State v. Courtney: Retrying the Defendant after Charges Have Been Dismissed

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James Courtney was charged with first degree murder in 2009 for shooting and killing James Deberry outside Deberry’s Raleigh apartment. Courtney was tried on those charges in December 2010. The jury deadlocked, and the judge declared a mistrial. Four months later, the State dismissed the murder charges, stating on the dismissal form that it had elected not to retry the case. Four years later, the State changed its mind. After gathering new evidence, it sought and received a 2015 indictment once again charging Courtney with first degree murder for killing Deberry. Courtney moved to dismiss the charges, arguing that the State’s dismissal of the initial murder charges following the mistrial precluded the State from recharging him. Was he right?

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The trial court didn’t think so. It denied Courtney’s motion to dismiss. He was retried, convicted of second degree murder, and sentenced to more than 18 years of imprisonment. Courtney appealed. In an opinion published yesterday, the court of appeals held that the trial court erred in denying Courtney’s motion to dismiss and vacated Courtney’s conviction.

State v. Courtney, ___ N.C. App. ___ (2018). The court of appeals held that the State’s voluntary dismissal of the charges pursuant to G.S. 15A-931 after jeopardy had attached had “the same constitutional finality and conclusiveness as an acquittal for double jeopardy purposes.” Slip op. at 17. In addition, the State’s election to voluntarily dismiss the charges following the mistrial rather than announcing the State’s intent to retry it was binding on the State and was tantamount to an acquittal. Thus, the court concluded, “the Double Jeopardy Clause’s protection against successive prosecutions for the same offense barred the State from reprosecuting defendant for Deberry’s murder four years later.” Slip op. at 25.

The analysis. No one disputed that Courtney could have been retried following the mistrial declared by virtue of the deadlocked jury. Because a hung-jury mistrial does not terminate jeopardy, the retrial of a defendant following such a mistrial is considered a continuation of the initial prosecution that does not run afoul of the bar against subsequent prosecution. The question before the court in Courtney was whether the State’s voluntary dismissal under G.S. 15A-931 following the mistrial terminated jeopardy in a manner that was tantamount to an acquittal. If so, Courtney could not be reprosecuted for the offense.

G.S. 15A-931. This statute allows a prosecutor to dismiss criminal charges by entering an oral dismissal in open court before or during the trial or by filing a written dismissal with the clerk at any time. It requires the clerk to record any such dismissal and note in the case file whether a jury has been impaneled or evidence has been introduced, thereby indicating whether jeopardy has attached.

The Criminal Code Commission commentary to the rule explains:

The case of Klopfer v. North Carolina, 386 U.S. 213, held in 1967, that our system of ”nol pros” was unconstitutional when it left charges pending against a defendant and he was denied a speedy trial. Thus we here provide for a simple and final dismissal by the solicitor. No approval by the court is required, on the basis that it is the responsibility of the solicitor, as an elected official, to determine how to proceed with regard to pending charges. This section does not itself bar the bringing of new charges. That would be prevented if there were a statute of limitations which had run, or if jeopardy had attached when the first charges were dismissed.

The court of appeals reasoned that the requirement that the clerk record whether jeopardy has attached indicated the “double jeopardy consequences of pre- and post-jeopardy dismissals would differ.” Slip op. at 16.  In addition, the court noted that the Criminal Code Commission contemplated that the State would be barred from reprosecuting a charge voluntarily dismissed under G.S. 15A-931 if jeopardy had attached when the charge was dismissed. It considered the legislature’s inclusion of that body’s official commentary as an indication that the legislature intended for the courts to turn to it for guidance. Thus, the court concluded that when the State voluntarily dismisses a criminal charge after a jury has been empaneled and sworn, a voluntary dismissal under G.S. 15A-931 has the same constitutional finality as an acquittal for double jeopardy purposes.

State’s election rule. The court further considered how the “State’s election rule” applied in this context. That rule generally holds that when a prosecutor announces his or her intent to seek conviction only for some of the offenses charged in the indictment or only for lesser included offenses, that announcement becomes binding on the State and is tantamount to an acquittal of charges contained in the indictment but not prosecuted at trial once jeopardy attaches. See State v. Jones, 317 N.C. 487 (1986) (holding that State made a binding election not to pursue a verdict of guilty of first-degree rape, thereby effectively assenting to an acquittal of the maximum offense arguably charged by the indictment where the State unequivocally arraigned the defendant on second-degree rape, had that charge entered of record in the clerk’s minutes of arraignment, and failed to express the State’s intent to pursue a conviction for first-degree rape at any time before the jury was impaneled and jeopardy attached).

The court of appeals determined that the State’s election rule applied to bar reprosecution of Courtney following the State’s voluntary dismissal of the charges. Jeopardy attached to the initial murder charges against Courtney when the first jury was empaneled and sworn. The State could have retried Courtney after that jury deadlocked and a mistrial was declared. But instead it dismissed the charges, stating in its dismissal entry that it elected not to retry the case. That entry, said the court, “leaves little doubt that both the trial court and the prosecutor contemplated that his election to dismiss the hung charge, rather than announce the State’s intent to retry it, amounted to a decision conclusively ending the prosecution, as would any reasonable defendant.” Id. at 22. That post-jeopardy-attachment decision was binding on the State and was tantamount to an acquittal.

Bottom line. The State may dismiss charges under G.S. 15A-931 before jeopardy has attached and subsequently refile them without running afoul of the double jeopardy bar against subsequent prosecutions. But, under the rule announced in Courtney, if jeopardy has attached, the State’s dismissal of charges under G.S. 15A-931 will bar it from prosecuting the defendant for the dismissed offense and any lesser included offenses.

2 comments on “State v. Courtney: Retrying the Defendant after Charges Have Been Dismissed

  1. Shouldn’t this have really been a speedy trial question? The protection against double jeopardy is a protection provided by the U.S Constitution and it is clear that a hung jury permits the state to retry to the defendant. The Court’s holding that the administrative dismissal of the pending indictment by the State is the functional equivalent of an acquittal conflates two separate issues of law. There is not law suggesting that extra-judicial actions following a mistrial are the functional equivalent of an acquittal (unlike questions involving the granting of a motion to dismiss or a directed verdict of acquittal). IN fact, a mistrial resulting from a hung jury is one of the few instances in which there is no need to analyze the cause of the mistrial to determine whether a retrial would run afoul of the double jeopardy protections.

    Therefore, it was clear the state was empowered to retry the defendant. It is equally clear that there is no statute of limitations for felonies in North Carolina. Therefore, the State was authorized to dismiss the pending indictment and proceed on a new one after the mistrial. The real question that the Court SHOULD have confronted is whether the defendant’s speedy trial rights were violated. That would have benefited both prosecutors and defense attorneys alike by helping to explain how much time the State is permitted to gather additional evidence to be used at a subsequent trial.

    • Thanks for your comment. The defendant in Courtney raised a speedy trial claim that the court of appeals did not address given its ruling vacating the conviction on double jeopardy grounds. As for your other point, the court of appeals distinguished post-hung-jury dismissals that were requested by the defendant from those entered by the State pursuant to G.S. 15A-931.

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