. At trial the jury hung, and the trial court declared a mistrial on the ground of jury deadlock. Four months later, the prosecutor filed a N.C. Gen. Stat. § 15A-931 voluntary dismissal of the murder charge with the trial court, acknowledging on the form that its dismissal was being entered after defendant had already faced jeopardy for the charge and explaining the following reason for its dismissal: "Hung jury, State has elected not to re-try case."

         In 2015, however, after acquiring new evidence it believed strengthened its case, the State recharged defendant with first-degree murder for Deberry's homicide. Before his second trial, defendant moved to dismiss the new murder indictment, claiming a double jeopardy bar, which the trial court summarily denied. The second jury found defendant guilty of second-degree murder, and the trial court entered a judgment sentencing him to approximately eighteen to twenty-two years in prison.

         On appeal, defendant concedes that the State was permitted to retry him on the mistried murder charge without violating his double jeopardy rights because the hung-jury mistrial did not terminate the initial jeopardy that attached when the first jury was empaneled and sworn. He argues, however, that the prosecutor's post-mistrial voluntary dismissal of the mistried charge terminated that initial continuing jeopardy and, therefore, the State was barred from reprosecuting him four years later for the same offense. After careful consideration, we agree.

         The Double Jeopardy Clause bars successive prosecutions for the same offense after acquittal. This protection "serves a constitutional policy of finality for the defendant's benefit[, ]" Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) (citation and quotation marks omitted), and "guarantees that the State shall not be permitted to make repeated attempts to convict the accused, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Blueford v. Arkansas, 566 U.S. 599, 605, 132 S.Ct. 2044, 2050, 182 L.Ed.2d 937 (2012) (citation and quotation marks omitted).

         In North Carolina, a prosecutor may take "a simple and final dismissal which terminates the criminal proceedings under that indictment" at any time. State v. Lamb, 321 N.C. 633, 641, 365 S.E.2d 600, 604 (1988) (citing N.C. Gen. Stat. § 15A-931). While "[s]ection 15A-931 does not bar the bringing of the same charges upon a new indictment, " id. (citing N.C. Gen. Stat. § 15A-931 official cmt.), in this case defendant's constitutional right to be free from double jeopardy did, see N.C. Gen. Stat. § 15A-931 official cmt. (opining that reprosecution would be barred "if jeopardy had attached when the . . . charge[ ] w[as] dismissed").

         We hold that when a prosecutor takes a section 15A-931 voluntary dismissal of a criminal charge after jeopardy had attached to it, such a post-jeopardy dismissal is accorded the same constitutional finality and conclusiveness as an acquittal for double jeopardy purposes. Further, while the State has the undisputed right to retry a hung charge, we hold that a prosecutor's election instead to dismiss that charge is binding on the State and tantamount to an acquittal.

         We thus hold that here, by virtue of the prosecutor's post-jeopardy dismissal of the murder charge, regardless of whether it was entered after a valid hung-jury mistrial but before a permissible second trial, the State was barred under double jeopardy principles from retrying defendant four years later for the same charge. Accordingly, we vacate the judgment entered against defendant in 15 CRS 213392.

         I. Background

         On Halloween 2009, James Deberry was fatally shot outside his apartment in Raleigh. The State's evidence tended to show that when responding officers arrived, Deberry was still conscious and told a detective that "a friend upstairs" had shot him. Monica Bustamante, Deberry's fiancé, was with him and explained to the detective that "what he meant was Jar, a friend that lived upstairs, or one of Jar's friends." Police determined that "Jar" was David Moses. The State's evidence also indicated that Moses and defendant had grown up together in New York; that defendant met Deberry at Moses' apartment; that Deberry sold a few pounds of low-grade marijuana to defendant, and likely others, for lower-level distribution; and that Deberry's homicide may have been drug-related.

         The State charged defendant and Moses with first-degree murder. But in return for agreeing to testify at defendant's trial, the State dropped the charge against Moses and granted him immunity. After the jury hung at defendant's first trial, the trial court declared a mistrial, and defendant was released on bail.

         On 16 December 2010 and 10 February 2011, the trial court issued "homicide status hearing" (original in all caps) orders containing handwritten notes from the judge indicating that the matter was set to be reviewed at a later status hearing to determine whether the State was going to retry the case. On 14 April 2011, the prosecutor filed a "Dismissal/Notice of Reinstatement" with the trial court, indicating that it was voluntarily dismissing the murder charge. The form, Form AOC-CR-307, is separated into three sections: (1) "Dismissal, " (2) "Dismissal with leave, " and (3) "Reinstatement." The prosecutor filled in the "Dismissal" section, checking the following boxes: (1) "The undersigned prosecutor enters a dismissal to the above charge(s) and assigns the following reasons:" and (2) "4. Other: (specify)." Next to box 4, the prosecutor wrote: "hung jury, State has elected not to re-try case." Under box 4 the form contains a typewritten sentence concerning whether a jury had been impaneled and whether evidence had been presented, with instructions to edit the sentence to reflect whether the voluntary dismissal was being entered before or after jeopardy had attached to the charge. With the handwritten edits, that sentence reads as follows (omissions are stricken; additions are underlined): "A jury has not been impaneled nor and has [sic] evidence been introduced."

         In 2013 and 2014, the State acquired new evidence putting Ivan McFarland, a friend of both defendant and Moses from New York, at the scene of Deberry's shooting, and obtained cellphone records indicating that five calls were made between defendant's and McFarland's cellphones during the day of the shooting. In 2015, the State charged McFarland and recharged defendant with Deberry's murder.[1] On 6 July 2015, a grand jury reindicted defendant for first-degree murder.

         Before his second trial, defendant moved to dismiss the 2015 murder indictment on double jeopardy grounds. Defendant conceded that the State was permitted to retry him for Deberry's homicide following the December 2010 hung-jury mistrial. But he argued that since the prosecutor four months later in April 2011 instead elected under N.C. Gen. Stat. § 15A-931 to voluntarily dismiss the 2009 murder indictment, after he had already faced jeopardy for that charge at the first trial, the Double Jeopardy Clause barred the State from retrying him for the same offense. The trial court summarily denied the motion.

         Additionally, the following events occurred which we briefly address only to provide context for defendant's other non-dispositive alleged errors. Before his second trial, defendant also moved to dismiss the 2015 murder indictment on speedy trial grounds, which the trial court denied; and he objected to not having been formally arraigned at least a week before he was tried and requested a continuance, which the trial court denied, immediately arraigned him, and began trial the same day. At trial, the trial court admitted cellphone record evidence under Rule 802(6)'s business- records exception to the rule against hearsay, over defendant's objection that the records were not properly authenticated under Rule 902.

         After the State rested its case, defendant presented no evidence. The jury convicted defendant of second-degree murder, and the trial court entered a judgment sentencing him to 220 to 273 months in prison. Defendant appeals.

         II. ...

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