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. Continue reading
Tag Archives: double jeopardy
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?
In State v. Schalow (Dec. 20, 2016), the trial court’s error in declaring a mistrial led to a successful claim of double jeopardy by the defendant and allowed him to avoid further prosecution for attempted murder. Schalow sheds light on the relatively obscure (at least to me) law of mistrials and double jeopardy. Continue reading →
When you can’t find what you’re looking for in North Carolina, you may have to extend your search out of state. Case in point: I’ve just discovered an opinion from the Minnesota Court of Appeals that answers the elusive question of how many aggravating factors apply if a person drives while impaired with more than one child in the car. And unlike some things you can only find in another state–like major league baseball and pot-laced gummy bears–you can bring this one home to the Old North State.
I recently taught a class of law students about criminal pleadings. We discussed proper pleadings and defective pleadings, and the State’s ability to bring new charges against a defendant after a case is dismissed due to a fatal defect in the pleading. It was an interesting conversation, and it prompted me to look into the matter a bit more. This post summarizes the law. Continue reading →
Litigants sometimes are surprised by circumstances in which a trial court’s ruling in a case is not capable of review on appeal. The court of appeals recognized one such situation earlier this week in State v. Kiselev, ___ N.C. App. ___ (May 19, 2015). Continue reading →
Committing a new criminal offense while on probation is a violation of probation. Nowadays it’s one of the only things for which a person may be revoked. Sometimes the parties wait to see whether a new criminal charge will result in a conviction before proceeding on it as a violation of probation. Sometimes they don’t. Either way, when you have two different courts (the probation court and the trial court) considering roughly the same issue (did this person commit a crime?), you run into issues like double jeopardy, collateral estoppel, and inconsistent results. Today’s post considers some of the possibilities. Continue reading →
The North Carolina Court of Appeals in State v. Mulder, 233 N.C. App. 82 (2014), held that punishing a defendant for felony speeding to elude based upon the aggravating factors of speeding and reckless driving while also punishing him separately for those same misdemeanor traffic offenses violated double jeopardy.
Facts. The facts in Mulder are disturbing. The defendant’s former girlfriend, Brenda Swann, obtained a domestic violence protective order against him when their relationship ended. While the order was in effect, the defendant went to Swann’s home and began to strike her car with a hammer. Swann’s son confronted the defendant, who then attempted to force his way into the house. Swann called the police, and the defendant left the premises. A law enforcement officer located the defendant driving in his car shortly afterwards and attempted to pull the defendant over. The defendant did not stop, and the officer continued to pursue him. The officer testified that while fleeing, the defendant was swerving “as if he was trying to hit . . . . innocent people on the highway.” Several other officers joined the chase, and the vehicles involved reached speeds of 100 miles per hour. The defendant swerved toward one officer’s car and eventually rammed into another officer’s vehicle. An officer then intentionally rammed the defendant’s driver’s side door to force him to stop. The officer approached the defendant’s car with his gun pointed at the defendant. He told the defendant to get out of the car. The defendant reached out of the window, slapped the gun, and said “shoot me, motherf*****.” Rather than complying with the defendant’s request, the officer tried to pull the defendant out of the car. While he was doing so, the defendant shifted the car into reverse and accelerated. The officer with the gun was hanging in the driver’s side window, and another officer was hanging in the passenger side window. The second officer reached into the car, put it into park and shut off the engine. The defendant continued to struggle and curse as he was pulled from the car and arrested.
Procedural History. The defendant was indicted for, among other crimes, speeding, reckless driving to endanger, and speeding to elude arrest. He was convicted of those and other crimes. He was sentenced to 6 to 8 months imprisonment for the consolidated offenses of speeding, reckless driving, speeding to elude arrest, failure to heed light or siren, failure to maintain lane control, and littering. (He received longer sentences for his five convictions of assault with a deadly weapon on a government officer.)
The defendant appealed, arguing that the trial court erred in failing to arrest judgment on the speeding and reckless driving convictions because each of those offenses is a lesser-included offense of felony speeding to elude, an offense that was raised from a misdemeanor to a felony on the basis that the defendant was speeding and driving recklessly. Imposing punishment for all three offenses, the defendant contended, violated principles of double jeopardy.
Court of Appeals’ Analysis. The appellate court applied the Blockburger test, which inquires whether each offense requires proof of a fact that the other does not, to determine whether speeding and reckless driving were the “same offense” as felony speeding to elude for purposes of double jeopardy.
The elements of misdemeanor speeding to elude arrest under G.S. 20-141.5(a) are: (1) operating a motor vehicle (2) on a street, highway, or public vehicular area (3) while fleeing or attempting to elude a law enforcement officer (4) who is in the lawful performance of his duties. G.S. 20-141.5(a). If the State proves two of eight aggravating factors set forth in G.S. 20-141.5(b), the offense is elevated to a felony. The two factors found by the jury in Mulder were (1) speeding more than 15 miles per hour over the legal speed limit and (2) reckless driving as proscribed by G.S. 20-140.
The defendant also was convicted of speeding under G.S. 20-141(j1), which prohibits (1) driving (2) a vehicle (3) on a highway (4) more than 15 miles per hour over the speed limit or over 80 miles per hour and reckless driving in violation of G.S. 20-140(b), which prohibits (1) driving (2) a vehicle (3) on a highway or public vehicular area (4) without due caution and circumspection and (5) at a speed or in a manner so as to endanger or be likely to endanger any person or property.
The court reasoned that the factors used to elevate speeding to elude to a felony contained the same elements as the lesser traffic offenses of which the defendant also was convicted. It then considered whether these factors were properly considered elements of felony speeding to elude.
The State characterized the factors as sentencing enhancements rather than elements. The court of appeals rejected that distinction, noting that since the factors increased the maximum punishment a defendant faced, they were elements for purposes of the Sixth Amendment right to a jury trial. The court of appeals cited the U.S. Supreme Court’s plurality opinion in Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003), for the proposition that that there was no principled reason to distinguish between an offense for purposes of the Sixth Amendment’s jury-trial guarantee and an offense for purposes of the Fifth Amendment’s double jeopardy clause. The Mulder court concluded, based on this authority, that the lesser included offenses were the “same offense” under Blockburger as felony speeding to elude.
Legislative Intent. The court then proceeded to the next step of the double jeopardy analysis—determining the legislature’s intent. When a defendant is punished twice in the same trial for a single offense, relief under double jeopardy principles is only available if the legislature did not intend for multiple punishments to be imposed. In ascertaining the legislature’s intent, the court considered its purpose in criminalizing speeding under G.S. 20-141 and reckless driving under G.S. 20-140. Both statutes were enacted to protect against harm to persons and property and in the interest of public safety. The same concerns apparently motivated the legislature to include these factors among those elevating speeding to elude to felony status. The court considered the codification of each offense in related sections of Chapter 20 to further evidence the General Assembly’s intent to permit alternative, but not cumulative, punishments for lesser traffic offenses used to establish felony speeding to elude.
Thus, the court held that the defendant was unconstitutionally subjected to double jeopardy when he was convicted of speeding and reckless driving in addition to felony speeding to elude based on speeding and reckless driving. The court arrested judgment on the speeding and reckless driving convictions. The court also remanded for resentencing, even though the speeding and reckless driving convictions were consolidated with the felony speeding to elude conviction and the defendant was sentenced to a presumptive range sentence. The court said that it could not assume that the trial court’s consideration of the speeding and reckless driving convictions had no effect on the sentence imposed.
Broader Significance. Mulder almost certainly means that lesser criminal offenses, such as driving while license revoked, that aggravate a sentence for impaired driving under G.S. 20-179 are the same offense for double jeopardy purposes. What is less certain is whether the legislature intended to authorize cumulative punishment in the impaired driving context. I reasoned here that it likely did, but the factors considered in Mulder, namely the purpose of the statutes and place of codification, points to a different conclusion.
Mulder may also revive the Hurt Blocker, a phrase Jamie coined in discussing the court of appeals’ conclusion in State v. Hurt, 208 N.C. App. 1, 702 S.E.2d 82 (2010), rev’d on other grounds, ___ N. C. ___, 743 S.E.2d 173 (2013) (per curiam), that the Confrontation Clause of the Sixth Amendment to the U.S. Constitution applied to the proof at sentencing of sentencing factors that increase the defendant’s sentence beyond the statutory maximum. Hurt was reversed by the supreme court on the grounds that the defendant’s confrontation rights were not violated by the testifying experts’ reliance on reports prepared by experts who did not testify at trial. ___ N.C. at ___; 743 S.E.2d at 173 (per curiam).
If you foresee other developments (or fall out, depending upon your perspective) following Mulder, please share your thoughts.
Last week, a Florida jury acquitted George Zimmerman of all charges in connection with the killing of Trayvon Martin. Some are now calling for Zimmerman to be charged federally. In fact, according to the New York Times, “[t]he Justice Department said Sunday that it was restarting its investigation” into the matter. However, I seriously doubt that federal charges are likely to be forthcoming, for the reasons below.
No double jeopardy problem. It’s important to note at the outset that a federal prosecution is possible, in the sense that there’s no constitutional barrier to it. See, e.g., Heath v. Alabama, 474 U.S. 82 (1985) (noting that under the “dual sovereignty doctrine,” when a single act violates the laws of two different sovereigns, both may prosecute, and that “the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government”). But I don’t think a federal prosecution is probable, for two reasons.
No federal charge fits the facts. First, I’m not aware of a charge that fits the facts. There are two federal crimes that have been widely discussed as possible charges, and both strike me as seriously uphill battles for the government.
- Deprivation of civil rights. Under 18 U.S.C. § 242, it is a crime for a person “under color of any law” to deprive another of “any rights . . . protected by the Constitution or laws of the United States . . . by reason of [the person’s] color, or race.” Perhaps one could argue that Zimmerman deprived Martin of life and liberty without due process. But did he act “under color of any law”? Because of that provision, this statute is used almost exclusively to prosecute law enforcement officers and other public officials. In an important civil rights era case, the Supreme Court ruled that the statute also covers private persons who act in concert with state actors. United States v. Price, 383 U.S. 787 (1966) (holding that men who coordinated with a sheriff to kill civil rights activists were properly charged under this statute). But Zimmerman acted on his own, not together with police.
- Hate crime. Under 18 U.S.C. § 249, it is a crime willfully to “cause bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person.” This charge might be a slightly better fit, because there is some evidence that Zimmerman’s initial perception of Martin was influenced by Martin’s race. However, the Florida jury appears to have concluded that the reason Zimmerman shot Martin was that Martin was punching him in the face and pounding his head against the pavement. In other words, the reason that Zimmerman “cause[d] bodily injury to” Martin was self-defense, not Martin’s race. A federal jury might see things differently, but the result of the Florida trial suggests circumspection.
The Petite policy may not allow further prosecution. Even if federal prosecutors can make out a federal case against Zimmerman, a second barrier to prosecution is the Dual and Successive Prosecution Policy followed by the United States Department of Justice and codified at section 9-2.031 of the United States Attorneys’ Manual. Because the policy was mentioned by the Supreme Court in Petite v. United States, 361 U.S. 529 (1960), it is widely known as the “Petite policy.”
Generally, the policy provides that before a federal prosecution may be brought based on “substantially the same act(s)” that formed the basis of a state prosecution, the Department must conclude that a “substantial federal interest” was “left . . . demonstrably unvindicated” by the state prosecution. The fact that Zimmerman was acquitted does not mean that the federal interest was “unvindicated” – the policy provides that “[i]n general, the Department will presume that a prior prosecution, regardless of result, has vindicated the relevant federal interest.”
There are exceptions, such as for corrupt state proceedings or for the “unavailability of significant evidence,” but it isn’t clear that any of the exceptions would apply in this case. And while the policy is a prudential one that the Department has the power to change, I doubt that the Attorney General would change a decades-old policy to facilitate a single prosecution.
Conclusion. I suspect we’ve reached the end of the road as far as criminal charges against Zimmerman. Of course, a civil suit by the Martin family may be forthcoming and would present entirely different considerations.