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State v. Courtney

Supreme Court of North Carolina

August 16, 2019

STATE OF NORTH CAROLINA
v.
JAMES HAROLD COURTNEY, III

          Heard in the Supreme Court on 15 May 2019

         On discretionary review pursuant to N.C. G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 817 S.E.2d 412 ( N.C. Ct. App. 2018), vacating a judgment entered on 9 November 2016 by Judge Donald W. Stephens in Superior Court, Wake County. Heard in the Supreme Court on 15 May 2019 in session in the New Bern City Hall in the City of New Bern pursuant to section 18B.8 of Chapter 57 of the 2017 Session Laws of the State of North Carolina.

          Joshua H. Stein, Attorney General, by Jess D. Mekeel, Special Deputy Attorney General, and Benjamin O. Zellinger, Assistant Attorney General, for the State-appellant.

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

          Tin Fulton Walker & Owen, PLLC, by Matthew G. Pruden; and Devereux & Banzhoff, PLLC, by Andrew B. Banzhoff, for North Carolina Advocates for Justice, amicus curiae.

          HUDSON, JUSTICE

         This case comes to us by way of the State's appeal from a unanimous decision of the Court of Appeals holding that defendant's right to be free from double jeopardy was violated when the State voluntarily dismissed defendant's charge after his first trial ended in a hung jury mistrial. Defendant was retried nearly six years later, after new evidence emerged. The State argues that jeopardy is deemed never to have attached because of the mistrial, so that defendant was not in jeopardy at the time that his second trial began. In the alternative, the State argues that, even if defendant remained in jeopardy following the mistrial, the State's voluntary dismissal without leave did not terminate that jeopardy and that the State was not barred from trying the defendant a second time. We are not persuaded by either of the State's arguments and, thus, affirm the Court of Appeals.

         Today we recognize, in accordance with double jeopardy principles set out by this Court and the United States Supreme Court, that jeopardy attaches when the jury is empaneled and continues following a mistrial until a terminating event occurs. We hold that when the State enters a voluntary dismissal under N.C. G.S. § 15A-931 after jeopardy has attached, jeopardy is terminated in the defendant's favor, regardless of the reason the State gives for entering the dismissal. The State cannot then retry the case without violating a defendant's right to be free from double jeopardy. When the State dismisses a charge under section 15A-931 after jeopardy has attached, jeopardy terminates. Thus, we affirm the decision of the Court of Appeals vacating defendant's conviction on double jeopardy grounds and remand to the trial court for further proceedings consistent with this opinion.

         Background

         Defendant was arrested on 2 November 2009 for the murder of James Carol Deberry, which was committed three days earlier on 31 October 2009; he was indicted on 30 November 2009. Defendant's trial began on 6 December 2010, at which point a jury was empaneled and evidence presented. On 9 December 2010, the trial court declared a mistrial after the jury foreperson reported that the jury was hopelessly deadlocked. Defendant was released the same day. Following the hung jury mistrial declaration, the trial court continued the case so the State could decide whether it would re-try defendant on the murder charge. The trial court held status hearings on 16 December 2010 and on 10 February 2011. The trial court's orders from both hearings noted that the case had ended in mistrial and that it would be continued to another status hearing for the State to decide whether it intended to re-try defendant. Ultimately, the State entered a dismissal of the murder charge against defendant on 14 April 2011[1], by filing form AOC-CR-307 with the trial court. Like many similar forms, form AOC-CR-307 includes multiple options; the State may use the form to enter a dismissal, a dismissal with leave, or a notice of reinstatement for a case that had previously been dismissed with leave. The State left blank the sections for dismissal with leave and reinstatement but checked the box in the "dismissal" section next to the statement "[t]he undersigned prosecutor enters a dismissal to the above charge(s) and assigns the following reasons." The State checked the box marked "other" in the list of reasons for dismissal and wrote underneath: "hung jury, state has elected not to re-try case." In addition, the State modified a statement on the form to reflect the circumstances so that it reads: "A jury has not been impaneled nor and has evidence [sic] been introduced." The State's voluntary dismissal of the charge was signed by the prosecutor.

         Several years passed, and the State discovered additional evidence related to the case. In 2013 and 2014, fingerprints and DNA from a cigarette found at the scene of the murder were found to belong to an individual named Ivan McFarland. A review of the cell phone activity for McFarland and defendant revealed that defendant had McFarland's cell phone number in his phone, that five calls had been made between the two phones on the night of the murder, and that cell phone tower data placed both men in the vicinity near where the murder occurred.

         A second warrant for defendant's arrest for murder was issued on 16 June 2015, and defendant was re-indicted on 6 July 2015.[2] On 7 October 2016, defendant filed a motion to dismiss the indictment based on N.C. G.S. § 15A-931, the voluntary dismissal statute, on estoppel and double jeopardy grounds, as well as a second motion to dismiss the murder charge for violating defendant's rights to a speedy trial under the state and federal constitutions. On 10 October 2016, the trial court in open court denied defendant's motion to dismiss based on double jeopardy.[3] Defendant was tried for the second time 31 October 2016 through 9 November 2016 in the Superior Court in Wake County. At that trial, the jury found defendant guilty of second-degree murder, and the trial court sentenced defendant to between 220 and 273 months in prison.

         Defendant appealed to the Court of Appeals, where he argued that his right to be free from double jeopardy was violated when the State re-tried him on the same charge following its voluntary dismissal of the charge after defendant's first trial ended in a hung jury mistrial. In a unanimous opinion filed on 15 May 2018, the Court of Appeals agreed with defendant that his second prosecution violated the Double Jeopardy Clause of the United States Constitution. State v. Courtney, 817 S.E.2d 412, 422 ( N.C. Ct. App. 2018) The Court of Appeals noted that the Double Jeopardy Clause does not prevent the State from retrying a defendant following a hung jury mistrial, but it listed three categories of jeopardy-terminating events that do bar a subsequent prosecution-jury acquittals, judicial acquittals, and "certain non-defense-requested terminations of criminal proceedings, such as non-procedural dismissals or improperly declared mistrials, that for double jeopardy purposes are functionally equivalent to acquittals." Id. at 418 (citing Lee v. United States, 432 U.S. 23, 30, 97 S.Ct. 2141, 2145, 53 L.Ed.2d 80, 87 (1977); United States v. Scott, 437 U.S. 82, 99-100, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65, 79-80 (1978)). The panel concluded that the dismissal entered by the State in this case fell within this third category, "interpret[ing] section 15A-931 as according that dismissal the same constitutional finality and conclusiveness as an acquittal for double jeopardy purposes." Id. at 419. Thus, the Court of Appeals concluded that the trial court had erred in denying defendant's motion to dismiss his 2015 indictment, and it vacated defendant's conviction.[4] On 20 September 2018, we allowed the State's petition for discretionary review of the decision of the Court of Appeals.

         Analysis

         The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution states that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. The U.S. Constitution's guaranty against double jeopardy applies to the states through the Fourteenth Amendment, see Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969), and we have long recognized that the Law of the Land Clause found in our state's constitution also contains a prohibition against double jeopardy, N.C. Const. art. I, § 19; State v. Sanderson, 346 N.C. 669, 676, 488 S.E.2d 133, 136 (1997); see also State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954). "The underlying idea [of this constitutional protection] is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, 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." Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957). In situations where jeopardy has not attached or where, having attached, jeopardy has not yet been terminated, the State retains the power to proceed with a prosecution. But under the Double Jeopardy Clause, "once a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, the defendant may neither be tried nor punished a second time for the same offense." Sattazahn v. Pennsylvania, 537 U.S. 101, 106, 123 S.Ct. 732, 736, 154 L.Ed.2d 588, 595 (2003) (citation omitted).

         When the Double Jeopardy Clause is implicated, an individual's right to be free from a second prosecution is not up for debate based upon countervailing policy considerations. See Burks v. United States, 437 U.S. 1, 11 n.6, 98 S.Ct. 2141, 2147 n.6, 57 L.Ed.2d 1, 9 n.6 (1978) ("[W]here the Double Jeopardy Clause is applicable, its sweep is absolute. There are no 'equities' to be balanced, for the Clause has declared a constitutional policy, based on grounds which are not open to judicial examination.").

         We review de novo a defendant's claim that a prosecution violated the defendant's right to be free from double jeopardy. State v. Sparks, 362 N.C. 181, 186, 657 S.E.2d 655, 658 (2008). The United States Supreme Court has recognized a two-pronged analysis to determine whether a violation of the Double Jeopardy Clause has occurred: "First, did jeopardy attach to [the defendant]? Second, if so, did the proceeding end in such a manner that the Double Jeopardy Clause bars his retrial?" Martinez v. Illinois, 572 U.S. 833, 838, 134 S.Ct. 2070, 2074, 188 L.Ed.2d 1112, 1117 (2014).

         The State asks this Court to hold that neither of these two preconditions for a double jeopardy violation were present here and that, therefore, the re-trial in this case did not offend double jeopardy principles. First, the State argues that, notwithstanding the fact that the defendant was tried once for this murder charge, jeopardy never attached under these circumstances, meaning that jeopardy attached for the first time when the jury was empaneled in the second trial. Second, the State contends that, even if jeopardy did attach when the jury was empaneled and sworn in the first trial, the prosecution's voluntary dismissal of the indictment under N.C. G.S. § 15A-931 was not an event that terminated jeopardy. We are not persuaded by either argument and conclude that the unanimous panel below correctly held that the second trial of defendant violated his rights under the Double Jeopardy Clause.

         I. Attachment and Continuation of Jeopardy

         "There are few if any rules of criminal procedure clearer than the rule that 'jeopardy attaches when the jury is empaneled and sworn.'" Martinez, 572 U.S. at 839, 134 S.Ct. at 2074, 188 L.Ed.2d at 1117 (citations omitted). See also State v. Shuler, 293 N.C. 34, 42, 235 S.E.2d 226, 231 (1977) ("Jeopardy attaches when a defendant in a criminal prosecution is placed on trial: (1) on a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn.").

         Though retrials may proceed in certain circumstances without violating the Due Process Clause, such as when a trial ends in mistrial or when a defendant secures the relief of a new trial after an original conviction is vacated on appeal, [5] see Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242, 251 (1984), "it became firmly established by the end of the 19th century that a defendant could be put in jeopardy even in a prosecution that did not culminate in a conviction or an acquittal, and this concept has been long established as an integral part of double jeopardy jurisprudence." Crist v. Bretz, 437 U.S. 28, 34, 98 S.Ct. 2156, 2160, 57 L.Ed.2d 24, 30 (1978).

         In Richardson v. United States, the United States Supreme Court, recognizing that jeopardy attaches when a jury is sworn, held that a hung jury mistrial does not terminate that jeopardy in the defendant's favor. 468 U.S. at 326, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. Specifically, the Court stated

we reaffirm the proposition that a trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree.

Id. The Richardson Court rejected the defendant's implicit argument that his hung jury mistrial was a jeopardy-terminating event but, importantly, recognized the fact that jeopardy had attached and remained attached following the mistrial. Id. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251 ("Since jeopardy attached here when the jury was sworn, petitioner's argument necessarily assumes that the judicial declaration of a mistrial was an event which terminated jeopardy in his case and which allowed him to assert a valid claim of double jeopardy. But this proposition is irreconcilable with [the Court's prior cases], and we hold on the authority of these cases that the failure of the jury to reach a verdict is not an event which terminates jeopardy.") (citing United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977)).

         The principle affirmed in Richardson that the original jeopardy continues, rather than terminates, following a hung jury mistrial, has been reaffirmed in more recent statements from the Court. See Yeager v. United States, 557 U.S. 110, 118, 129 S.Ct. 2360, 2366, 174 L.Ed.2d 78, 87 (2009) ("[W]e have held that the second trial does not place the defendant in jeopardy 'twice.' Instead, a jury's inability to reach a decision is the kind of 'manifest necessity' that permits the declaration of a mistrial and the continuation of the initial jeopardy that commenced when the jury was first impaneled.") (emphasis added) (citations omitted).

         The State concedes that jeopardy attaches when a jury is empaneled; however, it argues that the occurrence of a hung jury mistrial sets in motion a legal fiction in which the clock is wound back, placing the case back in pre-trial status such that jeopardy is deemed never to have attached.[6] The State's argument posits two necessary conditions.

         First, the State argues that the United States Supreme Court has never held that jeopardy continues following a mistrial, notwithstanding the clear language to the contrary found in Richardson and Yeager. The State contends that the multiple statements by the Court appearing to embrace the doctrine of continuing jeopardy are dicta because a number of those cases did not squarely address the Double Jeopardy Clause's limits on prosecutors' ability to bring a second prosecution on the same charge following a declaration of a hung-jury mistrial that was not sought by the defendant. The State argues that even Richardson's continuing jeopardy discussion is "[a]rguably . . . dictum because by finding a mistrial was not a terminating event, it was immaterial whether or not jeopardy had continued, as opposed to the case being placed back in the pre-trial posture[.]"

         The second element of the State's argument that jeopardy did not attach appears to be as follows: because the U.S. Supreme Court, in the State's view, has not formally adopted the continuing jeopardy doctrine, this Court is free to follow its own precedent on the matter. The State further argues that this Court has explicitly held that upon the declaration of a hung jury mistrial, a legal fiction goes into effect under which jeopardy is deemed never to have attached at the first trial, meaning that no jeopardy exists to continue and eventually terminate. Thus, the State contends that, following his 2010 trial, defendant was placed in precisely the same position in which he stood before trial, and it was only when the jury was empaneled at defendant's second trial in 2016 that jeopardy first attached. We find both components of the State's proffered theory that defendant was not in jeopardy at the time of the mistrial to be wholly without merit.

         In Richardson, the Supreme Court stated multiple times that jeopardy, which existed prior to a mistrial, does not terminate following the mistrial. The Court in Richardson "reaffirm[ed] the proposition that a trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected," and reiterated that "jeopardy does not terminate when the jury is discharged because it is unable to agree." Richardson, 468 U.S. at 326, 104 S.Ct. at 3086, 82 L.Ed.2d at 251 (emphases added). The State argues, however, that merely because the Richardson Court held that "jeopardy does not terminate" following a hung jury mistrial "does not necessarily mean that jeopardy had continued" because, under the State's theory, jeopardy would not terminate because jeopardy would no longer be deemed in effect. While this is a creative argument, it is foreclosed by a commonsense reading of Richardson.

         First, the Richardson Court clearly contemplates the continuation of jeopardy at the time of the mistrial. If the Court had intended to say that jeopardy, which attaches when the jury is empaneled, can-only in the singular context of a hung jury mistrial-be retroactively deemed never to have attached, it could have done so. Instead, the Court stated that the original jeopardy did not terminate, thus signaling that jeopardy continued. We see no logical interpretation of the Court's declaration in Richardson that the original jeopardy did not terminate other than to acknowledge that the original jeopardy continued.[7]

         Second, the outcome and legal significance of Richardson cannot be separated from its text. The continuing jeopardy doctrine reaffirmed by Richardson provided a rationale for the longstanding practice of permitting retrial following a hung jury mistrial that was consistent with the guarantee of the Double Jeopardy Clause. See Richardson, 468 U.S. at 324, 104 S.Ct. at 3085, 82 L.Ed.2d at 250 (citing Logan v. United States, 144 U.S. 263, 297-98, 12 S.Ct. 617, 627-28, 36 L.Ed. 429, 441 (1892); Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717, 730 (1978)).

         The State here argues against the existence of a legal principle that secures the government's right to retry a defendant following mistrial in the face of legal opposition to those retrials on double jeopardy grounds. The State rejects the principle that permitted the Government to prevail in Richardson-that jeopardy continues, rather than terminates, following a mistrial-in favor of an argument that, following a mistrial, jeopardy neither continues nor terminates but rather is deemed never to have attached in the first place. Thus, the State's argument that the Supreme Court has not embraced the principle of continuing jeopardy following a mistrial is unsupported by either the text or context of Richardson.

         The State also points to United States v. Sanford, 429 U.S. 14, 97 S.Ct. 20, 50 L.Ed.2d 17 (1976) (per curiam) to support its argument that, following a hung jury mistrial, a defendant is placed back in a pre-trial posture and jeopardy is deemed not to have attached. In Sanford, defendants were indicted for illegal game hunting, and their trial resulted in a hung jury mistrial. Id. at 14, 97 S.Ct. at 20, 50 L.Ed.2d at 19. Four months later, as the Government was preparing to retry the case, the trial court granted the defendants' motion to dismiss the indictment, concluding that the Government had consented to the activities described in the indictment. Id. The Government appealed. Id. The Supreme Court reversed a decision of the circuit court dismissing the Government's appeal on double jeopardy grounds, concluding that "[t]he dismissal in this case, like that in [Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975)], was prior to a trial that the Government had a right to prosecute and that the defendant was required to defend," id. at 16, 97 S.Ct. at 21-22, 50 L.Ed.2d at 20, and that "in such cases a trial following the Government's successful appeal of a dismissal is not barred by double jeopardy," id. at 16, 97 S.Ct. at 22, 50 L.Ed.2d at 20.

         Though the State is correct that Sanford includes language analogizing the dismissal in that case to the pretrial dismissal considered in Serfass, see id. at 16, 97 S.Ct. at 21, 50 L.Ed.2d at 20, there are two reasons why Sanford does not control here. First, Richardson was decided eight years after Sanford, meaning that if the two opinions were in conflict, Richardson would control. The Court in Sanford issued only a brief per curiam opinion without oral argument, see id. at 16, 97 S.Ct. at 22, 50 L.Ed.2d at 20 (Brennan & Marshall, JJ., dissenting from summary reversal and indicating that they would have set the case for oral argument); however, the Court included a more robust analysis of double jeopardy principles in its later opinion in Richardson.

         Second, the result in Sanford is consistent with the principle discussed two years later in United States v. Scott. In Scott, the Court held that the State was permitted to appeal a defendant-requested dismissal of charges after jeopardy had attached. 437 U.S. at 101, 98 S.Ct. at 2198-99, 57 L.Ed.2d at 80-81. The Court explained that

the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. . . . [T]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.

Id. at 98-99, 98 S.Ct. at 2198, 57 L.Ed.2d at 79. Unlike in Sanford and Scott, the dismissal here was entered unilaterally by the State rather than by a trial court granting defendant's request. Thus, this line of cases is not applicable to the facts before us.

         We now move to the second element of the State's theory that jeopardy attached for the first time at defendant's second trial. As the sole support for its theory that this Court has adopted the principle that jeopardy is deemed never to have previously attached at the point that the trial court declares a mistrial, the State points to a single statement from this Court's decision in State v. Lachat, 317 N.C. 73, 343 S.E.2d 872 (1986). The State notes that we stated in Lachat that "[w]hen a mistrial is declared properly for such reasons [as a deadlocked jury], 'in legal contemplation there has been no trial.'" 317 N.C. at 82, 343 S.E.2d at 877 (quoting State v. Tyson, 138 N.C. 627, 629, 50 S.E. 456, 456 (1905)).

         The Lachat Court quoted this phrase from our 1905 decision in State v. Tyson, 138 N.C. at 629, 50 S.E. at 456. In Tyson, we held that a defendant's double jeopardy right was not violated when the jury was empaneled, the trial court declared a mistrial due to the intoxication of one of the jurors, and the defendant was re-tried and convicted. Id. We stated in Tyson that

[w]here a jury has been impaneled and charged with a capital felony, and the prisoner's life put in jeopardy, the court has no power to discharge the jury, and hold the prisoner for a second trial, except in cases of absolute necessity. Where such absolute necessity appears from the findings of the court, and in consequence thereof the jury has been discharged, then in legal contemplation there has been no trial.

Id. (citation omitted). Significantly, though we stated that there had been "no trial" in this situation, such that the defendant was not subject to double jeopardy, we did not state that, due to the mistrial, there had been "no jeopardy." To the contrary, by noting that a jury may be discharged only "in cases of absolute necessity" after "the prisoner's life [has been] put in jeopardy," we implicitly acknowledged-from the post-mistrial perspective-that the defendant in Tyson had been in jeopardy during his first trial.

         Eight decades later in Lachat, this Court quoted the phrase from Tyson in a somewhat different context. In Lachat, we held that a defendant's second trial should have been barred due to former jeopardy[8] based on the particular findings of fact and conclusions made by the trial court. Lachat, 317 N.C. at 74, 83-84, 343 S.E.2d at 872, 877. Our ruling in Lachat was a fact-specific determination that the trial court had erred in declaring a mistrial before making a proper determination on whether the jury was, in fact, hopelessly deadlocked. Id. at 84-85, 343 S.E.2d at 878. In setting out the applicable law in that case, we stated that the double jeopardy principle

is not violated where a defendant's first trial ends with a mistrial which is declared for a manifest necessity or to serve the ends of public justice. "It is axiomatic that a jury's failure to reach a verdict due to a deadlock is a 'manifest necessity' justifying the declaration of a mistrial." When a mistrial is declared properly for such reasons, "in legal contemplation there has been no trial."

State v. Lachat, 317 N.C. at 82, 343 S.E.2d at 877 (first citing and quoting State v. Simpson, 303 N.C. 439, 447, 279 S.E.2d 542, 547 (1981), then quoting Tyson, 138 N.C. at 629, 50 S.E. at 456). Thus, the Court opined that following a properly declared mistrial, including a mistrial declared due to a hopelessly deadlocked jury, "in legal contemplation there has been no trial." Because Lachat explicitly involved an improperly declared mistrial, any discussion of the consequences stemming from a properly declared mistrial is not conclusive on this point. More importantly, the "no trial" language quoted in Lachat again falls far short of declaring that a defendant in such a situation has not been placed in jeopardy. Nor could this Court have made such a statement, given that, just two years earlier, the Supreme Court in Richardson had embraced the doctrine that jeopardy continues following a hung jury mistrial. [9]

         This Court's prior statements that "in legal contemplation there has been no trial" were made in the context of explaining why the State is permitted to retry a defendant following a properly declared mistrial, which was also the context for the U.S. Supreme Court's embrace of the continuing jeopardy doctrine in Richardson. The State contends that "[i]f a hung jury creates the legal fiction that 'there has been no trial,' then by definition a jury was never empaneled and defendant was never placed in jeopardy." But in our view the State reads this explanatory phrase from our prior opinions too expansively. Contrary to the State's view, this Court did not with those eight words adopt an exception to the longstanding rule recognized by this Court and the United States Supreme Court that jeopardy attaches when a jury is empaneled, nor did we hold that a legal fiction acts to invalidate the jeopardy that a defendant, even one who is later retried, did in fact experience at a first trial.[10]

         The State argues that "the continuing jeopardy doctrine . . . is a slender reed upon which to base a determination that defendant's double jeopardy rights were violated." On the contrary, we conclude that this century-old statement from this Court is a "slender reed" intended only to explain the State's ability to re-try a defendant following a mistrial. This Court has not adopted an elaborate legal fiction under which jeopardy attaches when a jury is empaneled and then simply ceases to apply when the trial court declares a mistrial. This Court has not embraced the proposition proffered by the State and does not do so today. Instead, relying upon the commonsense meaning of binding Supreme Court precedents, we reaffirm that jeopardy continues following a mistrial until the occurrence of a jeopardy-terminating event.

         Because we conclude that the original jeopardy continued following defendant's mistrial, we turn to the second part of our analysis and consider whether the State's subsequent dismissal of defendant's murder indictment terminated the original jeopardy, such that defendant's second trial ...


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