State v. Courtney

IN THE SUPREME COURT OF NORTH CAROLINA

No. 160PA18

Filed 16 August 2019

STATE OF NORTH CAROLINA
v.
JAMES HAROLD COURTNEY, III

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
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Opinion of the Court

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

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Opinion of the Court

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 20111, 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

1 The parties’ filings disagree on which day in April 2011 the State entered its
dismissal. However, the copy of the form included in the record appears to be dated 14 April
2011, which is also the date referenced in the Court of Appeals opinion. Any disagreement
over the date does not impact the result of the case.

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Opinion of the Court

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

2 McFarland was also indicted for the murder, and, as noted by the Court of Appeals,
his trial was apparently scheduled to take place after defendant’s trial. However, the record
is silent as to the outcome of McFarland’s trial.

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Opinion of the Court

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

3 Defendant’s motion to dismiss based on speedy trial grounds was denied in open
court on 31 October 2016, and an order with findings of fact and conclusions of law was filed
on 3 November 2016.

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Opinion of the Court

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

4 Defendant raised three other issues before the Court of Appeals. Defendant argued,
in the alternative, that the trial court erred in denying his motion to dismiss based on a
violation of his right to a speedy trial. In addition, defendant argued that certain evidence
was erroneously admitted at trial and that his statutory right not to be tried within a week
of his arraignment was violated. Because the Court of Appeals found defendant’s double
jeopardy issue to be dispositive, it did not address his remaining three arguments, none of
which are the subject of this appeal. Courtney, 817 S.E.2d at 416.

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Opinion of the Court

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

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Opinion of the Court

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.

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Opinion of the Court

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).

5 Because we recognize that the State may proceed with a retrial when a defendant
secures the relief of a new trial after an original conviction is vacated on appeal, the dissent’s
assertion that our holding “would also apply to cases reversed on appeal” is incorrect. Our
holding is limited to the facts presented here.

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Opinion of the Court

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

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Opinion of the Court

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.

6 At oral argument, counsel for the State instead argued that jeopardy “unattaches,”
a phenomenon that the State specifically disclaims in its brief. Compare New Brief for the
State at 8, State v. Courtney, No. 160PA18 (N.C. November 21, 2018) (“Although the court
below believed the State was contending jeopardy ‘unattached’ with the mistrial, the State’s
actual argument is that, based on case law from this Court, the mistrial created the legal
fiction that jeopardy never attached in the first place.”) (citation and footnote omitted)
(emphasis in original) with Oral Argument at 55:08–55:18, 57:36–57:51, State v. Courtney,
No. 160PA18 (N.C. May 15, 2019) (“I would ask this Court to look at this Court’s holding in
State v. Lachat, which found that when there is a mistrial, jeopardy unattaches.”; “After a
hung jury, the jeopardy in that situation unattaches and then when the State made this
dismissal, the State was in a pretrial procedure at that point, and therefore the State could
bring back these charges and retry the defendant.”) (emphases added). While we primarily
focus here on the State’s contention in its brief that jeopardy never attached, we also find no
legal support for its alternative formulation that jeopardy “unattaches” following a hung jury
mistrial. Both arguments—that jeopardy never attached and that jeopardy unattached—are
foreclosed by the continuing jeopardy principle embraced by the United States Supreme
Court in Richardson.

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Opinion of the Court

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

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Opinion of the Court

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

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Opinion of the Court

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

7 The dissenting justice in Richardson also acknowledged the Court’s adoption of the
continuing jeopardy principle. Writing in dissent in Richardson, Justice Brennan argued that
the majority’s approach “improperly ignores the realities of the defendant’s situation and
relies instead on a formalistic concept of ‘continuing jeopardy.’ ” Richardson, 468 U.S. at 327,
104 S. Ct. at 3087, 82 L. Ed. 2d at 252 (Brennan, J., concurring in part and dissenting in part)
(emphasis added). See also Yeager v. United States, 557 U.S. 110, 129, 129 S. Ct. 2360, 2372,
174 L. Ed. 2d 78, 94 (2009) (Scalia, J., dissenting) (“This Court has extended the protections
of the Double Jeopardy Clause by holding that jeopardy attaches earlier: at the time a jury
is empanelled and sworn.. . . . [D]ischarge of a deadlocked jury does not ‘terminat[e] the
original jeopardy.’ Under this continuing-jeopardy principle, retrial after a jury has failed to
reach a verdict is not a new trial but part of the same proceeding.”) (emphasis added) (footnote
omitted) (citations omitted).

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Opinion of the Court

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.

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Opinion of the Court

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

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Opinion of the Court

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

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Opinion of the Court

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 jeopardy8 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

8 Lachat was not decided under the Double Jeopardy Clause of the United States
Constitution but rather “on adequate and independent grounds of North Carolina law.” 317
N.C. at 77, 343 S.E.2d at 874.

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Opinion of the Court

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

9 In its brief, the State also references State v. Sanders, 347 N.C. 587, 496 S.E.2d 568
(1998), the most recent case from this Court to quote Tyson’s “no trial” language, though as
with Lachat, it provides no analysis of the case. In Sanders, we upheld the propriety of a trial
court’s declaration of a mistrial due to the “manifest necessity” of jury misconduct in a
sentencing proceeding, such that the defendant’s double jeopardy rights would not be violated
by a subsequent sentencing proceeding. Id. at 599–601, 496 S.E.2d at 576–77. In setting forth
the reasoning for our conclusion, we discussed the right of a defendant to be free from double
jeopardy and noted that this right is not violated when a mistrial is declared due to manifest
necessity. Id. at 599, 496 S.E.2d at 576. Then we stated that “[w]hen a mistrial has been
declared properly, ‘in legal contemplation there has been no trial.’ ” Id. (quoting Tyson, 138
N.C. at 629, 50 S.E. at 456). As is the case with Tyson and Lachat, Sanders includes no
statement that jeopardy is deemed, following the mistrial, never to have attached in the first
place. Like Lachat, Sanders also post-dated Richardson, which would have foreclosed any
holding that jeopardy did not remain attached following a mistrial.

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Opinion of the Court

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

10 Although the State contends this Court already adopted its proffered legal fiction as
a holding in Lachat, it also seeks to highlight the usefulness of legal fictions by analogizing
this situation before us to other situations where legal fictions have been employed. In a
footnote on legal fictions in its brief, the State contends that “[h]ere, resetting the proceedings
after a hung jury mistrial to pre-trial status is not all that different than other legal fictions
such as nunc pro tunc orders and the relation-back doctrine.” One of the cases the State cites
in this discussion is Costello v. Immigration & Naturalization Serv., 376 U.S. 120, 130, 84 S.
Ct. 580, 586, 11 L. Ed. 2d 559, 565 (1964). But Costello declined to apply the relation-back
doctrine in the manner urged by the government in that case and disparaged the legal fiction
concept in the process. Id. at 130, 84 S. Ct. at 586, 11 L. Ed. 2d 559, 565–66 (“The relation-
back concept is a legal fiction at best, and even the respondent concedes that it cannot be
‘mechanically applied.’ . . . This Court declined to apply the fiction in a deportation context
in [a prior] case, and we decline to do so now.”). The Court further stated that, “[i]n this area
of the law, involving as it may the equivalent of banishment or exile, we do well to eschew
technicalities and fictions and to deal instead with realities.” Id. at 131, 84 S. Ct. at 587, 11
L. Ed. 2d at 566.

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 STATE V. COURTNEY

Opinion of the Court

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 placed him in jeopardy a second

time in violation of both the federal and state constitutions.

II. Voluntary Dismissal Terminating Jeopardy

Defendant concedes that the State, under the doctrine of continuing jeopardy,

could have retried him following the mistrial without violating the Double Jeopardy

Clause. He argues, however, that the State’s unilateral decision to enter a voluntary

dismissal of the murder indictment under N.C.G.S. § 15A-931 after jeopardy had

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Opinion of the Court

attached was an event that terminated defendant’s original jeopardy, thus preventing

the State from subsequently retrying him. We hold that where, as here, the State

dismisses a charge under section 15A-931 after jeopardy has attached, a defendant’s

right to be free from double jeopardy under the federal and state constitutions is

violated if the State initiates a subsequent prosecution on the same charge. Thus, we

affirm the holding of the Court of Appeals that the State’s dismissal of a charge under

section 15A-931 is binding on the state and is tantamount to an acquittal, making it

a jeopardy-terminating event for double jeopardy purposes.

North Carolina has two statutes governing the State’s ability to voluntarily

dismiss charges, either with or without leave to reinstate those charges. Section 15A-

931 of the General Statutes (“Voluntary dismissal of criminal charges by the State.”)

reads as follows:

Except as provided in G.S. 20-138.4,11 the prosecutor may
dismiss any charges stated in a criminal pleading including
those deferred for prosecution 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. The clerk
must record the dismissal entered by the prosecutor and
note in the case file whether a jury has been impaneled or
evidence has been introduced.

N.C.G.S. § 15A-931(a) (2017).

11 The statute referenced herein applies only to implied-consent and impaired driving
with license revoked offenses and requires that a voluntary dismissal by the State be
accompanied by detailed reasons and other information related to the case. N.C.G.S. § 20-
138.4(a)(1), (b) (2017).

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 STATE V. COURTNEY

Opinion of the Court

By contrast, N.C.G.S. § 15A-932 (“Dismissal with leave when defendant fails

to appear and cannot be readily found or pursuant to a deferred prosecution

agreement.”) allows a prosecutor to dismiss charges with leave to reinstate them

under specific circumstances. Under section 15A-932,

The prosecutor may enter a dismissal with leave for
nonappearance when a defendant:

(1) Cannot be readily found to be served with an
order for arrest after the grand jury had indicted
him; or

(2) Fails to appear at a criminal proceeding at which
his attendance is required, and the prosecutor
believes the defendant cannot be readily found.

N.C.G.S. § 15A-932(a) (2017) and

The prosecutor may enter a dismissal with leave pursuant
to a deferred prosecution agreement entered into in
accordance with the provisions of Article 82 of this
Chapter.

Id. § 15A-932(a1). A prosecutor may reinstate charges dismissed with leave under

these provisions upon apprehension of a defendant who previously could not be found

or if a defendant fails to comply with the terms of a deferred prosecution agreement.

Id. § 15A-932(d), (e).

Section 15A-932 establishes a few specifically enumerated circumstances in

which the State may dismiss a charge with leave to refile, such that a dismissal under

this statute does not necessarily contemplate the end of the prosecution. All other

voluntary dismissals entered by the State are governed by section 15A-931. In State

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Opinion of the Court

v. Lamb, 321 N.C. 633, 641, 365 S.E.2d 600, 604 (1988) we contrasted the effect of

these two provisions, nothing that section 15A-931 provides “a simple and final

dismissal which terminates the criminal proceedings under that indictment” (citing

N.C.G.S. § 15A-931 official cmt.) while a dismissal under section 15A-932 “results in

removal of the case from the court’s docket, but the criminal proceeding under the

indictment is not terminated.” (emphasis in original). Before a defendant has been

tried, “[s]ection 15A-931 does not bar the bringing of the same charges upon a new

indictment,” id. but, even in a pre-attachment context, the key characteristic of a

dismissal entered under 15A-931 is its finality. In the context of an analysis of the

now-repealed Speedy Trial Act in Lamb, we noted that the finality provided by the

statute precluded consideration of any time that accrued between the time when a

first indictment was dismissed under section 15A-931 and a new indictment was

secured for purposes of a statutory speedy trial claim; by contrast, no such

consequence resulted from a section 15A-932 dismissal.12

It appears that the legislature contemplated the possibility that a dismissal

under section 15A-931 might have double jeopardy implications and, further, that the

State might enter a voluntary dismissal sometime other than during the middle of a

12 In Lamb, the State entered a pretrial dismissal of the indictment “[w]ith [l]eave
[p]ending the completion of the investigation.” 321 N.C. at 635, 365 S.E.2d at 601. However,
because none of the circumstances described in section 15A-932 actually occurred, we
concluded that the “with leave” language was merely surplusage and that the dismissal in
fact was entered under section 15A-931. Id. at 642, 365 S.E.2d at 604–05.

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Opinion of the Court

trial. Section 15A-931(a) dictates that “[t]he clerk must record the dismissal entered

by the prosecutor and note in the case file whether a jury has been impaneled or

evidence has been introduced” and directs that the State may dismiss a charge “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.” (Emphases added). The State suggested

at oral argument that the statutory language contemplating the attachment of

jeopardy was intended only to ward against the double jeopardy implications of a

voluntary dismissal entered by the State mid-trial. But this contention is undermined

by the specific language in the statute authorizing entry of a dismissal before a trial,

during a trial, or at any time.

While the text of section 15A-931 fully supports the conclusion that the

legislature intended a dismissal under this section to have such a degree of finality

that double jeopardy protections would come into play, this reading finds further

support in the official commentary to the statute. See State v. Jones, 819 S.E.2d 340,

344 (N.C. 2018) (“The commentary to a statutory provision can be helpful in some

cases in discerning legislative intent.” (quoting Parsons v. Jefferson-Pilot Corp., 333

N.C. 420, 425, 426 S.E.2d 685, 689 (1993)); State v. Williams, 315 N.C. 310, 327, 338

S.E.2d 75, 85 (1986) (“Although the official commentary was not drafted by the

General Assembly, we believe its inclusion in The Criminal Procedure Act is some

indication that the legislature expected and intended for the courts to turn to it for

guidance when construing the Act.”).

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 STATE V. COURTNEY

Opinion of the Court

The Criminal Code Commission provided the following commentary to section

15A-931:

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 the Commission here
provides 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.

N.C.G.S. § 15A-931 (2017) (official cmt.) (emphasis added). The explicit statement in

the commentary that the bringing of new charges “would be prevented . . . if jeopardy

had attached when the first charges were dismissed,” id., provides further insight

into the legislature’s intent for a 15A-931 dismissal. This commentary suggests that

such a dismissal would be viewed as a jeopardy-terminating event for purposes of the

Double Jeopardy Clause.

In reaching its conclusion that the State’s dismissal of defendant’s murder

charge was a terminating event that prevented him from being retried, the Court of

Appeals “f[ou]nd further guidance from [this] Court’s explanation and application of

the ‘State’s election’ rule.” State v. Courtney, 817 S.E.2d 412, 420 (N.C. Ct. App. 2018)

(citing State v. Jones, 317 N.C. 487, 346 S.E.2d 657 (1986)). Like the panel below, we

also find the rule discussed in Jones to be instructive here. In Jones, this Court

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Opinion of the Court

reviewed the case of a defendant whose indictment arguably13 was sufficient to charge

him with first-degree rape but who was arraigned only on the charge of second-degree

rape. Jones, 317 N.C. at 491–92, 346 S.E.2d at 659–60. No discussion at all of a first-

degree rape charge occurred until after the close of all evidence, when the prosecutor

proposed an instruction on first-degree rape. Jones, 317 N.C. at 491, 346 S.E.2d at

659. Jones was ultimately convicted of first-degree rape, id., and appealed his

conviction to this Court. In our decision vacating defendant’s conviction for first-

degree rape, we held that

by unequivocally arraigning the defendant on second-
degree rape and by failing thereafter to give any notice
whatsoever, prior to the jury being impaneled and jeopardy
attaching, of an intent instead to pursue a conviction for
first-degree rape arguably supported by the short-form
indictment, the State made a binding election not to pursue
the greater degree of the offense, and such election was
tantamount to an acquittal of first-degree rape.

Id. at 494, 346 S.E.2d at 661 (emphasis in original).14

While the State correctly notes that this case presents a different circumstance

from that detailed in Jones, it does not adequately explain why a prosecutor’s

13 The Jones Court did not reach the issue of whether or not the indictment, which
contained a sufficient description of first-degree rape in the body of the indictment but also
contained a caption and statutory citation that both referenced second-degree rape, would
have been sufficient to charge first-degree rape absent the State’s post-jeopardy election. 317
N.C. at 493, 346 S.E.2d at 660–61.
14 In reaching our conclusion in Jones that the State had made a binding election to

pursue only the charge of second-degree rape, we also noted that the State had “that charge
[for second-degree rape] entered of record in the clerk’s minutes of arraignment.” Id. at 493,
346 S.E.2d at 660-61.

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 STATE V. COURTNEY

Opinion of the Court

unilateral, post-attachment decision to terminate the entire prosecution should be

less binding on the State than its post-attachment decision to pursue a lesser charge.

By making the unilateral choice to enter a final dismissal of defendant’s murder

charge after jeopardy had attached, the State made a binding decision not to retry

the case. Thus, we conclude that the State’s post-attachment dismissal of defendant’s

indictment was tantamount to, or the functional equivalent of, an acquittal, which

terminated the original jeopardy that had continued following the declaration of a

hung jury mistrial in defendant’s case.

Conclusion

At his first trial, defendant was unquestionably placed in jeopardy, which

continued after his first trial ended with a hung jury mistrial. As explained by the

continuing jeopardy doctrine, the mistrial was not a terminating event that deprived

the State of the opportunity to retry defendant. Rather, as defendant acknowledges,

the State at that time could have tried defendant again on the existing charge without

violating his double jeopardy rights. Instead of exercising that opportunity to retry

defendant, the State entered a final dismissal of the charge, unilaterally and

irrevocably terminating the prosecution and, with it, defendant’s original jeopardy.

Under the Double Jeopardy Clause, the State was then barred from retrying

defendant for the same crime.15

15Of course there may have been crimes other than lesser included offenses of murder
with which defendant could have been charged arising from the same incident. See State v.

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 STATE V. COURTNEY

Opinion of the Court

Because defendant’s jeopardy remained attached following the mistrial

declaration in his first trial and was terminated when the State subsequently entered

a dismissal of the charge under N.C.G.S. § 15A-931, we conclude that defendant’s

second prosecution was barred by the Double Jeopardy Clause and that the trial court

erred in denying defendant’s motion to dismiss his 2015 murder indictment on double

jeopardy grounds. Thus, we affirm the Court of Appeals’ decision vacating defendant’s

murder conviction.

AFFIRMED.

Wilson, 338 N.C. 244, 261, 449 S.E.2d 391, 401 (1994).

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 Justice NEWBY dissenting.

The general principles governing double jeopardy provide that when a trial

ends in a mistrial the State can retry that defendant on the same charges.

Procedurally, the subsequent new trial has all the same stages as the original one,

including a pretrial stage. A dismissal during the pretrial stage does not prevent a

subsequent re-indictment and retrial. The majority ignores these general principles

and, by its holding, makes North Carolina an outlier in the country. Guided by a

misapplication of the concept of continuing jeopardy, the majority effectively

eliminates a complete, new trial after a mistrial (or reversal on appeal), removing any

pretrial proceedings. Under its theory, once jeopardy attaches with the first trial, it

continues, affecting everything that occurs thereafter. The majority’s interpretation

of continuing jeopardy means any motion or dismissal after a mistrial is treated as if

made midtrial. Thus, after a mistrial, a pretrial dismissal is deemed an acquittal.

Because of the majority’s hyper-technical application of its view of the continuing

jeopardy theory, defendant’s murder conviction is vacated, and he goes free. The

fundamental right against being tried twice for the same crime does not require this

outcome.

The State’s dismissal here does not address defendant’s guilt or innocence and

therefore is not the functional equivalent of a jury verdict of acquittal. Regardless of
 STATE V. COURTNEY

Newby, J., dissenting

which abstract legal theory of jeopardy informs this Court, it should not stray from

the fundamental concepts governing mistrials and double jeopardy. The mistrial here

returned the criminal proceedings to a pretrial status and allowed for a dismissal of

the charge without prejudice. This approach is consistent with the long-established

precedent of the Supreme Court of the United States and this Court that, after a

mistrial, the trial process “proceed[s] anew,” United States v. Scott, 437 U.S. 82, 92,

98 S. Ct. 2187, 2194, 57 L. Ed. 2d 65, 75 (1978), as if “there has been no trial,” State

v. Tyson, 138 N.C. 627, 629, 50 S.E. 456, 456 (1905). Thereafter, defendant was

properly re-indicted and retried, resulting in the jury convicting defendant of murder;

that conviction is now judicially erased. Allowing the State to take a pretrial

dismissal after a mistrial and subsequently to retry defendant does not offend the

safeguard against double jeopardy. I respectfully dissent.

I. Facts and Procedural History

In 2009 the State charged defendant with the first-degree murder of James

Deberry based in part on Deberry’s dying statement after being shot. On 6 December

2010, defendant’s trial began. Three days later, the trial court declared a mistrial

after the jury was unable to reach a verdict. On 16 December 2010, the trial court

issued a judgment form noting “Mistrial Con’t to next Status Hearing for State to

decide if case to be retried.”

On 14 April 2011, the State dismissed the murder charge against defendant by

filing the standard Form AOC-CR-307 in accordance with N.C.G.S. § 15A-931,

2
 STATE V. COURTNEY

Newby, J., dissenting

circling “Dismissal” in handwriting, rather than “Notice of Reinstatement,” on the

form. The form has no checkbox to indicate a mistrial, and the State selected the

fourth checkbox option “Other: (specify),” and specified below “hung jury, State has

elected not to re-try case.” The State noted that, in the mistrial, “A jury has not been

impaneled nor and has [sic] evidence been introduced.” Notably, the State did not

check any box on the form that could signify a finding of defendant’s guilt or innocence

despite having these checkbox options: “No crime is charged”; “insufficient evidence

to warrant prosecution”; and defendant “agreed to plead guilty.”

The State obtained more evidence linking defendant to Deberry’s death and,

on 6 July 2015, a grand jury issued a new indictment against defendant for first-

degree murder. Before his second trial, defendant unsuccessfully moved to dismiss

the new indictment on double jeopardy grounds. On 7 November 2018, the jury

convicted defendant of second-degree murder.

On appeal defendant conceded, and the majority agrees, that the State could

retry him on the mistried murder charge without transgressing double jeopardy

protections. The Court of Appeals held, and now a majority of this Court holds, that

the prosecutor’s post-mistrial voluntary dismissal of the original murder indictment

possessed “the same constitutional finality and conclusiveness as an acquittal.” State

v. Courtney, 817 S.E.2d 412, 414 (N.C. Ct. App. 2018). Thus, defendant’s second trial

put him in jeopardy twice for the same charge in violation of the principles of double

jeopardy.

3
 STATE V. COURTNEY

Newby, J., dissenting

In affirming the Court of Appeals, the majority holds

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.

In its view, once jeopardy attaches with the empaneling of the first jury, jeopardy

infects each aspect of the proceeding thereafter, even after a mistrial. Thus, the

majority “hold[s] that where, as here, the State dismisses a charge under section

15A-931 after jeopardy has attached, a defendant’s right to be free from double

jeopardy under the federal and state constitutions is violated if the State initiates a

subsequent prosecution on the same charge.” Of note, its analysis would also apply

to cases reversed on appeal. The majority attempts to support this position by

misapplying precedent from the Supreme Court of the United States and this Court.

The majority’s hyper-technical application of the “continuing jeopardy” theory

is flawed because it does not ask the correct fundamental question: After a mistrial,

are the parties returned to the same position procedurally as before the original trial?

If so, there is a procedural pretrial period during which the State can take a voluntary

dismissal. At this stage, no jury is currently empaneled; various pretrial proceedings

must occur. Precedent from the Supreme Court of the United States and this Court

indicates that, after a mistrial, the proceeding returns to a pretrial status. Thus, a

4
 STATE V. COURTNEY

Newby, J., dissenting

dismissal following a mistrial and before a new jury is empaneled is a pretrial

dismissal which is not akin to an acquittal.

The majority’s approach confuses defendant with “an acquitted defendant

[who] may not be retried” regardless of the reason for the acquittal. Arizona v.

Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 829, 54 L. Ed. 2d 717, 726 (1978)

(emphasis added). Defendant’s first trial ended with a hung jury, resulting in a

mistrial. A hung jury is not an acquittal, United States v. Perez, 22 U.S. (9 Wheat.)

579, 580, 6 L. Ed. 165, 165 (1824), nor is a pretrial dismissal an acquittal. Retrying

defendant on a new indictment does not violate the prohibition against double

jeopardy.

II. Governing Principles of Double Jeopardy

The Fifth Amendment of the United States Constitution contains a guarantee

that no person shall “be subject for the same offence to be twice put in jeopardy of life

or limb . . . .” U.S. Const. amend. V; see also Benton v. Maryland, 395 U.S. 784, 794–

96, 89 S. Ct. 2056, 2062–63, 23 L. Ed. 2d 707, 716–17 (1969) (incorporating the Double

Jeopardy Clause to the States by the Fourteenth Amendment and noting its

“fundamental nature” rooted in the English common law and dating back to the

Greeks and Romans); State v. Brunson, 327 N.C. 244, 247, 393 S.E.2d 860, 863 (1990)

(recognizing the law of the land clause of the North Carolina Constitution as affording

5
 STATE V. COURTNEY

Newby, J., dissenting

the same protections as the Double Jeopardy Clause of the federal constitution).

“Our double jeopardy case law is complex, but at its core, the Clause means

that those acquitted or convicted of a particular ‘offence’ cannot be tried a second time

for the same ‘offence.’ ” Gamble v. United States, 139 S. Ct. 1960, 1964 (2019) (quoting

U.S. Const. amend. V); see id. at 1966–67 (discussing the “abstract principle” that

double jeopardy allows two punishments for “[a] single act” under the political theory

of dual sovereignty); see also Green v. United States, 355 U.S. 184, 186–87, 78 S. Ct.

221, 223, 2 L. Ed. 2d 199, 204 (1957) (recognizing “former” or “double jeopardy” as

“designed to protect an individual from being subjected to the hazards of trial and

possible conviction more than once for an alleged offense” (citing 4 William

Blackstone, Commentaries *335)).

The underlying idea, one that is deeply ingrained in at
least the Anglo-American system of jurisprudence, 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.

Id. at 187–88, 78 S. Ct. at 223, 2 L. Ed. 2d at 204. Further, double jeopardy principles

work “to preserve the finality of judgments.” Crist v. Bretz, 437 U.S. 28, 33, 98 S. Ct.

2156, 2159, 57 L. Ed. 2d 24, 30 (1978).

“[A] defendant is placed in jeopardy in a criminal proceeding once the

defendant is put to trial before the trier of the facts, whether the trier be a jury or a
6
 STATE V. COURTNEY

Newby, J., dissenting

judge.” United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 554, 27 L. Ed. 2d 543,

553 (1971). Thus, jeopardy generally attaches “when the jury is empaneled and

sworn.” Crist, 437 U.S. at 35, 98 S. Ct. at 2161, 57 L. Ed. 2d at 553. “Without risk of

a determination of guilt, jeopardy does not attach, and neither an appeal nor further

prosecution constitutes double jeopardy.” Serfass v. United States, 420 U.S. 377, 391–

92, 95 S. Ct. 1055, 1064, 43 L. Ed. 2d 265, 276 (1975). Thus, “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).

Hence, an acquittal is final even if obtained erroneously. See Green, 355 U.S.

at 188, 192, 78 S. Ct. at 223–24, 226, 2 L. Ed. 2d at 204, 207. Even so, “an ‘acquittal’

cannot be divorced from the procedural context”; it has “no significance . . . unless

jeopardy has once attached and an accused has been subjected to the risk of

conviction.” Serfass, 420 U.S. at 392, 95 S. Ct. at 1065, 43 L. Ed. 2d at 276. An

acquittal, by its very definition, requires some finding of innocence and “actually

represents a resolution, correct or not, of some or all of the factual elements of the

offense charged.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.

Ct. 1349, 1355, 51 L. Ed. 2d 642, 651 (1977). Therefore, jeopardy will always

terminate following a defendant’s acquittal, regardless of whether the acquittal

7
 STATE V. COURTNEY

Newby, J., dissenting

originated from a jury or judge. See Evans v. Michigan, 568 U.S. 313, 328–29, 133 S.

Ct. 1069, 1080–81, 185 L. Ed. 2d 124, 140 (2013).

Generally, a conviction or guilty plea likewise brings finality if it represents

the final judgment “with respect to the guilt or innocence of the defendant.” Burks v.

United States, 437 U.S. 1, 15, 98 S. Ct. 2141, 2149, 57 L. Ed. 2d 1, 12 (1978). The

State cannot retry a convicted defendant in pursuit of harsher punishment. See

Green, 355 U.S. at 190–91, 78 S. Ct. at 225–226, 2 L. Ed. 2d at 205–06 (discussing

when the State is precluded from retrying on a greater offense). For the same reason,

double jeopardy principles operate to defeat prosecutorial efforts to dismiss a case

midtrial in hope of procuring a more favorable jury. Once jeopardy attaches in a trial,

if the jury is wrongfully discharged without defendant’s consent, he cannot be tried

again with a different jury on the same charges. Id. at 188, 78 S. Ct. at 224, 2 L. Ed.

2d at 204 (“This prevents a prosecutor or judge from subjecting a defendant to a

second prosecution by discontinuing the trial when it appears that the jury might not

convict.”); see also Gori v. United States, 367 U.S. 364, 369, 81 S. Ct. 1523, 1526–27,

6 L. Ed. 2d 901, 905 (1961).

Nonetheless, the law provides certain exceptions to the strict application of the

bare text of the Fifth Amendment. For example, the protection against double

jeopardy “does not bar reprosecution of a defendant whose conviction is overturned

on appeal.” Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S. Ct. 1805,

1813, 80 L. Ed. 2d 311, 324 (1984). Some cases discussing this principle rely on the

8
 STATE V. COURTNEY

Newby, J., dissenting

theory of “continuing jeopardy” to justify imposing a new trial following a defendant’s

successful appeal. See, e.g., id. at 309, 312, 104 S. Ct. at 1814, 1815, 80 L. Ed. 2d at

325, 327 (opining that jeopardy stays on a single and continuous course throughout

the judicial proceedings and thus a new trial offers more protection to the defendant

because he has two opportunities to secure an acquittal); Green, 355 U.S. at 189–193,

78 S. Ct. at 224–27, 2 L. Ed. 2d at 205–08 (offering continuing jeopardy as one

“rationalization” to justify a new trial following a successful appeal).

Similarly, “[w]hen a trial court declares a mistrial, it all but invariably

contemplates that the prosecutor will be permitted to proceed anew notwithstanding

the defendant’s plea of double jeopardy.” Scott, 437 U.S. at 92, 98 S. Ct. at 2194, 57

L. Ed. 2d at 75. To “proceed anew” after a properly declared mistrial means a fresh

start with a complete, new trial, having all the procedural stages as the original one.

Thus, whether after an appeal or a mistrial, double jeopardy protection is not

implicated by a complete, new trial.

III. Unique Nature of Mistrials

“[W]ithout exception, the courts [in this country] have held that the trial judge

may discharge a genuinely deadlocked jury and require the defendant to submit to a

second trial. This rule accords recognition to society’s interest in giving the

prosecution one complete opportunity to convict those who have violated its laws.”

Arizona, 434 U.S. at 509, 98 S. Ct. at 832, 54 L. Ed. 2d at 730.

The double-jeopardy provision of the Fifth Amendment . . .
does not mean that every time a defendant is put to trial
9
 STATE V. COURTNEY

Newby, J., dissenting

before a competent tribunal he is entitled to go free if the
trial fails to end in a final judgment. Such a rule would
create an insuperable obstacle to the administration of
justice in many cases in which there is no semblance of the
type of oppressive practices at which the double-jeopardy
prohibition is aimed. There may be unforeseeable
circumstances that arise during a trial making its
completion impossible, such as the failure of a jury to agree
on a verdict. In such event the purpose of law to protect
society from those guilty of crimes frequently would be
frustrated by denying courts power to put the defendant to
trial again. . . . It is settled that the duty of the judge in
this event is to discharge the jury and direct a retrial.

Wade v. Hunter, 336 U.S. 684, 688–89, 69 S. Ct. 834, 837, 93 L. Ed. 974, 978 (emphasis

added), reh’g denied, 337 U.S. 921, 69 S. Ct. 1152, 93 L. Ed. 1730 (1949). Seemingly

contrary to the general rules governing double jeopardy, the jeopardy from the first

trial is not regarded to have attached, continued, or ended in a way that can preclude

a second trial. See id. at 688–89, 69 S. Ct. at 837, 93 L. Ed. at 978. A mistried

defendant’s “valued right to have his trial completed by a particular tribunal must

. . . be subordinated to the public’s interest in fair trials designed to end in just

judgments.” Id. at 689, 69 S. Ct. at 837, 93 L. Ed. at 978. Defendant is entitled to a

fair trial, and the State is entitled to a fair opportunity to prosecute the crime; both

defendant and the State are entitled to a jury verdict on the charges. See Arizona,

434 U.S. at 509, 98 S. Ct. at 832, 54 L. Ed. 2d at 730.

The Supreme Court of the United States first set out the general rule regarding

mistrials in United States v. Perez by considering “whether the discharge of the jury

by the Court from giving any verdict upon the indictment, with which they were

10
 STATE V. COURTNEY

Newby, J., dissenting

charged, without the consent of the prisoner, is a bar to any future trial for the same

offence.” Perez, 22 U.S. at 579, 6 L. Ed. at 578. The Court concluded that “the law has

invested Courts of justice with the authority to discharge a jury from giving any

verdict, whenever, in their opinion, taking all the circumstances into consideration,

there is a manifest necessity for the act, or the ends of public justice would otherwise

be defeated.” Id. at 580, 6 L. Ed. at 578 (contemplating the sound discretion by the

trial court in declaring a mistrial). Under circumstances of manifest necessity, “a

discharge [of the jury] constitutes no bar to further proceedings, and gives no right of

exemption to the prisoner from being again put upon trial.” Id. at 580, 6 L. Ed. at

579–80.

In United States v. Sanford, the Court confirmed that “[t]he Government’s

right to retry the defendant, after a mistrial, in the face of his claim of double jeopardy

is generally governed by the test laid down in Perez . . . .” 429 U.S. 14, 16, 97 S. Ct.

20, 21, 50 L. Ed. 2d 17, 20 (1976) (footnote omitted). In that case the respondents

successfully moved to dismiss the indictment post-mistrial but before the new trial

had begun. Id. at 14–15, 97 S. Ct. at 20–21, 50 L. Ed. 2d at 19. On appeal the Court

agreed “that jeopardy attached at the time of the empaneling of the jury for the first

trial,” but disagreed that the procedural “sequence of events in the District Court”

presented a bar from retrying respondents under the Double Jeopardy Clause. Id. at

15, 97 S. Ct. at 21, 50 L. Ed. 2d at 19.

11
 STATE V. COURTNEY

Newby, J., dissenting

The Court determined that “the indictment terminated, not in [respondent’s]

favor, but in a mistrial declared, sua sponte, by the District Court.” Id. at 15, 97 S.

Ct. at 21, 50 L. Ed. 2d at 19. “Where the trial is terminated in this manner,” Perez

provides “the classical test for determining whether the defendants may be retried

without violating the Double Jeopardy Clause.” Id. at 15, 97 S. Ct. at 21, 50 L. Ed. 2d

at 19–20. Reviewing respondent’s post-mistrial motion to dismiss, the Court

concluded: “The situation of a hung jury presented here is precisely the situation that

was presented in Perez, and therefore the Double Jeopardy Clause does not bar retrial

of these respondents on the indictment which had been returned against them.” Id.

at 16, 97 S. Ct. at 21, 50 L. Ed. 2d at 20 (citation omitted).

The Court compared the procedural posture of Sanford to its then-recent case

Serfass v. United States. Sanford, 429 U.S. at 16, 97 S. Ct. at 21–22, 50 L. Ed. 2d at

20. Serfass involved a pretrial motion to dismiss an indictment outside the context of

a mistrial; thus, the Court indicated the procedure after a mistrial was to begin

afresh, including a pretrial period. Serfass, 420 U.S. at 379–81, 387–93, 95 S. Ct. at

1058–59, 1062–65, 43 L. Ed. 2d at 268–70, 273–77. In Serfass the Court held that a

pretrial order dismissing an indictment did not affect the government’s right to

reprosecute the petitioner because there was no determination of guilt or innocence

by the fact-finder. Id. at 389, 95 S. Ct. at 1063, 43 L. Ed. 2d at 274. Because the motion

was pretrial, “[a]t no time during or following the hearing on petitioner’s motion to

dismiss the indictment did the District Court have jurisdiction to do more than grant

12
 STATE V. COURTNEY

Newby, J., dissenting

or deny that motion, and neither before nor after the ruling did jeopardy attach.” Id.

at 389, 95 S. Ct. at 1063, 43 L. Ed. 2d at 275. The Court also rejected the petitioner’s

assertion that dismissing the indictment, even if the trial court based its decision on

facts that would constitute a defense at trial, was the functional equivalent of an

acquittal. Id. at 390, 95 S. Ct. at 1063–64, 43 L. Ed. 2d at 275.

By analogizing the post-mistrial motion to dismiss an indictment in Sanford to

the pretrial motion to dismiss the indictment in Serfass, the Court signifies the

procedural similarities between those cases; both involved a dismissal during a

pretrial stage. Retrial does not offend the protections afforded by the Double Jeopardy

Clause. Thus, applying Sanford and Serfass, if a mistrial terminates the criminal

proceeding, intervening motions between mistrial and the beginning of a defendant’s

second trial do not trigger double jeopardy protections. This principle is illustrated

by this Court’s long-stated view that “[w]hen a mistrial has been declared properly,

‘in legal contemplation there has been no trial.’ ” State v. Sanders, 347 N.C. 587, 599,

496 S.E.2d 568, 576 (1998) (quoting Tyson, 138 N.C. at 629, 50 S.E. at 456).1

1 Federal circuit courts have reached the same conclusion. See, e.g., Chatfield v.
Ricketts, 673 F.2d 330, 332 (10th Cir.) (“The Sanford court obviously concluded that since the
government has a right to retry the defendant following a mistrial because of a hung jury,
the period following the mistrial is a pretrial period. During the pretrial period, a prosecutor
may dismiss charges, and the Double Jeopardy Clause does not prohibit the prosecutor from
reasserting the same charges at a later date.”), cert. denied, 459 U.S. 843, 103 S. Ct. 96, 74
L. Ed. 2d 88 (1982); Arnold v. McCarthy, 566 F.2d 1377, 1388 (9th Cir. 1978) (“Once a mistrial
had been fairly ordered the situation became analogous to the pretrial period in which the
prosecutor has undisputed authority to dismiss charges without fear of being prohibited from
reasserting them by the Fifth Amendment. Subsequent to the declaration of a mistrial for
reasons which satisfy the ‘manifest necessity’ standards of the Double Jeopardy Clause, the
13
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Newby, J., dissenting

state can dismiss criminal charges without forfeiting the right to retry them.”); Dortch v.
United States, 203 F.2d 709, 710 (6th Cir.) (per curiam) (The sequence of a mistrial, “a nolle
prosequi[,] and a dismissal without prejudice do[es] not bar a second prosecution for the same
offense, inasmuch as such terminations are not tantamount to acquittal.”), cert. denied, 346
U.S. 814, 74 S. Ct. 25, 98 L. Ed. 342 (1953); Lynch v. United States, 189 F.2d 476, 478–79
(5th Cir.) (“When the mistrial was declared, the Government was at liberty to try the
appellants again on the same indictment or to obtain a new indictment. A mistrial in a case
is no bar to a subsequent trial of defendants.”), cert. denied, 342 U.S. 831, 72 S. Ct. 50, 96 L.
Ed. 629 (1951).
State courts have reached the same conclusion. See, e.g., Duncan v. State, 939 So. 2d
772, 774–77 (Miss. 2006) (allowing re-indictment following mistrial due to hung jury on
original indictment and the prosecutor’s nolle prosequi of original indictment despite double
jeopardy claim); Casillas v. State, 267 Ga. 541, 542, 480 S.E.2d 571, 572 (1997) (“[A] properly
granted mistrial removes the case from the jury and a nolle prosequi entered thereafter, even
without the consent of the defendant, does not have the effect of an acquittal. Since the nolle
prosequi of the original indictment of Casillas was entered only after the mistrial was
declared, he was not acquitted of any crimes charged in that original indictment and there is
no bar to his retrial for the crimes charged in the new indictment.” (citations omitted)); State
v. Gaskins, 263 S.C. 343, 347, 210 S.E.2d 590, 592 (1974) (“If, after a mistrial has been duly
ordered, the prosecuting officer enters a nolle prosequi, such will not be a bar to a subsequent
prosecution for the same offense. . . . [as it] would not adjudicate either the innocence or the
guilt of the respondent and would be no bar to his future prosecution for the same
offense.”(citations omitted)); id. (recognizing the differing effects of a pretrial dismissal
following a mistrial and a midtrial dismissal that may occur during the second trial); In re
Weir, 342 Mich. 96, 99, 69 N.W.2d 206, 208 (1955) (“The dismissal of the former prosecution
. . . following disagreement of the jury is not to be considered as an acquittal either on the
facts or on the merits.” (citing, inter alia, People v. Pline, 61 Mich. 247, 28 N.W. 83 (1886)));
Smith v. State, 135 Fla. 835, 839, 186 So. 203, 205 (1939) (“It is well settled in this state that
a mistrial by reason of the inability of the jury to agree does not constitute former jeopardy.
Nor is the entry of a nolle prosequi a bar to another information for the same offense. After
the mistrial the case stood as if it had never been tried, and a nolle prosequi entered then had
no different effect in favor of the defendant than if it had been entered prior to the trial.”
(citations omitted)); Pline, 61 Mich. at 251, 28 N.W. at 84 (concluding that the sequence of a
mistrial, a subsequent nolle prosequi, followed by a new trial does not offend the defendant’s
right against double jeopardy).
Courts have applied the same principle following a reversal on appeal. See, e.g., C.K.
v. State, 145 Ohio St. 3d 322, 325, 49 N.E.3d 1218, 1221–22 (2015) (“[T]he dismissal of an
indictment without prejudice on remand from a reversal does not bar future prosecution of
the accused.”); United States v. Davis, 873 F.2d 900, 903 (6th Cir.) (“In the leading case of
United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896), the Supreme Court
held that a defendant who succeeded in having his murder conviction set aside because of a
14
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Newby, J., dissenting

Like the trial court in Sanford, the majority here confuses the theory of

jeopardy with the procedural “sequence of events.” See Sanford, 429 U.S. at 15, 97 S.

Ct. at 21, 50 L. Ed. 2d at 19. The procedural posture of Sanford determined the effect

of the dismissal. Because the case after mistrial was in its pretrial stage, the

dismissal was not a terminating event.

The majority seeks to minimize the holding of Sanford, saying that Richardson

v. United States, 468 U.S. 317, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984), somehow

limits Sanford and, without analysis, that a motion to dismiss by a defendant is

qualitatively different than a dismissal by the State. Under its misapplication of the

“continuing jeopardy” theory, however, jeopardy would infect all aspects of the

proceeding. Regardless of which party makes the motion, the granting of a motion to

dismiss after jeopardy attached in the first trial would be a terminating event. The

correct question asks at what trial stage was the motion made or the dismissal was

taken, not the identity of the party that initiated it.

IV. Continuing Jeopardy

While the majority’s misapplication of the “continuing jeopardy

theory” causes it to miss the fundamental question regarding the procedural posture

of this case, a discussion of the development of the theory is helpful. Similar to

legal defect in the indictment was not ‘twice put in jeopardy,’ in violation of the Constitution,
when retried on a new and legally sufficient indictment.”), cert. denied, 493 U.S. 923, 110 S.
Ct. 292, 107 L. Ed. 2d 271 (1989).
15
 STATE V. COURTNEY

Newby, J., dissenting

granting a new trial after appeal, courts have put forward different legal theories

that justify a second trial following a mistrial, but the theories result in the same

conclusion: The State may proceed with a complete, new trial following a mistrial.

The majority relies heavily on Richardson to justify its outcome here. In that

case the jury acquitted Richardson of some but not all federal narcotics charges

brought against him, resulting in a hung jury on those remaining charges and a

declared mistrial. Richardson, 468 U.S. at 318–19, 104 S. Ct. at 3082–83, 82 L. Ed.

2d at 246–47. The trial court scheduled defendant’s new trial. Id. at 318, 104 S. Ct.

at 3082, 82 L. Ed. 2d at 246. Richardson moved to bar the retrial, arguing that “if the

Government failed to introduce sufficient evidence to establish his guilt beyond a

reasonable doubt at his first trial [on the acquitted charges], he may not be tried again

following a declaration of a mistrial because of a hung jury.” Id. at 322–23, 104 S. Ct.

at 3084, 82 L. Ed. 2d at 249.

The Court in Richardson recognized that “[t]he case law dealing with the

application of the prohibition against placing a defendant twice in jeopardy following

a mistrial because of a hung jury has its own sources and logic.” Id. at 323, 104 S. Ct.

at 3085, 82 L. Ed. 2d at 249–50. Citing “this settled line of cases,” it reaffirmed that

“a failure of the jury to agree on a verdict was an instance of ‘manifest necessity’

which permitted a trial judge to terminate the first trial and retry the defendant,

because ‘the ends of public justice would otherwise be defeated.’ ” Id. at 323–24, 104

S. Ct. at 3085, 82 L. Ed. 2d at 250 (quoting Perez, 22 U.S. at 580, 6 L. Ed. at 165).

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 STATE V. COURTNEY

Newby, J., dissenting

The Court emphasized Richardson’s situation involved a mistrial and

distinguished it from the outcome of Burks v. United States, a nonmistrial case. Id.

at 325–26, 104 S. Ct. at 3086, 82 L. Ed. 2d at 250–51 (citing Burks v. United States,

437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978)). The Court introduced this discussion

by refusing “to uproot this settled line of cases by extending the reasoning of Burks,

which arose out of an appellate finding of insufficiency of evidence to convict following

a jury verdict of guilty, to a situation where the jury is unable to agree on a verdict.”

Id. at 324, 104 S. Ct. at 3085, 82 L. Ed. 2d at 250. The Court then summarized its

holding in Burks as equating “an appellate court’s finding of insufficient evidence to

convict on appeal from a judgment of conviction” as an acquittal “for double jeopardy

purposes.” Id. at 325, 104 S. Ct. at 3086, 82 L. Ed. 2d at 251. Burks “obviously did not

establish, consistently with cases such as Perez, that a hung jury is the equivalent of

an acquittal.” Id. at 325, 104 S. Ct. at 3086, 82 L. Ed. 2d at 251.

In distinguishing Richardson’s situation from that of a defendant in a

nonmistrial case, the Court recognized that mistrials present unique exceptions that

terminate a criminal proceeding in a way that permits retrial without giving rise to

a double jeopardy claim. See id. at 325, 104 S. Ct. at 3086, 82 L. Ed. 2d at 251 (“[T]he

failure of the jury to reach a verdict is not an event which terminates jeopardy.”). The

concurring opinion in Richardson calls this “continuing jeopardy” theory “a

formalistic concept” unnecessary to justifying the general policy behind retrying

mistrials. Id. at 327, 329, 104 S. Ct. at 3087, 3088, 82 L. Ed. 2d at 252, 254 (Brennan,

17
 STATE V. COURTNEY

Newby, J., dissenting

J., concurring in part and dissenting in part) (“[S]trong policy reasons may justify

subjecting a defendant to two trials in certain circumstances notwithstanding the

literal language of the Double Jeopardy Clause” and without “seek[ing] to justify such

a retrial by pretending that it was not really a new trial at all but was instead simply

a ‘continuation’ of the original proceeding.” (quoting Lydon, 466 U.S. at 321, 104 S.

Ct. at 1820, 80 L. Ed. 2d at 333 (Brennan, J., concurring in part and concurring in

judgment))).

As demonstrated by Richardson, mistrials presuppose a future prosecution.

See id. at 326, 104 S. Ct. at 3086, 82 L. Ed. 2d at 251 (majority opinion) (“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.”). Tellingly, in Richardson both the majority opinion’s theory and the

concurring opinion’s theory result in the same general rule that the State may retry

a defendant following a mistrial.

The Supreme Court of the United States “ha[s] constantly adhered to the rule

that a retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause.”

Id. at 323–24, 104 S. Ct. at 3085, 82 L. Ed. 2d at 250 (A hung jury “permit[s] a trial

judge to terminate the first trial and retry the defendant, because ‘the ends of public

justice would otherwise be defeated.’ ” (quoting Perez, 22 U.S. at 580, 6 L. Ed. at 165)).

Here the majority now uses Richardson’s “continuing jeopardy” justification that

allows a new trial following a mistrial to prevent a new trial, by holding that the

18
 STATE V. COURTNEY

Newby, J., dissenting

prosecutor’s pretrial dismissal was a “terminating event” to the jeopardy that had

attached at the original trial. Regardless of the legal theory posited to justify a new

trial following a mistrial, that same theory cannot then be used to prohibit the same.

In a case with facts similar to the instant case, the Supreme Court of

Mississippi applied the general principles of double jeopardy under the continuing

jeopardy theory in the context of two previous mistrials for the same defendant.

Beckwith v. State, 615 So. 2d 1134, 1135–36 (Miss. 1992), cert. denied, 510 U.S. 884,

114 S. Ct. 232, 126 L. Ed. 2d 187 (1993). Beckwith was indicted and tried twice for

the murder of civil rights activist Medgar Evers, resulting in hung juries and

mistrials. Id. at 1135. In 1969, five years after his second mistrial, the prosecutor

entered a nolle prosequi, noticing his intent not to prosecute further. Id. In 1990,

twenty-six years after the last mistrial, the State again indicted Beckwith for murder.

Id. On interlocutory appeal, Beckwith claimed another trial would violate his

constitutional right against double jeopardy. Id. at 1136.

Applying federal precedent and Mississippi law, that court first recognized

that “[d]efendants may be repeatedly retried . . . following mistrials granted because

the jury was deadlocked and could not reach a unanimous verdict.” Id. at 1147. The

court further determined the nolle prosequi was akin to “ ‘retiring’ or ‘passing’ an

indictment to the files [and] [wa]s not an acquittal barring further prosecution,

following which the case may be reopened upon motion of the State”; it “did not

terminate the original jeopardy, and the State was not barred thereafter from seeking

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 STATE V. COURTNEY

Newby, J., dissenting

the re-indictment of and re-prosecuting the defendant from the same offense.” Id. The

court continued, “If, following a mistrial declared in such an instance, the State does

what it considers manifestly fair, and moves to dismiss the case, it would be

shockingly wrong to hold that it could never have the case re-opened upon discovery

of additional evidence.” Id. at 1148. Therefore, “the entry of the nolle prosequi in 1969

did not terminate Beckwith’s original jeopardy or accrue unto him the right not to be

re-indicted and re-prosecuted for the same offense.” Id.

V. Effect of the Voluntary Dismissal

A voluntary dismissal during a pretrial phase following a mistrial is not the

equivalent of an acquittal and cannot prevent a retrial. 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.G.S. § 15A-931 (1983)). A dismissal at a pretrial stage does not prevent

re-indictment and retrial. Of note, there is no statute of limitations applicable to

murder in North Carolina, nor does dismissal and re-indictment implicate speedy

trial concerns. See State v. Johnson, 275 N.C. 264, 271, 167 S.E.2d 274, 279 (1969).

The standard dismissal form used by the prosecutor here does not contemplate

proceedings after a mistrial (or reversal on appeal). The form lists the sections of the

General Statutes to which it corresponds, including, at issue here, section 15A-931

20
 STATE V. COURTNEY

Newby, J., dissenting

governing general dismissals,2 which provides in pertinent part:

(a) . . . [T]he prosecutor may dismiss any charges stated in
a criminal pleading including those deferred for
prosecution 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. The clerk must record the
dismissal entered by the prosecutor and note in the case
file whether a jury has been impaneled or evidence has
been introduced.

(a1) Unless the defendant or the defendant’s attorney has
been notified otherwise by the prosecutor, a written
dismissal of the charges against the defendant filed by the
prosecutor shall be served in the same manner prescribed
for motions under G.S. 15A-951. In addition, the written
dismissal shall also be served on the chief officer of the
custodial facility when the record reflects that the
defendant is in custody.

N.C.G.S. § 15A-931(a) to (a1) (2017). A dismissal under N.C.G.S. § 15A-931

terminates the criminal proceedings under that indictment. Id. § 15A-931 official

cmt. (2017). It does not prohibit indicting the same defendant later on the same

charges, see id., but a new indictment is necessary to do so, see Lamb, 321 N.C. at

2 The form includes additional statute cites. See N.C.G.S. § 15A-302(e) (2017)
(“Dismissal by Prosecutor. — If the prosecutor finds that no crime or infraction is charged in
the citation, or that there is insufficient evidence to warrant prosecution, he may dismiss the
charge and so notify the person cited. An appropriate entry must be made in the records of
the clerk. It is not necessary to enter the dismissal in open court or to obtain consent of the
judge.”); N.C.G.S. § 15A-932(b) (2017) (captioned “Dismissal with leave when defendant fails
to appear and cannot be readily found or pursuant to a deferred prosecution agreement” that
“results in removal of the case from the docket of the court, but all process outstanding retains
its validity . . .”).
A dismissal under sections 15A-931 and 15A-932 “results in termination or
indeterminate suspension of the prosecution of a criminal charge.” N.C.G.S. § 15A-1381(6)
(2017).
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 STATE V. COURTNEY

Newby, J., dissenting

635, 641, 365 S.E.2d at 601, 604 (reviewing a pretrial dismissal for an apparent lack

of evidence under N.C.G.S. § 15A-931 that did not preclude later re-indictment on the

same charges). In contrast, “[s]ection 15A-932 provides for a dismissal ‘with leave’ ”

that removes “the case from the court’s docket, but the criminal proceeding under the

indictment is not terminated. All outstanding process retains its validity and the

prosecutor may reinstitute the proceedings by filing written notice with the clerk

without the necessity of a new indictment.” Id. at 641, 365 S.E.2d at 604 (citing

N.C.G.S. § 15A-932 (1983)). A proper dismissal under N.C.G.S. § 15A-931 prevents a

claim of a speedy trial violation, id., whereas an indefinite continuance may give rise

to one.

The dismissal statutes were enacted in response to an opinion issued by the

Supreme Court of United States, Klopfer v. North Carolina, to provide “a simple and

final dismissal.” See N.C.G.S. § 15A-931 official cmt. (citing Klopfer v. North Carolina,

386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967)). In that case the Supreme Court of

the United States invalidated a North Carolina procedure, referred to as the “nolle

prosequi with leave,” because it violated Klopfer’s right to a speedy trial. Klopfer, 386

U.S. at 222, 87 S. Ct. at 993, 18 L. Ed. 2d at 7. Klopfer was indicted for misdemeanor

criminal trespassing in January 1964, and his trial ended in a mistrial in March 1964.

Id. at 217, 87 S. Ct. at 990, 18 L. Ed. 2d at 4–5. The trial court initially continued the

case for another term in April 1965 before the State took a “nolle prosequi with leave”

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 STATE V. COURTNEY

Newby, J., dissenting

eighteen months after the indictment. Id. at 217–18, 87 S. Ct. at 990–91, 18 L. Ed.

2d at 5.

In effect the nolle prosequi with leave allowed the indictment to remain

pending for an indeterminate time period, indefinitely postponing prosecution while

at the same allowing the case to be docketed on the court’s calendar at any time. Id.

at 214, 87 S. Ct. at 984, 18 L. Ed. 2d at 3. In the meantime, Klopfer could not obtain

a dismissal of the charge or demand the case be set for trial. Id. at 216, 87 S. Ct. at

990, 18 L. Ed. 2d at 4. The Court concluded:

The pendency of the indictment may subject him to public
scorn and deprive him of employment, and almost certainly
will force curtailment of his speech, associations and
participation in unpopular causes. By indefinitely
prolonging this oppression, as well as the “anxiety and
concern accompanying public accusation,” the criminal
procedure condoned in this case by the Supreme Court of
North Carolina clearly denies the petitioner the right to a
speedy trial which we hold is guaranteed to him by the
Sixth Amendment of the Constitution of the United States.

Id. at 222, 87 S. Ct. at 993, 18 L. Ed. 2d at 7 (footnote omitted) (quoting United States

v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776, 15 L. Ed. 2d 627, 630 (1966)). Notably,

Klopfer’s victory meant he “was entitled to be tried in accordance with the protection

of the confrontation guarantee of the Sixth Amendment” following his mistrial, rather

than a substantive dismissal of the charges. Id. at 222, 87 S. Ct. at 993, 18 L. Ed. 2d

at 7–8 (quoting Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L. Ed. 2d

923, 928 (1965)).

23
 STATE V. COURTNEY

Newby, J., dissenting

Nonetheless, the majority declares that the section 15A-931 dismissal here

provides a newfound “terminating event” that now bars retrial following a mistrial.

Under the majority’s reasoning, because jeopardy attached in defendant’s original

mistrial, the State’s dismissal following the mistrial occurred during “jeopardy” and

thus is treated as a midtrial dismissal. The majority overlooks the mistrial principle

that the “jeopardy” of the mistrial does not preclude a retrial. The initial jury was

discharged, and a new trial must take place to put defendant at risk of conviction.

Before the new trial began, during the new pretrial phase, the State could dismiss

the pending indictment without being prohibited from re-indicting and retrying

defendant.

The statute clearly governs voluntary dismissals at trials generally and does

not, on its face, even address the unique circumstances involved in a mistrial.

Moreover, the form associated with the statute does not specifically include nor

contemplate the procedure following a mistrial. The State signified defendant’s first

trial terminated with a hung jury by handwriting and without suggesting any

substantive or conclusive finding on defendant’s guilt or innocence. The dismissal

here is not substantive; it does not speak to defendant’s guilt or innocence and cannot

be equated to an acquittal.

By the statute’s text and application, it is unlikely that the General Assembly

intended it to place North Carolina outside the longstanding double jeopardy

principles that govern mistrials. It is more likely that the General Assembly intended

24
 STATE V. COURTNEY

Newby, J., dissenting

to abolish a specific procedure that threatened a defendant’s right to a speedy trial

when an indictment remained pending against him and to prevent prosecutorial

efforts to dismiss a case midtrial in hope of procuring a more favorable jury. Double

jeopardy concerns that may arise in a midtrial dismissal simply do not arise in the

pretrial stages. Even under a continuing jeopardy theory of mistrials, a

nonsubstantive voluntary dismissal by the State does not preclude a retrial following

a mistrial. See Beckwith, 615 So. 2d at 1148. A prosecutor can dismiss an indictment

following a mistrial under N.C.G.S. § 15A-931, in keeping with defendant’s

constitutional right to a speedy trial, without compromising the State’s undeniable

right to retry a mistried case should new evidence surface.

It is indisputable that the State can enter a pretrial section 15A-931 dismissal

and later re-indict. The majority places the State in the impossible position of

choosing to proceed to a new trial with what one jury deemed insufficient evidence or

lose any opportunity to hold the defendant accountable for the crime. Instead of

rushing to a retrial, the ends of justice may be best served by waiting. Over time, as

with this case, new witnesses may come forward or improvements may be made in

forensic evidence testing. The new evidence might exonerate the defendant or

implicate him. A pretrial dismissal, whether during the initial stage or during the

pretrial stage after mistrial, can serve the ends of justice. Thereafter, as with this

defendant and with Beckwith, armed with new evidence the State can retry the

defendant even years later.

25
 STATE V. COURTNEY

Newby, J., dissenting

The majority’s reliance on the State’s election rule, as described in State v.

Jones, underscores the majority’s mistaken view of the procedural posture of this

case. 317 N.C. 487, 346 S.E.2d 657 (1986). In that case the trial proceeded on a charge

of second-degree rape; however, at the close of evidence, the State proposed a jury

instruction on first-degree rape, and the trial court gave that instruction. Id. at 491,

346 S.E.2d at 659–60. The jury ultimately convicted the defendant on first-degree

rape. Id. In reversing the first-degree rape conviction, this Court “h[e]ld that the State

made a binding election,” after the jury was empaneled, “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.” Id. at 493, 346 S.E.2d at 660.

The majority says the State cannot adequately explain why

a prosecutor’s unilateral, post-attachment decision to
terminate the entire prosecution should be less binding on
the State than its post-attachment decision to pursue a
lesser charge. By making the unilateral choice to enter a
final dismissal of defendant’s murder charge after jeopardy
had attached, the State made a binding decision not to
retry the case.

Clearly, the majority confuses the trial stages at which the actions were taken; the

charge election occurred during trial whereas the post-mistrial dismissal here was

taken during the pretrial stage.

VI. Conclusion

Does a mistrial result in a new proceeding with a pretrial period? The clear

language from this Court says that, following a mistrial, “the jury has been

26
 STATE V. COURTNEY

Newby, J., dissenting

discharged . . . [and] in legal contemplation there has been no trial.” Tyson, 138 N.C.

at 629, 50 S.E. at 456. Likewise, the Supreme Court of the United States says the

proceeding begins anew after a mistrial. See Scott, 437 U.S. at 92, 98 S. Ct. at 2194,

57 L. Ed. 2d at 75. Thus, the dismissal here was a pretrial dismissal, which is not an

acquittal, and the State is not barred from proceeding with a new indictment and

trial. The majority’s hyper-technical misapplication of the “continuing jeopardy”

theory is not supported by applicable law and results in a convicted murderer being

freed. I respectfully dissent.

Justice ERVIN joins in this dissenting opinion.

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