A recent court of appeals case, State v. Calderon, ___ N.C. App. ___ (2023), sets forth a new test for determining whether multiple acts of touching a child during a single encounter can support multiple counts of indecent liberties.
double jeopardy
“No True Bill” on a Superseding Indictment… Now What?
The defendant has been indicted for a felony, and is in custody awaiting trial. The prosecutor decides to submit a superseding indictment to the grand jury, alleging the same offense but expanding the date range and adding a second victim. Unfortunately for the state, the grand jury returns “no true bill” on the superseding indictment.
What impact does the grand jury’s verdict have on the underlying case? Can the state still proceed on the original indictment? Should the defendant be released? May the state submit another superseding indictment and try again? If so, is there a limit to how many times?
These questions crossed my desk recently, and I discovered that the case law interpreting the key North Carolina statutes, G.S. 15A-629 and 646, is pretty thin on these issues. I also learned that other jurisdictions have reached dramatically different answers to the same questions. This post looks at the reasoning behind the competing views, and considers which approach is a better fit under our statutes and cases.
Understanding the Epstein Case
On July 6, wealthy financier Jeffrey Epstein was arrested and charged with sex trafficking. He’s being held without bond on the charges, which were brought by the United States Attorney’s Office for the Southern District of New York. In 2008, Epstein pled guilty to related conduct in state court in Florida, pursuant to a non-prosecution agreement with the United States Attorney’s Office for the Southern District of Florida. Is the government trying to take a second bite at the apple? Can they do that? Could something like that happen in North Carolina?
Missing Witnesses, Mistrials, and Manifest Necessity
The Fourth Circuit recently issued a decision prohibiting retrial of a defendant charged with murder following a mistrial. The government obtained the mistrial over the defendant’s objection when a key witness could not be located during the trial. On appeal, the Fourth Circuit found that no manifest necessity justified the mistrial and that double jeopardy prohibited another attempt by the government to convict the defendant. I previously wrote about mistrials and double jeopardy here, and I wanted to flag this case for readers for its treatment of missing witnesses in the mistrial context. The case is Seay v. Cannon, ___ F.3d ___, 2019 WL 2552953 (4th Cir., June 21, 2019).
Charging the Felony After a Misdemeanor Appeal
This question has come up more than once around here lately, so I thought it would be worth summarizing in a blog post.
The defendant is in district court charged with a routine misdemeanor (e.g., larceny, assault, or DWI). The state has additional evidence that would support pursuing a related felony charge instead (e.g., new information about the value of the stolen property, the severity of the injuries inflicted in the assault, or the defendant’s multiple prior convictions for DWI). The prosecutor and the defense attorney talk it over, and they reach a deal: the state will not bring the higher felony charge, but only if the defendant pleads guilty to the misdemeanor – right now, as charged, take it or leave it.
The defendant agrees and enters a guilty plea. Then, a few days later, the defendant gives notice of appeal to superior court for trial de novo on the misdemeanor. May the state now prosecute the felony charge in superior court?
This post walks through the legal arguments for and against it, and then offers a few suggestions on how the state can avoid getting caught in this trap in the first place, including one option whose persistent absence from North Carolina criminal practice really puzzles me: a basic appeal waiver.
It’s Tax Season… For Drugs
I spent a few years working on drug cases when I was a prosecutor, so I was generally aware that North Carolina has a set of laws that impose taxes on “unauthorized substances.” See G.S. 105-113.105 – 113. Just like cigarettes, cars, or blue jeans, these unauthorized substances are commodities that people buy and sell, so they are subject to taxation by the state.
I was also aware that, not surprisingly, virtually no one pays these taxes or obtains the appropriate “tax stamps” to put on their drugs and moonshine. Instead, the laws are used primarily as a mechanism to pursue civil forfeiture of a defendant’s assets after he or she is convicted of a drug offense.
But recently, I began to wonder – are these laws purely theoretical? Is it even possible for drug dealers to comply? Does the Department of Revenue keep big rolls of stamps behind the counter, like a post office? What would happen if someone walked into a Revenue office one day and said “hello, will you sell me some tax stamps for illegal substances, please?”
I wanted to find out, so that’s exactly what I did.
Part 2: Double Jeopardy and Beyond
For our last official criminal justice class, we heard from five more teams of students about their research projects. (At the students’ request, we also scheduled an extra evening session to watch the third best movie ever made about the law and lawyers—answer at the end of this post.) Once again, the students worked on a wide range of topics and, once again, I learned from the students. Here are some quick takeaways along with a brief discussion of one of the topics—double jeopardy, or more accurately, the absence of double jeopardy protections in the UK.
When a Defendant Agrees to Two Trials Instead of One, Can He Claim that Double Jeopardy Bars the Second?
A Virginia grand jury indicted Michael Currier for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon for his alleged involvement in stealing a safe containing guns and cash from another man’s home in March 2012. Currier’s prior convictions for burglary and larceny gave rise to the felon-in-possession charge. To avoid having evidence about those prior convictions introduced in connection with the new burglary and larceny charges, Currier (and the government) agreed to severance of the felon-in-possession charge so that it could be tried separately. The burglary and larceny charges were tried first, and Currier was acquitted. Currier then moved to dismiss the felon-in-possession charge, arguing that the second trial was barred by double jeopardy, or, alternatively, that the government should be precluded from introducing at that trial any evidence about the burglary and larceny for which he had just been acquitted. The trial court rejected Currier’s arguments, and he was tried and convicted of being a felon in possession of a firearm. Virginia’s appellate courts affirmed the conviction. The United States Supreme Court granted review and, last Friday, issued its opinion in the case.
State v. Courtney: Retrying the Defendant after Charges Have Been Dismissed
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?