State v. Robinson

IN THE SUPREME COURT OF NORTH CAROLINA

No. 411A94-6

Filed 14 August 2020

STATE OF NORTH CAROLINA

v.
MARCUS REYMOND ROBINSON

On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review an order

denying defendant’s motion for appropriate relief filed pursuant to the Racial Justice

Act entered on 25 January 2017 by Judge W. Edwin Spainhour in Superior Court,

Cumberland County. Heard in the Supreme Court on 26 August 2019.

Joshua H. Stein, Attorney General, by Danielle Marquis Elder, Senior Deputy
Attorney General, and Jonathan P. Babb, Special Deputy Attorney General,
for the State-appellee.

Cassandra Stubbs, Donald Beskind, David Weiss, and Brian Stull for
defendant-appellant.

James E. Coleman Jr. for Charles Becton, Charles Daye, Valerie Johnson,
Irving L. Joyner, Floyd B. McKissick Jr., Cressie H. Thigpen Jr., and Fred J.
Williams, amici curiae.

Jeremy M. Falcone, Paul F. Khoury, Robert L. Walker, and Madeline J. Cohen
for Former State and Federal Prosecutors, amicus curiae.

Carlos E. Mahoney, Jin Hee Lee, and W. Kerrel Murray for NAACP Legal
Defense and Educational Fund, Inc., amicus curiae.

Janet Moore for National Association for Public Defense, amicus curiae.

James E. Williams Jr., Burton Craige, and Bidish Sarma for North Carolina
Advocates for Justice, amicus curiae.

Grady Jessup for North Carolina Association of Black Lawyers, amicus
curiae.
 STATE V. ROBINSON
Opinion of the Court

Cynthia F. Adcock for North Carolina Council of Churches, amicus curiae.

Lisa A. Bakale-Wise and Irving Joyner for North Carolina State Conference of
the NAACP, amicus curiae.

Professors Robert P. Mosteller & John Charles Boger, amicus curiae.

Robert P. Mosteller for Retired Members of the North Carolina Judiciary,
amicus curiae.

Joseph Blocher for Social Scientists, amicus curiae.

BEASLEY, Chief Justice.

On 6 August 2009 the North Carolina General Assembly, recognizing the

egregious legacy of the racially discriminatory application of the death penalty in this

state, enacted the Racial Justice Act (the RJA or the Act). The goal of this historic

legislation was simple: to abolish racial discrimination from capital sentencing. That

is, to ensure that no person in this state is put to death because of the color of their

skin.

Once implemented, the RJA worked as intended. Immediately, proceedings

initiated pursuant to the Act revealed pervasive racial bias in capital sentencing in

North Carolina. For defendant Marcus Reymond Robinson, the first condemned

inmate to have a hearing pursuant to the RJA, the trial court found that he

successfully proved that racial discrimination infected his trial and sentencing.

After Robinson proved his entitlement to relief under the RJA, the

General Assembly amended the statute to increase the burden of proof, thereby

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 STATE V. ROBINSON
Opinion of the Court

making it more difficult for claimants to prove racial bias and obtain relief.

Nonetheless, the trial court held that the next three claimants met the higher

standard and demonstrated that racial bias had infected their capital proceedings as

well.

With 100% of claimants successfully proving their entitlement to relief and

with more than 100 additional RJA claims filed, the vast majority of death row

inmates were on the precipice of an opportunity to individually demonstrate that the

proceedings in which they were sentenced to death were fundamentally flawed by

racial animus. Rather than allowing these proceedings to follow their course, the

General Assembly repealed the Act. The repeal was made retroactive: Robinson and

the three other defendants who had already proven that their capital sentences were

based on racially biased proceedings were returned to death row to await execution.

Today, we are not asked to pass on the wisdom of repealing a statutory

mechanism for rooting out the insidious vestiges of racism in the implementation of

our state’s most extreme punishment.1 That decision is for the General Assembly.

Instead, this Court must decide whether the North Carolina Constitution allows for

that repeal to be retroactive. We hold that it does not.

I.

Nor are we asked to review the underlying facts of Robinson’s offenses and his
1

ultimate conviction of first-degree murder. Given the nature of the appeal before this Court,
this Court’s ruling on Robinson’s claim under the Racial Justice Act does not negate or
diminish his criminal culpability.

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 STATE V. ROBINSON
Opinion of the Court

The Racial Justice Act prohibited capital punishment if race was a significant

factor in the decision to seek or impose the death penalty. North Carolina Racial

Justice Act, S.L. 2009-464, § 1, 2009 N.C. Sess. Laws 1213, 1214 [hereinafter Original

RJA] (codified at N.C.G.S. §§ 15A-2010, -2011 (2009)) (repealed 2013). Defendants

could use statistical evidence to meet their evidentiary burden and show that race

was a significant factor in the county, the prosecutorial district, the judicial division,

or the state at the time their sentence was imposed. Id., § 1, 2009 N.C. Sess. Laws at

1214.

Defendants could show that race was a significant factor by demonstrating

evidence of one or more of the following: that death sentences were sought or imposed

significantly more frequently upon persons of one race; that death sentences were

sought or imposed more frequently based on the race of the victim; or that race was

a significant factor in decisions to exercise peremptory strikes during jury selection.

Id. The State could offer rebuttal evidence, including its own statistical evidence. Id.

If race was found to be a significant factor, defendants were legally ineligible to

receive the death penalty; instead, they were sentenced to life imprisonment without

the possibility of parole. Id.

The RJA was legislation unique to this state, most notably in its allowance of

statistical evidence to prove racial discrimination. The Supreme Court of the United

States has previously rejected the use of statewide statistical evidence in

constitutional challenges to Georgia’s death penalty scheme, finding that state

legislatures “are better qualified to weigh and ‘evaluate the results of statistical

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 STATE V. ROBINSON
Opinion of the Court

studies in terms of their own local conditions.’ ” McCleskey v. Kemp, 481 U.S. 279,

319, 107 S. Ct. 1756, 1781 (1987) (quoting Gregg v. Georgia, 428 U.S. 153, 186, 96 S.

Ct. 2909, 2931 (1976)). The General Assembly, however, recognized the difficulty of

proving systemic discrimination absent statistical evidence. During the debates over

the Act in the North Carolina Senate, Senator Doug Berger explained why the use of

statistics was necessary, arguing that “[r]ace discrimination is very hard to prove.

Rarely, particularly in today’s time, do people just outright say, ‘I am doing this

because of the color of your skin.’ ”2

The RJA was the first law in the country to allow for a finding of racial

discrimination during jury selection without requiring proof of intentional

discrimination. The ability to serve on a jury is one of the many ways African-

Americans have struggled to participate in our democratic processes. An

understanding of the history and evolution of racial discrimination is necessary in

order to understand why the RJA was passed. After the Civil War, the Supreme Court

of the United States barred statutes that excluded African-Americans from serving

as jurors. Strauder v. West Virginia, 100 U.S. 303 (1879). Recognizing that “[t]he very

idea of a jury is a body of men composed of the peers or equals of the person whose

rights it is selected or summoned to determine,” the Supreme Court held that the

Equal Protection Clause barred the exclusion of jurors based on their race. Id. at 308.

2 Sen. Doug Berger, Floor Debate on Racial Justice Act (May14,
2009), https://archive.org/details/NorthCarolinaSenateAudioRecordings20090514/North_Ca
rolina_Senate_Audio_Recordings_20090514.mp3

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 STATE V. ROBINSON
Opinion of the Court

Discrimination still occurred in practice as local jurisdictions excluded African-

Americans from being in jury venires, preventing them from being in the jury pool.

The Supreme Court of the United States addressed this newest form of

discrimination by prohibiting “any action of a state, whether through its legislature,

through its courts, or through its executive or administrative officers” that led to the

exclusion of African-American jurors. Carter v. Texas, 177 U.S. 442, 447, 20 S. Ct.

687, 689 (1900); see also State v. Peoples, 131 N.C. 784, 790, 42 S.E. 814, 816 (1902)

(“How can the forcing of [an African-American defendant] to submit to a criminal trial

by a jury drawn from a list from which has been excluded the whole of his race, purely

and simply because of color . . . be defended? Is not such a proceeding a denial to him

of equal legal protection? There can be but one answer, and that is that it is an

unlawful discrimination.”).

Following these decisions, neither statutes nor local practices could legally

exclude African-Americans from jury service. After the Civil War and Reconstruction,

however, racism and legal segregation remained rampant in North Carolina and

across the South. Facially race-neutral statutes, such as poll taxes and literacy tests,

and the “separate but equal” fallacy were instituted to legally discriminate against

African-Americans. In the early 1900s, African-Americans were excluded from jury

service in North Carolina through laws requiring that jurors: (1) had paid taxes the

preceding year; (2) were of good moral character; and (3) possessed sufficient

intelligence. See Peoples, 131 N.C. at 788, 42 S.E. at 815; Benno C. Schmidt Jr.,

Juries, Jurisdiction and Race Discrimination: The Lost Promise of Strauder v. West

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 STATE V. ROBINSON
Opinion of the Court

Virginia, 61 Tex. L. Rev. 1401, 1406 (1983) (“The problem of jury discrimination

encompasses the half-century from the end of Reconstruction to the New Deal, during

which the systematic exclusion of [B]lack men from Southern juries was about as

plain as any legal discrimination could be short of proclamation in state statutes or

confession by state officials.”)

The same racially oppressive beliefs that fueled segregation manifested

themselves through public lynchings, the disproportionate application of the death

penalty against African-American defendants, and the exclusion of African-

Americans from juries. Given the racially oppressive practices and beliefs that

permeated every level of American society during the Jim Crow era, the

constitutionally protected right of African-American defendants to be tried by a jury

of their peers became increasingly important. The Supreme Court of the United

States recognized that facially neutral statutes could violate the Fourteenth

Amendment because “equal protection to all must be given—not merely promised.”

Smith v. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 165 (1940). The Supreme Court

recognized that putting the fate of African-American defendants in the hands of all-

white juries contradicted “our basic concepts of a democratic society and a

representative government.” Id.

As progress was made toward ensuring equal representation in juries,

discrimination shifted from the composition of the venire to the composition of the

jury itself. Peremptory challenges became the next tool for limiting African-

Americans from serving as jurors because there were previously no African-American

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Opinion of the Court

jurors on the jury panel against whom peremptory challenges could be used. In North

Carolina, the number of authorized peremptory challenges increased from six to

fourteen during this period.3

In 1986 the Supreme Court of the United Sates recognized the persistent

impact of racial discrimination and the exclusion of jurors of color during jury

selection and established a three-part test to challenge discriminatory peremptory

challenges. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). Although the

Supreme Court’s ruling in Batson and subsequent decisions sought to eliminate

discrimination through the use of peremptory challenges, this Court has never held

that a prosecutor intentionally discriminated against a juror of color. 4 The RJA was

the General Assembly’s recognition of Batson’s ineffectiveness in this state.

II.

Robinson was convicted of first-degree murder and sentenced to death in 1994

in Superior Court, Cumberland County. On direct appeal, this Court found no error

3 See An Act to Amend the Laws Relating to Criminal Procedure, ch. 711, § 1, 1977
N.C. Sess. Laws 711; An Act to Amend G.S. 9-21(b) to Increase from Six to Nine the
Peremptory Challenges Allowed the State in Capital Cases, 1971 N.C. Sess. Laws 56.
4 The North Carolina Court of Appeals has held that there was a Batson violation in

only one case, where the prosecutor failed to offer any explanation for using peremptory
challenges to strike two jurors. State v. Wright, 189 N.C. App. 346, 352–54, 658 S.E.2d 60,
64–65 (2008)). In two cases, the Court of Appeals held that the defendant had met their prima
facie showing, but the underlying Batson challenge was unsuccessful upon remand. See State
v. McCord, 158 N.C. App. 693, 696–99, 582 S.E.2d 33, 35–37 (2003); State v. Sessoms, 119
N.C. App. 1, 4–7, 458 S.E.2d 200, 202–04 (1995). The only “successful” Batson challenges
have involved challenges alleging African-American defendants discriminated against white
jurors. See State v. Hurd, 246 N.C. App. 281, 294, 784 S.E.2d 528, 537 (2016); State v. Cofield,
129 N.C. App. 268, 277–80, 498 S.E.2d 823, 830–32 (1998).

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 STATE V. ROBINSON
Opinion of the Court

in his conviction and death sentence. State v. Robinson, 342 N.C. 74, 463 S.E.2d 218

(1995), cert. denied, 517 U.S. 1197 (1996). Robinson’s claims for post-conviction relief

were denied in state and federal court. State v. Robinson, 350 N.C. 847, 539 S.E.2d

646 (1999); Robinson v. Polk, 444 F.3d 225 (4th Cir. 2006), cert. denied 549 U.S. 1003

(2006). Robinson’s claims under the RJA do not negate or diminish his guilt or the

impact of his crimes on the victim’s family, the victim’s friends, and the community.

Rather, the Act ensured that even those who commit the most serious offenses are

entitled to a trial and sentencing free from racial discrimination.

Robinson filed a timely Motion for Appropriate Relief pursuant to the RJA on

6 August 2010. His hearing was scheduled thirteen months later on 6 September

2011. The State requested and the trial court granted a continuance of the hearing

for an additional four months but later denied the State’s third motion to continue on

30 January 2012. Robinson’s hearing, which lasted thirteen days, involved testimony

by seven expert witnesses and the introduction of over 170 exhibits.

Robinson’s claim under the RJA relied heavily on a study of jury selection

conducted by researchers at Michigan State University College of Law. Catherine M.

Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of

Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L.

Rev. 1531 (2012) [hereinafter MSU Study]. The MSU Study examined jury selection

in at least one proceeding for every inmate on death row in North Carolina as of 1

July 2010. This comprehensive study found that overall, African-American jurors

were 2.26 times more likely than all other jurors to be struck by the State. The State

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 STATE V. ROBINSON
Opinion of the Court

struck 52.6% of eligible African-American venire members, while only striking 25.7%

of all other eligible venire members. The researchers also performed a fully-controlled

regression analysis, controlling for non-race factors that could potentially have

caused the juror to be struck. Even after taking into account all of these other factors,

the results remained the same―African-American jurors were more than two times

as likely to be struck as all other jurors. The MSU Study also showed similar

disproportionate disparities in the county and judicial district of Robinson’s trial.5 In

stark contrast to these findings, this Court has never ruled that the State

intentionally discriminated against a juror of color in violation of Batson. Daniel R.

Pollitt & Brittany P. Warren, Thirty Years of Disappointment: North Carolina’s

Remarkable Appellate Batson Record, 94 N.C. L. Rev. 1957, 1961―62 (2016).6

In support of the findings from the MSU Study, Robinson also presented

evidence obtained through discovery. After introducing evidence that prosecutors

across North Carolina attended a “Top Gun” training, which taught them how to

articulate facially race-neutral reasons for striking African-American jurors,

Robinson presented transcripts from a capital case in Cumberland County in which

5 In Cumberland County, African-American jurors were struck at a rate of 52.7%
compared to 20.5% for all other jurors. Cumberland County was a part of Second Judicial
District from 1990 to 1999. In that district, African-American jurors were struck at a rate of
51.5%, compared to 25.1% for all other jurors. From 2000 to 2010 in the current Superior
Court Division 4, African-American jurors were struck at a rate of 62.4%, compared to 21.9%
for all other jurors.
6 This Court recently published two Batson decisions, State v. Hobbs, 374 N.C. 345,

841 S.E.2d 492 (2020) and State v. Bennett, 843 S.E.2d 222 (2020). Although this Court
ultimately remanded both matters for a new Batson hearing, we did not find that the State
intentionally discriminated against a juror in violation of Batson.

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 STATE V. ROBINSON
Opinion of the Court

the prosecutor used those exact reasons to justify striking an African-American juror.

The trial court noted that “[i]nstead of training on how to comply with Batson v.

Kentucky, and its mandate to stop discrimination in jury selection, North Carolina

prosecutors received training in 1995 and 2011 about how to circumvent Batson.”

Robinson also obtained hand-written notes made by a prosecutor during jury

selection in another Cumberland County capital case. These notes showed that an

African-American juror with a criminal history was called a “thug,” while a white

juror with a criminal record was a “fine guy.” An African-American juror was a “blk

wino,” while a white juror with a conviction for driving while impaired was a “country

boy—ok.”

Robinson also presented expert testimony about the role of implicit bias during

jury selection. Robinson’s experts testified about how race can influence decision-

making at a subconscious level. One of Robinson’s experts, Dr. Samuel Sommers,

explained how “race often has an effect on judgments that we don’t articulate when

we are asked about those judgments.” Rather than seeking to understand the role of

implicit bias in their decision-making, prosecutors attended training to ensure that

their race-based reasons for excluding jurors would not be subject to judicial scrutiny.

Robinson presented specific instances across the state where the race-neutral

explanations given by prosecutors were pretextual or overtly based on race. Robinson

presented evidence that an African-American juror was struck from the jury because

of his membership in a historic African-American civil rights organization, the

NAACP, and that another juror was struck from the jury because she graduated from

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Opinion of the Court

a historically black college and university, North Carolina A&T State University.

Robinson further showed how African-American jurors were struck after being asked

explicitly race-based questions, such as whether an African-American juror would be

the “subject of criticism” by their “black friends” if they were to return a verdict of

guilty. In multiple cases, prosecutors targeted African-American jurors by asking the

jurors different questions than other jurors, such as whether their child’s father was

paying child support. African-American jurors were also struck for patently irrational

reasons, such as membership in the armed forces. Robinson also showed more than

thirty examples of prosecutors striking African-American jurors for objectionable

characteristics yet passing on other similarly situated jurors.

The trial court, in its meticulously detailed findings, laid out how Robinson had

shown that race was a significant factor during jury selection in his case. The trial

court concluded that race was a significant factor in the decisions of prosecutors to

exercise peremptory challenges to strike African-American jurors in Cumberland

County, the former Second Judicial District, and the State of North Carolina as a

whole from 1990 to 2010 and resentenced Robinson to life imprisonment without the

possibility of parole.

Following Robinson’s hearing, the General Assembly amended the RJA,

limiting the scope of statistical evidence for future hearings. An Act to Amend Death

Penalty Procedures, S.L. 2012-136, §§ 1–10, 2012 N.C. Sess. Laws 471 [hereinafter

Amended RJA] (repealed 2013). The Amended RJA also included a provision that

applied the amendment to any trial court orders vacated or overturned upon

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Opinion of the Court

appellate review, which could only apply to Robinson’s case. Amended RJA,

S.L. 2012-136, § 8, 2012 N.C. Sess. Laws at 473. After the overwhelming statistical

evidence of systemic racial discrimination presented by Robinson, the General

Assembly limited the use of that evidence in future proceedings.

On 1 October 2012, an evidentiary hearing under the Amended RJA was held

for three additional defendants: Christina Walters, Quintel Augustine, and Tilmon

Golphin. On 13 December 2012, the trial court entered an order granting relief for

the three defendants after finding that they had established race as a significant

factor in the State’s use of peremptory challenges during jury selection.

After Robinson, Walters, Augustine, and Golphin showed that their death

sentences were sought or imposed on the basis of race, the General Assembly repealed

the RJA. Act of June 13, 2013, S.L. 2013-154, § 5.(a), 2013 N.C. Sess. Laws 368,

372 [hereinafter RJA Repeal]. The RJA Repeal was signed by the Governor on

19 June 2013. The repeal was retroactive and voided all pending motions for

appropriate relief. Id., 5.(d), 2013 N.C. Sess. Laws at 372. However, the RJA Repeal

did not apply to a trial court order resentencing a defendant to life imprisonment

without parole if that order is affirmed upon appellate review. Id.

The State petitioned this Court for a writ of certiorari, which this Court

allowed on 11 April 2013, arguing that the trial court had abused its discretion by

failing to grant the State’s third motion to continue. We agreed and vacated the trial

court’s order granting Robinson’s motion for appropriate relief without addressing

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Opinion of the Court

the merits of the underlying claim or the constitutional and statutory challenges to

the RJA. State v. Robinson, 368 N.C. 596, 597, 780 S.E.2d 151, 152 (2015).7

A joint hearing was held in the Superior Court, Cumberland County, on

29 November 2016 on the motions for appropriate relief filed by Robinson, Walters,

Augustine, and Golphin. The sole question considered by the trial court was whether

the defendants’ claims were rendered void by the RJA Repeal. The trial court found

that the defendants’ rights had not vested and that the RJA Repeal was not an ex

post facto law, but the trial court did not reach the defendants’ claims that the RJA

Repeal violated the double jeopardy protections of the state and federal constitutions.

The trial court erred by failing to consider Robinson’s constitutional arguments. As

discussed in Section III of this opinion, a proper analysis of Robinson’s double

jeopardy protections focuses on whether the trial court’s order granting relief under

the RJA constituted an acquittal of the death penalty. Because such an acquittal

would categorically bar reimposition of the death penalty, it is a threshold matter to

be addressed prior to any inquiries into the effect of legislation enacted subsequent

to the acquittal. The trial court concluded that the RJA Repeal retroactively voided

the defendants’ claims and dismissed each of the defendants’ motions for appropriate

relief.

This Court also vacated the orders granting relief to Walters, Augustine, and
7

Golphin, finding that the trial court erred by joining the cases for an evidentiary hearing and
that the error recognized in State v. Robinson, 368 N.C. 596, 780 S.E.2d 151 (2015), infected
the trial court’s decision. State v. Augustine, 368 N.C. 594, 594, 780 S.E.2d 552, 552 (2015).

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Opinion of the Court

Robinson filed a Petition for Writ of Certiorari on 30 May 2017, asking this

Court to consider whether the retroactive application of the RJA Repeal violates the

double jeopardy protections enshrined in our state constitution. We allowed the

petition on 1 March 2018, and today we hold that the retroactivity provision

constitutes such a violation.8

III.

Robinson argues that the RJA Repeal’s retroactive application to those who

previously received a sentence of life imprisonment without the possibility of parole

after a hearing under the RJA violates the constitutional prohibition against double

jeopardy. We agree. Once Robinson’s death sentence was vacated under the RJA,

Article I, Section 19 of the North Carolina Constitution barred the reinstatement of

his capital sentence.

The prohibition against double jeopardy is a “fundamental and sacred principle

of the common law, deeply imbedded in our criminal jurisprudence.” State v. Crocker,

239 N.C. 446, 449, 80 S.E.2d 243, 245 (1954). It is an integral part of the Law of the

Land clause, which guarantees that “[n]o person shall be taken, imprisoned, or

disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any

manner deprived of his life, liberty, or property, but by the law of the land.”

8 Robinson also argues that the retroactivity provision is (1) an ex post facto law; (2)
in violation of his vested rights; (3) a bill of attainder; (4) an arbitrary application of the death
penalty; and (5) in violation of the separation of powers. Because this Court holds that the
double jeopardy protections afforded under the North Carolina Constitution’s Law of the
Land Clause bar Robinson from being resentenced to death, we do not address Robinson’s
other constitutional arguments.

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N.C. Const. art. I, § 19; State v. Sanderson, 346 N.C. 669, 676, 488 S.E.2d 133,

136 (1997) (citing Crocker, 239 N.C. 446, 80 S.E.2d 243) (noting that the prohibition

against double jeopardy is embodied in the Law of the Land Clause of the

North Carolina Constitution).9 This clause has appeared in every version of the

North Carolina Constitution. See N.C. Const. of 1776, Declaration of Rights, § 12;

N.C. Const. of 1886, art. I, § 17; N.C. Const. art. I, § 19.

A prohibition against double jeopardy was also included in the Bill of Rights of

the Constitution of the United States in 1791 and applies to the states through the

Fourteenth Amendment. U.S. Const. amend. V; Benton v. Maryland, 395 U.S. 784,

796, 89 S. Ct. 2056, 2063 (1969). Our Court held that incorporation “added nothing

to our law” because North Carolina’s prohibition against double jeopardy “has always

been an integral part of the law of North Carolina.” State v. Battle, 279 N.C. 484,

486, 183 S.E.2d 641, 643 (1971). North Carolina’s prohibition against double

jeopardy, found in our Law of the Land Clause, predates any protections afforded

under the Constitution of the United States. See Crocker, 239 N.C. at 449, 80 S.E.2d

at 245 (finding that double jeopardy protections are an integral part of the Law of the

Land Clause of our state constitution); State v. Prince, 63 N.C. 529, 531 (1869) (noting

that the prohibition against double jeopardy “is a sacred principle of the [English]

9 The Law of the Land Clause, which dates back to Chapter 39 of the Magna Carta,
originally appeared in Section 12 of the Declaration of Rights in 1776 and read “[t]hat no
freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or
outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property,
but by the law of the land.” See Magna Carta ch. 39 (1215); see also John V. Orth & Paul M.
Newby, The North Carolina State Constitution 68 (2d ed. 2013).

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common law”); State v. Garrigues, 2 N.C. 241, 242 (1795) (disallowing the retrial of a

defendant for the same offense after a hung jury).

In interpreting the double jeopardy protections of our state’s Law of the Land

Clause, we have often been guided by the decisions of the Supreme Court of the

United States. See Sanderson, 346 N.C. 669, 488 S.E.2d 133. However, “[q]uestions

concerning the proper construction and application of the North Carolina

Constitution can be answered with finality only by this Court.” State v. Jackson,

348 N.C. 644, 648, 503 S.E.2d 101, 103 (1998). This Court has “the responsibility to

protect the state constitutional rights of the citizens,” and this obligation “is as old as

the State.” Corum v. Univ. of N.C. Through Bd. of Governors, 330 N.C. 761, 783,

413 S.E.2d 276, 290 (1992). Thus, although we base our holding on the North Carolina

Constitution, we may treat as persuasive the Supreme Court of the United States’

reasoning regarding the double jeopardy protections afforded by the Constitution of

the United States; we do so in this case. See State ex rel. Martin v. Preston, 325 N.C.

438, 450, 385 S.E.2d 473, 479 (1989) (observing that although this Court is not bound

by the Supreme Court of the United States when interpreting state laws and our

constitution, the reasoning used may be persuasive); Bulova Watch Co., Inc. v. Brand

Distribs. of N. Wilkesboro, Inc., 285 N.C. 467, 474, 206 S.E.2d 141, 146 (1974) (noting

that “in the construction of the provision of the State Constitution, the meaning given

by the Supreme Court of the United States to even an identical term in the

Constitution of the United States is, though highly persuasive, not binding upon this

Court”).

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Double jeopardy protections apply only if there has been some event, such as

an acquittal, that terminates the original jeopardy. Richardson v. United States,

468 U.S. 317, 325, 104 S. Ct. 3081, 3086 (1984). If jeopardy is terminated by an

acquittal, the State is barred from appealing any decision that might subject the

defendant to another trial for the same offense. See State v. Gardner, 315 N.C. 444,

451, 340 S.E.2d 701, 707 (1986). An acquittal is “any ruling that the prosecution’s

proof is insufficient to establish criminal liability for an offense.” Evans v. Michigan,

568 U.S. 313, 318, 133 S. Ct. 1069, 1074–75 (2013). The prohibition on review of

acquittals is one of the most fundamental rules in the history of double jeopardy.

United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349,

1354 (1977); see also Evans, 568 U.S. at 318, 133 S. Ct. at 1074; Fong Foo v. United

States, 369 U.S. 141, 143, 82 S. Ct. 671, 672 (1962); Green v. United States, 355 U.S.

184, 188, 78 S. Ct. 221, 224 (1957). Accordingly, acquittals are final and unreviewable,

even if based in error. Ball v. United States, 163 U.S. 662, 671, 16 S. Ct. 1192,

1195 (1896).

This is true even when the error made by the trial court is patent and

unambiguous. In Fong Foo, the trial court, sua sponte in the middle of trial, directed

the jury to acquit the defendant, which it did. Fong Foo, 369 U.S. at 141–42, 82 S. Ct.

at 671. As an explanation, the trial court alleged that the prosecutor had behaved

improperly and that the witnesses had been unconvincing. The Court of Appeals for

the First Circuit held that the trial court had no power to grant the mid-trial

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 STATE V. ROBINSON
Opinion of the Court

acquittal, and it subsequently directed the trial court to vacate the judgment and

remanded the case for a new trial. Id. at 142, 82 S. Ct. at 671.

The Supreme Court of the United States reversed, holding that the case

“terminated with the entry of a final judgment of acquittal,” which “could not be

reviewed without putting (the petitioners) twice in jeopardy”—an act flatly prohibited

by the Fifth Amendment. Id. at 143, 82 S. Ct. at 672 (quoting Ball, 163 U.S. at 671,

16 S. Ct. at 1195). The Court acknowledged that it was reasonable to believe that the

acquittal should be set aside because it “was based upon an egregiously erroneous

foundation,” but to set it aside would, nevertheless, violate the constitution. Id. The

Supreme Court has “applied Fong Foo’s principle broadly.” Evans, 568 U.S. at 318,

133 S. Ct. at 1074.

An acquittal, whether granted by the jury, the trial court, or an appellate court,

is non-reviewable. See Arizona v. Rumsey, 467 U.S. 203, 210, 104 S. Ct. 2305,

2309 (1984) (noting that the fact the sentencer was the trial court rather than the

jury did not limit double jeopardy protections); Burks v. United States, 437 U.S. 1, 17,

98 S. Ct 2141, 2150 (1978) (stating that the “purposes of the [Double Jeopardy] Clause

would be negated” if double jeopardy did not prohibit retrial after an appellate court’s

finding of insufficient evidence); United States v. Morrison, 429 U.S. 1, 3, 97 S. Ct. 24,

26 (1976) (concluding that the trial court’s finding of guilt is equivalent to a jury

verdict of guilt for double jeopardy purposes).

Double jeopardy protections also extend to capital sentencing proceedings.

Sanderson, 346 N.C. at 676, 488 S.E.2d at 136. Unlike other sentencing proceedings

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 STATE V. ROBINSON
Opinion of the Court

when the sentencer has “unbound discretion to select an appropriate punishment

from a wide range” and the prosecutor “simply recommend[s] what [he or she

believes] to be an appropriate punishment,” capital sentencing proceedings bear “the

hallmarks of the trial on guilt or innocence.” Bullington v. Missouri, 451 U.S. 430,

438–39, 101 S. Ct. 1852, 1858 (1981). Those proceedings present the sentencer with

a choice between two alternatives, provide statutory standards to guide their

decision-making, and require the prosecutor to prove certain additional facts in order

to justify a particular sentence. Id.

In capital sentencing proceedings, a defendant is acquitted of the death penalty

for purposes of double jeopardy when a life sentence is imposed after a finding that

the State’s evidence was insufficient to prove the existence of a single aggravating

circumstance. Rumsey, 476 U.S. at 211, 104 S. Ct. at 2310. A life sentence “based on

findings sufficient to establish legal entitlement to the life sentence[ ] amounts to an

acquittal on the merits.” Id. Therefore, the relevant inquiry to determine whether

imposition of a life sentence was an acquittal for purposes of double jeopardy is

“whether the sentencing judge or the reviewing court has ‘decid[ed] that the

prosecution has not proved its case’ for the death penalty.” Poland v. Arizona,

476 U.S. 147, 154, 106 S. Ct. 1749, 1754 (1986) (alteration in original) (quoting

Bullington, 451 U.S. at 443, 101 S. Ct. at 1860).

Our jurisprudence confirms that this is the proper inquiry. In Sanderson, we

clarified that double jeopardy protections do not attach to each and every aggravating

circumstance not sufficiently proved by the State, but rather attach in whole when

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 STATE V. ROBINSON
Opinion of the Court

the State has failed to prove the existence of any aggravating circumstance.

Sanderson, 346 N.C. at 679, 488 S.E.2d at 138. This is because in the capital

sentencing phase the State’s burden is not to prove the existence of every aggravating

circumstance—akin to proving every essential element of a crime—but to prove the

existence of at least one. N.C.G.S. § 15A-2000(c)(1) (2019). If the State fails to prove

the existence of at least one aggravating circumstance, then the defendant is

acquitted of the death penalty, jeopardy terminates, and the State may not seek to

reimpose capital punishment. Id.

A defendant is acquitted of the charges against him when the State fails to

carry its burden to prove the essential elements of an offense. Evans, 568 U.S. at 318,

133 S. Ct. at 1074–75. He may also be acquitted when the State proves every

essential element of the crime, but the defendant successfully proves the existence of

an excuse or justification in the form of an affirmative defense that negates his

criminal liability.

In Burks, the defendant’s principal defense at trial was the affirmative defense

of insanity. Burks, 437 U.S. at 2, 98 S. Ct. at 2143. On appeal, he admitted that the

State had proven the necessary elements to convict him of the offense but argued that

the State had not presented sufficient evidence to overcome his affirmative defense.

Id. at 3, 98 S. Ct. at 2413. The Court of Appeals for the Sixth Circuit agreed, finding

insufficient evidence that the State had “effectively rebu[tted]” the testimony of the

defendant’s three expert witnesses regarding his affirmative defense. Id. at 4,

98 S. Ct. at 2143. The defendant’s judgment was vacated, and the case was remanded

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 STATE V. ROBINSON
Opinion of the Court

so the trial court could determine whether he should receive a directed verdict or a

new trial. Id. Defendant appealed, arguing that the appellate court’s ruling

constituted an acquittal, regardless of whether it was entered before or after the

verdict. Id. at 5, 98 S. Ct. at 2144. The Supreme Court of the United States agreed

and held that “the Double Jeopardy Clause precludes a second trial once the

reviewing court has found the evidence legally insufficient.” Id. at 18, 98 S. Ct.

at 2150–51.

The same principles apply here because claims for relief under the RJA were

similar in kind to an affirmative defense. Though the State carried its burden at trial

by proving the existence of at least one aggravating circumstance, the Act allowed

Robinson to be acquitted of the death penalty by presenting evidence that racial

discrimination infected his trial and capital sentencing proceedings. The Act provided

the State an opportunity to present rebuttal evidence, but the trial court found the

State’s rebuttal evidence to be insufficient. Just as in Burks, the fact that this

“acquittal” was made by a reviewing court after the original trial in Robinson’s case

does not negate or limit his double jeopardy protections.

Once the trial court found that Robinson had proven all of the essential

elements under the RJA to bar the imposition of the death penalty, he was acquitted

of that capital sentence, jeopardy terminated, and any attempt by the State to

reimpose the death penalty would be a violation of our state’s constitution.

We conclude that the trial court’s order resentencing Robinson to life in prison

was an acquittal for purposes of double jeopardy. The sentence was imposed after a

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 STATE V. ROBINSON
Opinion of the Court

hearing bearing “the hallmarks of the trial on guilt or innocence” and was based on

findings sufficient to establish that Robinson was legally entitled to the imposition of

a life sentence. See Bullington, 451 U.S. at 438–39, 101 S. Ct. at 1858. In finding that

Robinson had proven his entitlement to relief under the RJA, the trial court acquitted

him of the death penalty.

The RJA required the trial court to determine whether Robinson had proven

his claim that his sentence of death was sought or imposed on the basis of his race.

The Act established both the type and scope of evidence that Robinson could use to

meet his burden. Original RJA, § 1, 2009 N.C. Sess. Laws at 1214. The trial court’s

order included findings of fact that established, in great detail, that Robinson had

presented sufficient evidence to establish that race played a significant factor in the

State’s decision to seek or impose the death penalty and that his sentence was

obtained on the basis of race. The trial court’s order also included findings of fact

establishing that the State had not offered evidence sufficient to rebut this

determination. These findings established that Robinson was legally entitled to a life

sentence under the Act. Therefore, the trial court did not merely impose a life

sentence, it acquitted Robinson of the death penalty based on findings he was legally

entitled to receive a life sentence under the Act.

Death penalty acquittals receive double jeopardy protection because of “both

the trial-like proceedings at issue and the severity of the penalty at stake.” Monge v.

California, 524 U.S. 721, 733, 118 S. Ct. 2246, 2253 (1998) (emphasis omitted). The

death penalty is the most serious punishment the state can impose, and the interests

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 STATE V. ROBINSON
Opinion of the Court

protected by our Law of the Land Clause are consequently at their zenith. This Court

has previously recognized that “the State with all its resources and power should not

be allowed to make repeated attempts to convict an individual.” State v. Courtney,

372 N.C. 458, 462, 831 S.E.2d 260, 264 (2019) (quoting Green v. United States,

355 U.S. 184, 187–88, 78 S. Ct. 221, 223 (1957)). To allow it to do so creates an

“unacceptably high risk that the [State], with its superior resources, [will] wear down

a defendant.” Bullington, 451 U.S. at 445, 101 S. Ct. at 1861. The State must also not

be allowed to use its superior resources and power to make repeated attempts to have

a defendant sentenced to death, especially after that defendant has followed the

procedures created by the state, has proven all that was required to be proved, and

has been awarded relief under the statutory scheme designed by the state.10

The General Assembly passed legislation barring death sentences obtained on

the basis of race. Robinson filed a timely motion for appropriate relief and presented

10 Justice Ervin’s dissenting opinion argues that Robinson is entitled to a new hearing, based
on this Court’s decision in State v. Ramseur, but it fails to recognize the significance of subjecting
Robinson to an additional RJA hearing in its double jeopardy analysis. Citing to the case of United
States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013 (1975), the dissent argues that double jeopardy
considerations do not prevent the government’s ability to appeal an acquittal because reversal would
simply reinstate the original verdict. However, if this matter were remanded for an additional hearing,
the trial court would not be able to merely reinstate the original verdict. Instead, it would conduct a
full RJA hearing, subjecting Robinson to an additional RJA proceeding. In the case of Rumsey, the
Supreme Court expressly rejected the applicability of Wilson in the context of capital sentencing
proceedings. Rumsey, 467 U.S. at 211, 104 S. Ct. at 2310. It reasoned that double jeopardy was not
implicated in Wilson because, on remand, the trial court would “simply order the jury’s guilty verdict
reinstated” and the defendant would not be subjected to a second trial. Id. at 211-212, 104 S. Ct. at
2310. The Supreme Court noted that that if it were to remand the matter, the trial court would hold
an additional capital sentencing hearing and would not merely reinstate the original verdict. Id. at
212, 104 S. Ct. at 2310.

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 STATE V. ROBINSON
Opinion of the Court

sufficient evidence to show that he was entitled to a sentence of life imprisonment

without parole. The State failed to present sufficient rebuttal evidence. After

Robinson was granted relief, the General Assembly limited the use of the very

statistical evidence that he had relied upon. After Walters, Augustine, and Golphin

also showed that their sentences were sought or obtained on the basis of race, the

General Assembly repealed the legislation altogether. The State is not only seeking

another attempt at imposing a death sentence, it is seeking another attempt after

having created a process which provided relief upon a showing of racial

discrimination. If our constitution does not permit the State to use its power and

resources over and over to obtain a conviction or impose the death penalty, it certainly

does not allow the state to use that same power and resources to eliminate the remedy

after a defendant has successfully proven his entitlement to that relief.

Double jeopardy protections provide certainty for defendants so that once

acquitted of the death penalty, they have finality such that they may not later be

resentenced to death. It also provides that same closure to the families of victims so

that they are not asked to endure additional legal proceedings, never sure whether

the current proceeding will, in fact, be the last. Additional proceedings beyond the

hearing on Robinson’s motion for appropriate relief would fail to protect either

interest.

The Law of the Land Clause and the protections it affords against double

jeopardy are older than this state. Those protections exist to protect defendants

against the abuse of the State’s virtually unlimited power to pursue prosecutions and

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 STATE V. ROBINSON
Opinion of the Court

the interests that they protect—a defendant’s very life and liberty—are the

weightiest interests that our state and federal constitutions serve to protect. We hold

that the State is barred from reimposing a death sentence under Article I, Section 19

of our state constitution, and Robinson’s sentence of life imprisonment without the

possibility of parole must be reinstated.11

IV.

A valid judgment of a competent court is “the real and only authority for the

lawful imprisonment of a person who pleads or is found guilty of a criminal offense.”

In re Swink, 243 N.C. 86, 90, 89 S.E.2d 792, 795 (1955). A judgment is final when

there is no statutory basis for appeal and no petition for writ of certiorari has been

filed. State v. Green, 350 N.C. 400, 408, 514 S.E.2d 724, 729 (1999).

The North Carolina Rules of Appellate Procedure allow for review of judgments

and orders through a writ of certiorari, but review of a judgment or an order must be

sought by the party seeking review. N.C. R. App. P. 21(a)(1). The distinction between

11 We briefly address the impact of this Court’s 18 December 2015 order vacating the
trial court’s order resentencing Robinson. The State filed a petition for writ of certiorari,
which this Court allowed, asking this Court to review whether the trial court erred in: (1) its
interpretation of the Racial Justice Act; (2) its findings of fact and conclusions of law; and (3)
its failure to grant the State’s third motion to continue. This Court ultimately determined
that the trial court “abused its discretion by denying petitioner’s third motion for a
continuance” and remanded the matter for “reconsideration of respondent’s motion for
appropriate relief.” State v. Robinson, 368 N.C. 596, 596–97, 780 S.E.2d 151, 151–52 (2015).
We issued a similar order in the cases of Walters, Augustine, and Golphin. See State v.
Augustine, 368 N.C. 594, 780 S.E.2d 552 (2015). Having now determined that defendant was
acquitted of the death penalty under the Racial Justice Act, we conclude that any error by
the trial court did not alter the essential character of the acquittal and our previous order
does not impact our ultimate conclusion that Section 1, Article 19 of the North Carolina
Constitution bars the reinstatement of defendant’s capital sentence.

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 STATE V. ROBINSON
Opinion of the Court

seeking review of a judgment and seeking review of an order is also present in Rule 4,

which governs appeals in criminal cases. See N.C. R. App. P. 4(b) (“The notice of

appeal . . . shall designate the judgment or order from which appeal is taken . . . .”);

see also State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542, 543 (2010) (holding

that the court lacked jurisdiction to hear the defendant’s appeal of his judgment

because the defendant appealed only the trial court’s order denying his motion to

suppress, not the trial court’s final judgment).

Here, the State failed to petition this Court for review of the judgment through

a writ of certiorari. When the trial court entered its order granting Robinson’s motion

for appropriate relief on 20 April 2012, it also entered a separate judgment and

commitment order resentencing him to life in prison, pursuant to N.C.G.S. § 15A-

1301. On 10 July 2012, the State filed a petition for writ of certiorari, which this Court

allowed, that sought review of the order granting Robinson’s motion for appropriate

relief but not the trial court’s judgment and commitment order vacating Robinson’s

death sentence and resentencing him to life in prison. No notice of appeal or petition

for writ of certiorari was filed by the State as to the judgment or commitment order.

Further, we note that parties must petition for review of post-conviction proceedings

in death penalty cases within sixty days after delivery of the transcript of the hearing

on the motion for appropriate relief to the petitioning party, a deadline that elapsed

years ago. N.C. R. App. P. 21(f). Therefore, the State has failed to seek review of and

now cannot seek timely review of the judgment sentencing Robinson to life in prison.

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 STATE V. ROBINSON
Opinion of the Court

Furthermore, the State lacked the statutory authority to seek review of the

judgment; it is, therefore, final and not subject to appellate review. The General

Assembly has granted the State the statutory authority to seek appellate review in

limited circumstances, and we construe those statutes narrowly. State v. Elkerson,

304 N.C. 658, 669, 285 S.E.2d 784, 791 (1982).

As a threshold matter, the General Assembly did not grant the State the power

to appeal through the RJA. See Original RJA, §§ 1–2, 2009 N.C. Sess. Laws at 1213–

15. The Act did provide that the procedures and hearing “shall follow and comply with

G.S. 15A-1420, 15A-1421, and 15A-1422.” Id., § 1, 2009 N.C. Sess. Laws at 1215.

Section 15A-1422 of the North Carolina General Statutes provides the State the right

to seek review of a trial court’s ruling on a motion for appropriate relief, but review

is limited to those filed pursuant to N.C.G.S. § 15A-1415. N.C.G.S. § 15A-1422(c)

(2019). Robinson’s motion for appropriate relief was not filed pursuant to N.C.G.S.

§ 15A-1415. Rather, it was filed pursuant to the Act. Therefore, we find that the State

lacked the statutory authority to appeal Robinson’s judgment pursuant to N.C.G.S.

§ 15A-1422.

The State’s only other statutory right to appeal is contained in N.C.G.S. § 15A-

1445, which provides the State a right to appeal in the following circumstances,

unless prohibited by the rule against double jeopardy:

(1) When there has been a decision or judgment dismissing
criminal charges as to one or more counts.

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 STATE V. ROBINSON
Opinion of the Court

(2) Upon the granting of a motion for a new trial on the
ground of newly discovered or newly available evidence but
only on questions of law.

(3) When the State alleges that the sentence imposed:

(a) Results from an incorrect determination of the
defendant’s prior record level under G.S. 15A-
1340.14 or the defendant’s prior conviction level
under G.S. 15A-1340.21;

(b) Contains a type of sentence disposition that is not
authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23
for the defendant’s class of offense and prior record
or conviction level;

(c) Contains a term of imprisonment that is for a
duration not authorized by G.S. 15A-1340.17 or
G.S. 15A-1340.23 for the defendant’s class of offense
and prior record or conviction level; or

(d) Imposes an intermediate punishment pursuant
to G.S. 15A-1340.13(g) based on findings of
extraordinary mitigating circumstances that are not
supported by evidence or are insufficient as a matter
of law to support the dispositional deviation.

N.C.G.S. § 15A-1445(a)(1)–(3) (2019). None of these provisions grant the State the

statutory authority to appeal the trial court’s judgment sentencing Robinson to life

in prison. Therefore, the State lacked and continues to lack the statutory authority

to appeal life sentences entered pursuant to the RJA.

Because the retroactivity provision of the RJA Repeal violates the double

jeopardy protections of the North Carolina Constitution, because the State failed to

appeal the judgment of the trial court, and because the State lacked the statutory

authority to appeal that judgment in any event, we vacate the trial court’s order

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 STATE V. ROBINSON
Opinion of the Court

dismissing Robinson’s claim under the RJA and remand for the reinstatement of a

sentence of life imprisonment without parole.

VACATED AND REMANDED.

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 Justice HUDSON concurring in result.

While I agree with the majority that this case is controlled by double jeopardy

principles stemming from the Law of the Land Clause of the North Carolina

Constitution, I prefer to rely on the analysis of Part IV of the majority opinion. I do

not agree that the trial court’s lengthy order entered on 20 April 2012 was final; the

State was permitted to and did seek review of it by filing a petition for writ of

certiorari as provided by the Racial Justice Act. For the reasons set forth in Part IV

of the majority opinion, however, I agree that the separate judgment and commitment

order in which defendant Robinson was sentenced to life imprisonment without the

possibility of parole, entered on that same date, was and remains a final judgment of

which appellate review was neither sought nor obtained. Therefore, double jeopardy

precludes further review of the judgment. Accordingly, I respectfully concur in the

result.
 Justice NEWBY dissenting.

As a monarch, King Louis XVI once famously said, “C’est légal, parce que je le

veux” (“It is legal because it is my will.”).1 Today, four justices of this Court adopt the

same approach to the law, violating the norms of appellate review and disregarding

or distorting precedent as necessary to reach their desired result. Apparently, in their

view, the law is whatever they say it is.

In essence the majority opinion presents three novel and unsupported theories

of double jeopardy:

1) In the majority opinion Part III, it argues that this Court lacked the

authority to vacate the 2012 RJA order, despite our order explicitly vacating it based

on our holding that the trial court procedure was fundamentally flawed. Thus, the

2012 RJA order was not vacated and any attempt at appellate review violates double

jeopardy principles.

2) In the majority opinion Part IV, it argues that, while this Court had the

authority to review the 2012 RJA order and the corresponding amended judgment

and commitment order (the amended J & C), the State failed to seek review of the

amended J & C. In its petition for writ of certiorari which this Court granted, the

State only sought review of the underlying 2012 RJA order. While the 2012 RJA order

1Jay Winik, The Great Upheaval: America and the Birth of the Modern World, 1788–
1800 108 (HarperCollins 2007).
 STATE V. ROBINSON

Newby, J., dissenting

which was the basis for the amended J & C was vacated, our order did not vacate the

corresponding amended J & C. The amended J & C is thus a final order.

3) In the majority opinion Part IV, it argues that, while this Court had the

authority to review the 2012 RJA order, it did not have the authority to review the

corresponding amended J & C.

The only theory of the majority opinion that has four votes is the second theory.

Justice Hudson’s opinion concurring in the result notes that, while she believes the

State had the authority to seek review of the 2012 RJA order and corresponding

amended J & C, it only specifically sought review of the 2012 RJA order. Because the

State failed to seek review of the corresponding J & C, it became a final judgment.

Even though four justices agree on only one of the theories, because that theory is set

out in her opinion, and for ease of reading, I refer to Chief Justice Beasley’s opinion

as the “majority opinion.”

The votes of the four justices prevent defendant’s execution for murder. It

appears, however, that three justices may have a larger purpose: to establish that our

criminal justice system is seriously—and perhaps irredeemably—infected by racial

discrimination. To accomplish that purpose, the three adopt findings of fact made by

the trial court in an order previously vacated by this Court, the 2012 RJA order. Their

reliance on a vacated order is totally at odds with fundamental legal principles and

this Court’s many precedents holding that vacated orders are null and void. What

makes their action even more remarkable—and indefensible—is that we vacated that

-2-
 STATE V. ROBINSON

Newby, J., dissenting

order because the trial court denied the State adequate time to respond to the complex

statistical evidence presented by defendant in support of his motion for appropriate

relief under the Racial Justice Act. A one-sided version of the “facts” seems to suit

their purpose.

The only order properly before this Court is the one the trial court entered after

we vacated the 2012 RJA order and remanded the case, the 2017 remand order. The

2017 remand order dismissed defendant’s RJA MAR upon finding that the General

Assembly’s repeal of the RJA applied to defendant’s case. Because confining itself to

the 2017 remand order would deprive it of the opportunity to attack the motives of

prosecutors, jurors, and even judges, three justices try to revive the vacated order

through a misapplication of double jeopardy law that fully deserves to be labeled

judicial activism; the court is legislating changes in the law from the bench.

None of the majority opinion’s theories implicate the constitutional prohibition

against double jeopardy because none call into question the facts supporting

defendant’s conviction or the imposition of his capital sentence.

Although I dissented from this Court’s holding in State v. Ramseur, 843 S.E.2d

106 (N.C. 2020), that case plainly controls the outcome here. It holds that the General

Assembly’s repeal of the RJA does not apply retroactively. Based on the trial court

order which is actually before us, according to Ramseur and our 2015 order, we should

be returning this case to the trial court for a full hearing on the merits of defendant’s

RJA claim at a proceeding where the State has a fair chance to respond. Instead of

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 STATE V. ROBINSON

Newby, J., dissenting

doing the legally correct thing, the majority opinion picks its preferred destination

and reshapes the law to get there. Inasmuch as today’s decision cannot be justified

on any legal basis, I respectfully dissent.

I.

a. Defendant’s Crime and Punishment

In 1994 a jury convicted defendant of the murder of seventeen-year-old Erik

Tornblom, who would have been a senior at Douglas Byrd High School. State v.

Robinson, 342 N.C. 74, 78–80, 463 S.E.2d 218, 221–22 (1995) (Robinson I). Defendant

and his accomplice, seventeen-year-old Roderick Williams, shot Tornblom in the face

with a sawed-off shotgun after he agreed to give them a ride in his car. Id. at 79, 463

S.E.2d at 221. Before leaving the crime scene, defendant and Williams stole

Tornblom’s wallet and divided the twenty-seven dollars from it between them. Id. at

79, 463 S.E.2d at 221–22. Defendant admitted to law enforcement that they shot

Tornblom even though he “kept begging and pleading for [defendant and Williams]

not to hurt him, because he didn’t have any money.” Id. at 79, 463 S.E.2d at 221. Two

days before the murder, defendant told his aunt that “he was going to burn him a

whitey”; defendant repeated this statement three times. Id. at 80, 463 S.E.2d at 222.

At trial a witness testified that, the day after the murder, defendant admitted that

he had robbed a white man the night before and had shot him in the head. Id.2

2 Despite the heinous nature of this crime, and the crimes committed by the
defendants listed in footnote 7, the majority opinion hollowly asserts that its judicial
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 STATE V. ROBINSON

Newby, J., dissenting

Defendant pled guilty to the charges of first-degree kidnapping, robbery with

a dangerous weapon, possession of a weapon of mass destruction, felonious larceny,

and possession of a stolen vehicle. Id. at 78, 463 S.E.2d at 221. The State tried

defendant capitally on the count of first-degree murder. Id. On the murder charge,

the jury found defendant guilty both on the basis of premeditation and deliberation

and under the felony murder rule. Id. Defendant filed a pretrial motion, citing Batson

v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), but neither the State nor the defense

raised a Batson objection during jury selection. See Batson, 476 U.S. at 79, 106 S. Ct.

at 1712 (holding that the Equal Protection Clause forbids a prosecutor from

challenging potential jurors solely on account of their race and setting the factual

threshold for a defendant to establish a prima facie case of purposeful discrimination

in jury selection).

At the sentencing phase of the trial, the trial court presented the jury with the

statutory aggravating circumstances supported by the evidence, see Robinson I, 342

N.C. at 85–86, 463 S.E.2d at 225; the jury was required to find that one or more of

those aggravating circumstances existed beyond a reasonable doubt and outweighed

any mitigating circumstances before recommending the death penalty, see N.C.G.S.

§ 15A-2000(c)(1)–(3) (2019). In recommending the death penalty, the jury

unanimously found as aggravating circumstances that the murder was committed

elimination of the capital sentence “do[es] not negate or diminish [defendant’s] guilt or the
impact of his crimes on the victim’s family, the victim’s friends, and the community.”

-5-
 STATE V. ROBINSON

Newby, J., dissenting

while defendant was engaged in the commission of first-degree kidnapping and

robbery with a firearm and that the murder was especially heinous, atrocious, or

cruel. Robinson I, 342 N.C. at 88–89, 463 S.E.2d at 227; see N.C.G.S. § 15A-2000(e)(5),

(9) (2019). Consistent with the jury’s recommendation, and as required by statute,

the trial court entered a death sentence. Id.; see, e.g., N.C.G.S. § 15A-2000 (2019).

On direct appeal, this Court unanimously found no error either in the trial or

in the sentencing proceeding for the first-degree murder conviction and affirmed

defendant’s sentences, including the death sentence. Robinson I, 342 N.C. at 91, 463

S.E.2d at 228. Defendant raised no claims of racial discrimination on appeal. This

decision included a proportionality review, in which this Court found the punishment

consistent with other capital sentences given the circumstances of the crime. Id. at

88–91, 463 S.E.2d at 227–28. The Supreme Court of the United States denied further

review. Robinson v. North Carolina, 517 U.S. 1197, 116 S. Ct. 1693 (1996). Defendant

exhausted both state and federal post-conviction review and received a full

evidentiary hearing in state court on his motion for appropriate relief (MAR).

Defendant was scheduled to be executed on 26 January 2007, but his execution has

been stayed.3

3On 22 January 2007, defendant filed a civil action in Superior Court, Wake County
and obtained injunctive relief of his execution on the grounds that use of lethal injection to
execute him would violate the Eighth Amendment.

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Newby, J., dissenting

b. The 2012 RJA Order

Defendant committed his crimes in 1991, before the original RJA was enacted

in 2009. On 11 August 2009 the RJA became law, which allowed defendant and other

death row inmates one year to file a motion pursuant to the Act. North Carolina

Racial Justice Act, S.L. 2009-464, § 2, 2009 N.C. Sess. Laws 1213, 1215 [hereinafter

the RJA] (codified at N.C.G.S. § 15A-2010 (2009)) (repealed 2013). Defendant filed a

motion pursuant to the RJA (RJA MAR) on 6 August 2010. Defendant offered as his

primary evidence a statistical study conducted by professors at the Michigan State

University College of Law between 2009 and 2011, assessing jury selection statistics

from across North Carolina. At the start of the hearing, the State moved for a third

continuance because it needed more time to collect additional data from prosecutors

throughout the state in order to address the study. See State v. Robinson, 368 N.C.

596, 597, 780 S.E.2d 151, 152 (2015) (Robinson II). The trial court denied that motion.

Id. The trial court conducted a hearing and entered an order dated 20 April 2012 with

a corresponding amended J & C. In its 2012 RJA order, the trial court stated:

“[H]aving determined that Robinson is entitled to appropriate relief as to [his RJA

claims], [the court] concludes that Robinson is entitled to have his sentence of death

vacated, and Robinson is resentenced to life imprisonment without the possibility of

parole.” The amended J & C was entered based solely on this ruling in the 2012 RJA

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Newby, J., dissenting

order.4 This Court allowed the State’s petition for writ of certiorari to review the 2012

RJA order (including the amended J & C entered with it).5

After careful review, on 18 December 2015, this Court vacated the 2012 RJA

order, including the corresponding amended J & C. Robinson II, 368 N.C. at 597, 780

S.E.2d at 152. In our order, we stated:

Central to [defendant’s] proof in this case is a statistical
study that professors at the Michigan State University
College of Law conducted between 2009 and 2011.
[Defendant] gave [the State] all of the data used for the
study in May 2011 and a report summarizing the study’s
findings in July 2011. [Defendant] then provided the final
version of the study to [the State] in December 2011,
approximately one month before the hearing on
[defendant’s] motion began. At the start of the hearing, [the
State] moved for a third continuance because it needed
more time to collect additional data from prosecutors
throughout the state and to address [defendant’s] study.
The trial court denied the motion.

Id. at 596, 780 S.E.2d at 151. We determined that the trial court should have allowed

the State’s motion to continue:

Section 15A-952 of the Criminal Procedure Act requires a
trial court ruling on a motion to continue in a criminal
proceeding to consider whether a case is “so unusual and

4 Four justices hold that the State failed to seek review of this amended J & C.
5 Before this Court could review the trial court’s order, however, the legislature
repealed the statutory provisions upon which defendant’s RJA MAR relied. Act of June 13,
2013, S.L. 2013-154, § 5.(a), 2013 N.C. Sess. Laws 368, 372 [hereinafter the RJA Repeal]. On
19 June 2013, the RJA was repealed in its entirety. RJA Repeal, §§ 5.(a), 6, 2013 N.C. Sess.
Laws at 372. On its face, the RJA Repeal legislation was to apply retroactively, though it
exempted any judgments granting relief under the RJA that were affirmed on appeal and
became final orders before the repeal’s effective date. Id., § 5.(d), 2013 N.C. Sess. Laws at
372.

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Newby, J., dissenting

so complex” that the movant needs more time to adequately
prepare. N.C.G.S. § 15A-952(g)(2) (2013). [Defendant’s]
study concerned the exercise of peremptory challenges in
capital cases by prosecutors in Cumberland County, the
former Second Judicial Division, and the State of North
Carolina between 1990 and 2010. The breadth of
[defendant’s] study placed [the State] in the position of
defending the peremptory challenges that the State of
North Carolina had exercised in capital prosecutions over
a twenty-year period. [The State] had very limited time,
however, between the delivery of [defendant’s] study and
the hearing date. Continuing this matter to give [the State]
more time would have done no harm to [defendant], whose
remedy under the Act was a life sentence without the
possibility of parole. See N.C.G.S. § 15A-2012(a)(3). Under
these exceptional circumstances, fundamental fairness
required that [the State] have an adequate opportunity to
prepare for this unusual and complex proceeding.
Therefore, the trial court abused its discretion by denying
[the State’s] third motion for a continuance.

Id. (emphasis added). This Court further concluded that “[t]he trial court’s failure to

give [the State] adequate time to prepare resulted in prejudice.” Id. at 597, 780 S.E.2d

at 151–52.6 In its decision, this Court “express[ed] no opinion on the merits of

[defendant’s] motion for appropriate relief,” but vacated the 2012 RJA order and

remanded to the trial court to “address [the State’s] constitutional and statutory

challenges pertaining to the Act.” Id. at 596, 780 S.E.2d at 152. With the 2012 RJA

order vacated, the case was remanded to the trial court to consider the State’s

challenges and, if needed, to conduct a new hearing, after giving the State adequate

6In seeking to reinstate the 2012 RJA order, the majority opinion remarkably faults
the State for its failure to “present sufficient rebuttal evidence” despite this fundamentally
flawed procedure.

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Newby, J., dissenting

time to prepare. Id.; see also State v. Augustine, 368 N.C. 594, 780 S.E.2d 552 (2015).7

The Supreme Court of the United States denied defendant’s request to review this

7 For the same and additional reasons, this Court also vacated a combined trial court
order addressing RJA claims of three other defendants in State v. Augustine, 368 N.C. 594,
780 S.E.2d 552 (2015). On remand, since the primary issue involved whether the RJA Repeal
could be applied retroactively, the trial court considered the viability of defendant’s RJA MAR
post-repeal along with the RJA MARs filed by the three defendants.
In State v. Augustine, 359 N.C. 709, 616 S.E.2d 515 (2005), this Court affirmed
defendant Augustine’s conviction for first-degree murder on the basis of malice,
premeditation and deliberation and affirmed his death sentence for the killing of Officer Roy
Gene Turner, Jr. In that case, one witness testified that he heard defendant Augustine say
that “he was angry because his brother had ‘[gotten] some time’ and that he wanted to shoot
a police officer,” id. at 713, 616 S.E.2d at 520 (alteration in original), and other witnesses
testified that they “saw defendant [Augustine] take a black pistol out of his pocket and cock
it while the officer was still in his car. As Officer Turner emerged from his vehicle, defendant
[Augustine] raised himself up on the telephone booth and fired three or four rounds at close
range, causing the officer to fall to his knees.” Id. at 714, 616 S.E.2d at 521.
In State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), co-defendants and brothers
Kevin Salvador Golphin and Tilmon Charles Golphin, Jr., were tried capitally and each were
convicted of two counts of first-degree murder, two counts of robbery with a dangerous
weapon, one count of assault with a deadly weapon with intent to kill, one count of
discharging a firearm into occupied property, and one count of possession of a stolen vehicle.
Id. at 379, 533 S.E.2d at 183. In that case, the evidence showed that the defendants shot and
killed two police officers, Trooper Lloyd E. Lowry and Deputy David Hathcock, when the
officers stopped the defendants while responding to a dispatch call that identified the
defendants as fleeing the scene of a robbery of a finance company while driving a stolen
vehicle. Id. at 380, 533 S.E.2d at 183–84.
In State v. Walters, 357 N.C. 68, 588 S.E.2d 344 (2003), defendant Walters was tried
capitally, was found guilty of two counts of first-degree murder on the basis of premeditation
and deliberation and under the felony murder rule, and was sentenced to death for both. Id.
at 75, 588 S.E.2d at 349. Along with the murder charges, defendant Walters was found guilty
of nine other felonies arising out of a gang’s crime spree that involved, inter alia, multiple
random kidnappings of women and their execution-style shooting, ultimately resulting in the
death of two of those victims, Susan Moore and Tracy Lambert, and serious injury to the
other victim, Debra Cheeseborough. Id. at 75–78, 588 S.E.2d at 349–50. “One of the two
murder victims watched as her friend was fatally shot in her presence. The other begged to
be shot versus having her throat cut before she was shot in the head. The surviving victim
was kidnapped at gunpoint.” Id. at 113, 588 S.E.2d at 371.
This Court’s decision today would seem to control the outcome of these cases as well.

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Newby, J., dissenting

Court’s order vacating the 2012 RJA order. Robinson v. North Carolina, 137 S. Ct. 67

(2016). Thus, without question, the decision by this Court to vacate the 2012 RJA

order is final.

c. The 2017 Remand Order

On remand, consistent with this Court’s order, the trial court only considered

whether the retroactive repeal of the RJA rendered void defendant’s RJA MAR. It

ultimately dismissed defendant’s RJA MAR in an order filed on 25 January 2017,

citing the legislature’s intent that the 19 June 2013 repeal of the RJA apply

retroactively. The trial court determined that “[t]his repealing legislation . . .

unambiguously expressed the conclusion of the legislature that statistical evidence

should not and could not be used to prove purposeful racial discrimination in a specific

case.” The statutory language, as the trial court noted, acknowledges that capital

defendants retain all the constitutional rights, safeguards, and protections, including

the right to a trial free from racial bias, that they enjoyed before the enactment of the

RJA, during its tenure, and following its repeal. See Act of June 13, 2013, S.L. 2013-

154, § 5.(b), 2013 N.C. Sess. Laws 368, 372 [hereinafter the RJA Repeal]. But, as the

trial court concluded, the RJA Repeal “prohibited statistical evidence from unrelated

cases from admission in evidence in a specific case.”

The trial court acknowledged that the statutory language, on its face, “provides

that it is retroactive and applies to any MAR filed pursuant to the RJA before 19 June

2013, and that all MARs filed before that date are void. Each MAR in these cases was

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Newby, J., dissenting

filed prior to the effective date of the act, 13 June 2013[;]” therefore, the RJA Repeal

should retroactively apply to them. Applying the statutory language of the RJA

Repeal, the trial court determined that the “resentencing orders to life imprisonment

without parole were not affirmed upon appellate review, and because th[o]se orders

were subject to appellate review, and were vacated, they were not final orders by a

court of competent jurisdiction.” The trial court concluded that, because no final order

had been entered on defendant’s RJA claims or his claims under the amended RJA,

those claims were controlled by the RJA Repeal, and his RJA claims were void as a

matter of law.

Having interpreted the statutory language as determinative, the trial court

acknowledged contentions “that the repeal of the Racial Justice Act violates

[defendants’] constitutional rights or limits access to the protections from

discrimination that already exist under the North Carolina and United States

Constitutions.” Such contentions must overcome the presumption that the General

Assembly enacts constitutional legislation. Relying on case law from this Court, the

trial court concluded that a final judgment, rather than the filing of a MAR, could

vest a defendant’s right to a remedy under the RJA. Without a final judgment, the

statutory remedy can be repealed by the legislature without constitutional

implications.

In short, the remand trial court determined that, because no final order had

been entered on defendant’s RJA claims, those claims were controlled by the repeal

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Newby, J., dissenting

of the RJA, and his RJA claims were void as a matter of law. The trial court concluded

that the unconditional repeal of the RJA warranted the dismissal of defendant’s RJA

motion, citing Spooners Creek Land Corp. v. Styron, 276 N.C. 494, 496, 172 S.E.2d

54, 55 (1970), and In re Incorporation of Indian Hills, 280 N.C. 659, 663, 186 S.E.2d

909, 912 (1972).

d. Effect of the Vacated 2012 RJA Order

The 2017 remand order and this order alone is the subject of our review in this

case. The 2012 RJA order, including its corresponding amended J & C, having been

vacated no longer exists.

Significantly, on remand the trial court never conducted an evidentiary

hearing or reached the merits of defendant’s RJA claims. The State has never had an

opportunity to present its evidence. Legally, there is no trial court order on the merits;

it was vacated. Though I disagree with its decision, this Court has previously

addressed the merits of the 2017 remand order in Ramseur, 843 S.E.2d 106, and

invalidated the retroactive nature of the RJA Repeal. Id. at 118; see id. at 122–39

(Newby, J., dissenting).8

As stated in Justice Ervin’s dissent, the decision in Ramseur should control

this matter. But, unwilling to simply follow the law and decide the issue presented,

the majority opinion takes the unprecedented and indefensible step of attempting to

8This dissent’s analysis of the RJA, including its separation-of-powers discussion, is
hereby incorporated by reference.

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Newby, J., dissenting

recreate and reinstate a trial court order that legally no longer exists. The only trial

court order granting defendant relief under the RJA, the 2012 RJA order, has been

declared null and void. The majority opinion, by an act of judicial will, seeks to

resurrect whole cloth the 2012 RJA order, which this Court held to have been based

on a fundamentally flawed process. See Robinson II, 368 N.C. at 597, 780 S.E.2d at

151–52. Thus, this Court vacated it as a result of its unfair proceedings. Id. (“The

trial court’s failure to give [the State] adequate time to prepare resulted in prejudice.

Without adequate time to gather evidence and address [defendant’s] study, [the

State] did not have a full and fair opportunity to defend this proceeding.” (internal

citations omitted)). Nonetheless, the majority opinion faults the State for its failure

to present adequate rebuttal evidence.

A vacated order is treated as if the order were never entered. See Alford v.

Shaw, 327 N.C. 526, 543 n.6, 398 S.E.2d 445, 455 n.6 (1990) (defining “vacate” as “[t]o

annul; to set aside; to cancel or rescind. To render an act void; as, to vacate an entry

of record, or a judgment” (quoting Black’s Law Dictionary 1388 (rev. 5th ed. 1979))).

It “render[s] the judgment null and void”; if a judgment is vacated, “no part of it could

thereafter be the law of the case.” Id. “A void judgment is, in legal effect, no judgment.

No rights are acquired or d[i]vested by it. It neither binds nor bars any one, and all

proceedings founded upon it are worthless—as if judgment be rendered without

service on the party, or his appearance.” Stafford v. Gallops, 123 N.C. 19, 21–22, 31

S.E. 265, 266 (1898) (citations omitted). Regardless of the nature of the trial court’s

order, once it is vacated, it has no legal effect. Furthermore, the 2012 RJA order
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Newby, J., dissenting

procedurally is not even before this Court. Nonetheless, without analysis or apology,

the majority opinion simply seeks to recreate it by raw judicial power. Despite the

irredeemably flawed procedure and the State’s never having had an opportunity to

present its evidence, the majority opinion relies on and seeks to enforce the 2012 RJA

order.

As stated earlier, the majority opinion presents three arguments only one of

which garners four votes, resulting in the narrow holding that the State failed to

appeal the amended J & C so that order is final. This argument is presented in Part

IV of the majority opinion. Nonetheless, this dissent will address the arguments in

the order in which they are presented in the majority opinion.

II.

Even if by some judicial magic the 2012 RJA order were recreated and properly

before the Court procedurally, the majority opinion’s creative double jeopardy

analysis is flawed. I agree with Justice Ervin’s assessment that the double jeopardy

argument is “barred by the law of the case doctrine.” Furthermore, in a capital-

sentencing context, double jeopardy only applies if the final reviewing court

determines that the State failed to present evidence sufficient to establish an

aggravating circumstance as required to justify a capital sentence. If the State failed

to present sufficient evidence, it does not get another chance. Here there is no dispute

that more than sufficient evidence supported the jury’s finding of both aggravating

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Newby, J., dissenting

circumstances, justifying the jury’s death sentence recommendation. Thus, a double

jeopardy claim is not viable.

At the time of its passage, the General Assembly intended the RJA to provide

a new MAR procedure through which a capitally sentenced defendant could

collaterally challenge a death sentence. The RJA’s procedure does not equate to a

defendant’s capital-sentencing proceeding because it does not conform to the

standards of a criminal trial. It does not negate the facts of the underlying offense or

aggravating circumstances, and it cannot serve as an affirmative defense to a

sentence imposed during a defendant’s capital sentencing. The RJA was simply a

mechanism for a defendant to collaterally attack his sentence. Given that on appeal

this Court vacated the only trial court order under the RJA, that order cannot

constitute a final judgment on defendant’s RJA MAR let alone an “acquittal” for

double jeopardy purposes. There is no legal support for this approach. The majority

opinion misstates and misapplies double jeopardy principles.

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 (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 the Romans); State v.

Brunson, 327 N.C. 244, 247, 393 S.E.2d 860, 863 (1990) (recognizing the Law of the

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Newby, J., dissenting

Land Clause of the North Carolina Constitution as affording the same protections as

the Double Jeopardy Clause of the federal constitution). “The law of the land clause,

the basis for the former jeopardy defense in North Carolina, is conceptually similar

to federal due process,” and therefore we “view the opinions of the United States

Supreme Court with high regard in the context of interpreting our own law of the

land clause.” Brunson, 327 N.C. at 249, 393 S.E.2d at 864 (citations omitted). This

Court has previously rejected a “defendant’s contention that the law of this state

confers greater former jeopardy protection upon defendants than the federal law

does.” Id.

“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). The protections against double jeopardy prevent multiple

attempts to convict a defendant of an offense or to retry him for that offense when he

has already been acquitted. “It benefits the government by guaranteeing finality to

decisions of a court and of the appellate system, thus promoting public confidence in

and stability of the legal system. The objective is to allow the prosecution one

complete opportunity to convict a defendant in a fair trial.” Brunson, 327 N.C. at 249,

393 S.E.2d at 864 (1990) (citing Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct.

824, 830 (1978)).

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Newby, J., dissenting

Conceptually, “jeopardy” centers around the factual inquiry that determines

guilt or innocence. “[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 judge.” United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 554 (1971) (emphasis

added). A conviction or guilty plea brings finality if it represents the final judgment

“with respect to the guilt or innocence of the defendant.” See Burks v. United States,

437 U.S. 1, 15, 98 S. Ct. 2141, 2149 (1978) (discussing that “evidentiary insufficiency,”

rather than a trial error, decides whether the government has failed to prove its case

“with respect to the guilt or innocence of the defendant”). The protection against

double jeopardy provides that, “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 (2003). The State simply cannot retry a

convicted defendant in pursuit of harsher punishment. See Green v. United States,

355 U.S. 184, 190–91, 78 S. Ct. 221, 225–226 (1957).

Finding double jeopardy presupposes a preceding final judgment, see Burks,

437 U.S. at 15, 98 S. Ct. at 2149. It “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 (1984). “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

(1975); see also State v. Courtney, 372 N.C. 458, 463 n.5, 831 S.E.2d 260, 265 n.5
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Newby, J., dissenting

(2019) (“[T]he State may proceed with a retrial when a defendant secures the relief

of a new trial after an original conviction is vacated on appeal.”).

Jeopardy will always terminate following a defendant’s acquittal regardless of

whether the acquittal originated from a jury or judge. See Evans v. Michigan, 568

U.S. 313, 328–29, 133 S. Ct. 1069, 1080–81 (2013). Hence, “[a] verdict of acquittal on

the issue of guilt or innocence is, of course, absolutely final,” Bullington v. Missouri,

451 U.S. 430, 445, 101 S. Ct. 1852, 1861 (1981), even if obtained erroneously, see

Green, 355 U.S. at 188, 192, 78 S. Ct. at 223–24, 226. Notably, “an ‘acquittal’ cannot

be divorced from the procedural context,” Serfass, 420 U.S. at 392, 95 S. Ct. at 1064;

it has “no significance . . . unless jeopardy has once attached and an accused has been

subjected to the risk of conviction,” id. at 392, 95 S. Ct. at 1065.

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 (1977). An acquittal is “any ruling that the prosecution’s proof is

insufficient to establish criminal liability for the offense.” Evans, 568 U.S. at 318, 133

S. Ct. at 1074–75. In a capital-sentencing context, insufficient proof to establish

criminal liability supporting the capital sentence means that the State failed to

present evidence sufficient to prove that at least one of the statutory aggravating

circumstances existed at the time that the defendant committed the capital offense.

Like proving a criminal offense in the guilt or innocence phase of a capital trial, these

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Newby, J., dissenting

circumstances must be presented to a jury, and the jury must find at least one of the

statutory aggravating circumstances existed beyond a reasonable doubt to impose the

death penalty.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the Supreme

Court of the United States clarified that “if the existence of any fact (other than a

prior conviction) increases the maximum punishment that may be imposed on a

defendant, that fact—no matter how the State labels it—constitutes an element, and

must be found by a jury beyond a reasonable doubt.” Sattazahn, 537 U.S. at 111, 123

S. Ct. at 739 (citing Apprendi, 530 U.S. at 482–84, 120 S. Ct. at 2348). Thus, in the

capital-sentencing context, aggravating circumstances that make a defendant eligible

for the death penalty “operate as ‘the functional equivalent of an element of a greater

offense.’ ” Id. (quoting Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 2428

(2002)). It is in that sense that the sentencing phase of a capital trial carries the

“hallmarks of the trial on guilt or innocence.” Bullington, 451 U.S. at 439, 101 S. Ct.

at 1858; id. at 438, 101 S. Ct. at 1858 (“The presentence hearing resembled and,

indeed, in all relevant respects was like the immediately preceding trial on the issue

of guilt or innocence.”). North Carolina’s death penalty statutes reflect these

principles. See, e.g., N.C.G.S. § 15A-2000(c), (e), (f) (2019).9

9Following a guilty verdict of first-degree murder, in a separate trial phase the jury
considers aggravating circumstances from a comprehensive list, N.C.G.S. § 15A-2000(e),
presented pursuant to the Rules of Evidence, see N.C.G.S. § 8C-1 (2019), and weighs any
mitigating circumstances in the defendant’s favor, N.C.G.S. § 15A-2000(f). The jury must find
the existence of an aggravating circumstance beyond a reasonable doubt and that that
circumstance outweighs any mitigating circumstances before recommending the death
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Newby, J., dissenting

“If a jury unanimously concludes that a State has failed to meet its burden of

proving the existence of one or more aggravating circumstances, double-jeopardy

protections attach to that ‘acquittal’ on the offense of ‘murder plus aggravating

circumstance(s).’ ” Sattazahn, 537 U.S. at 112, 123 S. Ct. at 740. The reason for this

determination “is not that a capital-sentencing proceeding is ‘comparable to a trial,’

but rather that ‘murder plus one or more aggravating circumstances’ is a separate

offense from ‘murder’ simpliciter.” Id. (first quoting Arizona v. Rumsey, 467 U.S. 203,

209, 104 S. Ct. 2305, 2309 (1984); then citing Bullington, 451 U.S. at 438, 101 S. Ct.

at 1861) (internal citations omitted)).

In a capital-sentencing context, only after there has been a finding that no

aggravating circumstance is present can a defendant claim an acquittal, State v.

Sanderson, 346 N.C. 669, 679, 488 S.E.2d 133, 138 (1997), and “the touchstone for

double-jeopardy protection in capital-sentencing proceedings is whether there has

been an ‘acquittal,’ ” Sattazahn, 537 U.S. at 109, 123 S. Ct. at 738. “[A]n acquittal on

the merits by the sole decisionmaker in the proceeding is final and bars retrial on the

same charge.” Poland v. Arizona, 476 U.S. 147, 154, 106 S. Ct. 1749, 1754 (1986)

(citing Rumsey, 467 U.S. at 211, 104 S. Ct. at 2310).

penalty. N.C.G.S. § 15A-2000(c)(1)–(3). This Court automatically reviews cases where a death
sentence is imposed to ensure the defendant received a fair trial, free from prejudicial error,
and that the death sentence was proportional to the facts of the defendant’s individual case.
See N.C.G.S. § 7A-27(a)(1) (2019).

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Newby, J., dissenting

The majority opinion correctly defines the term “acquittal” initially, but then

blurs the lines between capital trials, capital-sentencing proceedings, and post-

conviction procedures to broaden its definition. Simply referring to an event as an

acquittal, however, does not make it so. For an event to be an “acquittal,” it must tie

factually to a defendant’s guilt or innocence of the offense charged or factually

determine that an aggravating circumstance to justify the death penalty does not

exist. That definition of an acquittal remains the same and must be met regardless

of the stage of the defendant’s proceedings, whether during a defendant’s capital trial

or capital-sentencing proceedings, on appeal, or during post-conviction proceedings.

In Sattazahn the state statute required a unanimous jury to impose a death

sentence. Sattazahn, 537 U.S. at 109–10, 123 S. Ct. at 738–39. When a jury was

hopelessly deadlocked in the penalty stage, the same statutory scheme required the

judge to enter life sentence. Id. At defendant Sattazahn’s trial, the jury convicted him

but was hopelessly deadlocked on the death penalty, and the judge imposed a life

sentence. Id. at 104–05, 123 S. Ct. at 736. Defendant Sattazahn appealed, and the

appellate court reversed the first-degree murder conviction and remanded the case

for a new trial. Id. at 105, 123 S. Ct. at 736. On remand the State presented evidence

of an additional aggravating circumstance, the jury again convicted defendant

Sattazahn of first-degree murder, but this time imposed a death sentence. Id. Both

the conviction and sentence were affirmed on appeal. Id. On review the Supreme

Court of the United States determined that defendant Sattazahn’s original life

sentence was not an acquittal on the merits, id. at 109, 123 S. Ct. at 738, reiterating
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Newby, J., dissenting

that “it is not the mere imposition of a life sentence that raises a double-jeopardy

bar,” id. at 107, 123 S. Ct. at 737. The judge’s imposition of a life sentence during the

first trial was not an “acquittal” for double jeopardy purposes because the jury’s

inability to agree did not constitute a finding of fact that no aggravating circumstance

existed. See id. at 112–13, 123 S. Ct. at 740.10

In Bobby v. Bies, 556 U.S. 825, 129 S. Ct. 2145 (2009), the Supreme Court of

the United States considered a post-conviction attempt to vacate a defendant’s death

sentence based on the aggravating and mitigating circumstances the jury considered

at his capital-sentencing proceeding. Id. at 831, 129 S. Ct. at 2150. In its analysis, the

Supreme Court distinguished an actual acquittal for double jeopardy purposes from

a post-conviction attempt to vacate a death sentence. Id. at 829, 129 S. Ct. at 2149.

Defendant Bies argued that a then-recent case Atkins v. Virginia, 536 U.S. 304, 122

S. Ct. 2242 (2002), which prohibited the execution of intellectually disabled

defendants, entitled him to post-conviction sentencing relief. Id. at 832, 129 S. Ct. at

2151. Defendant Bies contended that, because the jury in his case had found his

10 A jury can also revisit previously submitted aggravating circumstances in a new
capital-sentencing proceeding without implicating double jeopardy, if there has been no
conclusive factual finding on those factors. Sanderson, 346 N.C. at 679, 488 S.E.2d at 138
(Double jeopardy principles did not prevent a jury’s consideration of aggravating
circumstances in a third capital-sentencing proceeding when neither jury previously found
that no aggravating circumstance existed). Compare Poland, 476 U.S. at 154, 106 S. Ct. at
1755 (The failure to find one particular aggravating circumstance is not an acquittal for
double jeopardy purposes and does not preclude the death penalty.), with Rumsey, 467 U.S.
at 203, 205, 104 S. Ct. at 2305, 2307 (A life sentence imposed by a judge during a capital-
sentencing proceeding, who found no aggravating circumstances, constituted an acquittal of
the death penalty for purposes of the Double Jeopardy Clause.).

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Newby, J., dissenting

intellectual disability to be a mitigating circumstance at his prior sentencing hearing,

the jury essentially found facts sufficient to settle the issue of his intellectual

disability. Id. Considering this fact-finding as a type of “issue preclusion,” the federal

appeals court concluded that it, in conjunction with defendant Bies’s newly

recognized “Aktins defense” of intellectual disability, “acquitted” defendant Bies of

his death sentence and vacated his death sentence. Id. at 832–33, 129 S. Ct. at 2151.

In that court’s view, any proceedings on defendant Bies’s intellectual disability would

violate double jeopardy. Id. at 833, 129 S. Ct. at 2151.

On review the Supreme Court of the United States first reiterated that “[t]he

touchstone for double-jeopardy protection in capital-sentencing proceedings is

whether there has been an ‘acquittal.’ ” Id. (quoting Sattazahn, 537 U.S. at 109, 123

S. Ct. at 738). Since the State presented sufficient evidence to support the jury’s

finding of aggravated circumstances during the capital-sentencing proceeding, and

the jury then voted to impose the death penalty, there was no “acquittal.” Id. at 833–

34, 129 S. Ct. at 2152. The State did not “twice put [defendant Bies] in jeopardy”

because “neither the judge nor the jury had acquitted the defendant in his first . . .

proceeding by entering findings sufficient to establish legal entitlement to the life

sentence.” Id. at 833, 129 S. Ct. at 2151–52 (first quoting U.S. Const. amend. V; then

quoting Sattazahn, 537 U.S. at 108–09, 123 S. Ct. at 738). The issue in Bies did not

involve serial prosecutions or an attempt by the State to procure a conviction or to

increase defendant Bies’s punishment, but rather his “second run at vacating his

death sentence.” Id. at 833–34, 129 S. Ct. at 2152 (quoting Bies v. Bagley, 535 F.3d
-24-
 STATE V. ROBINSON

Newby, J., dissenting

520, 531 (6th Cir. 2008) (Sutton, J., dissenting)). Such an inquiry does not implicate

double jeopardy. Id.

A RJA MAR hearing does not involve serial prosecutions or an attempt by the

State to procure a conviction or to increase a defendant’s punishment. It is not akin

to a trial on the merits as to the issue of punishment. The subject matter of the RJA

hearing is unrelated to the murder that led to a defendant’s conviction and sentence.

Even if relief is granted under the RJA, it does not invalidate, excuse, or justify a

defendant’s guilt for that murder. A RJA hearing does not seek to increase a

defendant’s punishment; a defendant asserting RJA claims has already received the

highest punishment available. Even if relief is initially granted under the RJA, a RJA

hearing does not invalidate the aggravating circumstances that justified the

imposition of the death sentence as required for an acquittal. Because defendant here

“cannot establish that the jury or the court ‘acquitted’ him during his first capital-

sentencing proceeding,” Sattazahn, 537 U.S. at 109, 123 S. Ct. at 738, double jeopardy

does not apply.

Nonetheless, the majority opinion creatively cites Burks in an attempt to

support its argument. See Burks, 437 U.S. 1, 98 S. Ct. 2141. Burks, however, simply

stands for the same basic proposition that the evidence presented at the guilt or

innocence phase of defendant’s capital trial must be sufficient to justify a defendant’s

conviction. Id. At his trial for a bank robbery, defendant Burks relied on an insanity

defense and presented multiple expert witnesses to support that theory. Id. at 2–3,

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Newby, J., dissenting

98 S. Ct. at 2143. The prosecution offered, inter alia, its expert witnesses in rebuttal,

but they acknowledged defendant Burks’s “character disorder” and one of those

witnesses equivocally answered whether defendant Burks was capable of conforming

his conduct to the law. Id. at 3, 98 S. Ct. at 2143. Defendant Burks unsuccessfully

moved for an acquittal before the case was submitted to the jury, which found him

guilty. Id. Following his conviction, he argued that the evidence was insufficient to

support the guilty verdict, and the trial court denied any relief. Id.

On direct appeal the reviewing court held that the prosecution had failed to

rebut defendant Burks’s proof of insanity at the guilt or innocence phase, a defense

that could excuse his criminal culpability for the offense itself. Id. at 17–18, 98 S. Ct.

at 2150–51. The appellate court reversed and remanded the case for the trial court to

decide whether defendant was entitled to a new trial or a directed verdict of acquittal.

Id. at 4, 98 S. Ct. at 2144.

On appeal to the Supreme Court of the United States, the issue presented was

“whether a defendant may be tried a second time when a reviewing court has

determined that in a prior trial the evidence was insufficient to sustain the verdict of

the jury.” Id. at 5, 98 S. Ct. at 2144. The Supreme Court concluded that, once the

reviewing court found the evidence presented at his first trial insufficient to warrant

a guilty verdict, the protection against double jeopardy prevented a second trial

during which the prosecution could try to supply the evidence once lacking and secure

a guilty verdict. Id. at 18, 98 S. Ct. at 2150–51.

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Newby, J., dissenting

The appellate decision unmistakably meant that the [trial
court] had erred in failing to grant a judgment of
acquittal. . . . The Double Jeopardy Clause forbids a second
trial for the purpose of affording the prosecution another
opportunity to supply evidence which it failed to muster in
the first proceeding. This is central to the objective of the
prohibition against successive trials.

Id. at 11, 98 S. Ct. at 2147 (footnote omitted). The Supreme Court then placed

defendant Burks’s scenario within the traditional double jeopardy protection that

prevents a series of trials and repeated attempts to convict a defendant of a criminal

offense:

The Clause does not allow “the State . . . to make repeated
attempts to convict an individual for an alleged offense,”
since “[t]he constitutional prohibition against ‘double
jeopardy’ was designed to protect an individual from being
subjected to the hazards of trial and possible conviction
more than once for an alleged offense.”

Id. (quoting Green, 355 U.S. at 187, 78 S. Ct. at 223).

The RJA, however, does not constitute an affirmative defense to a capital

offense because RJA relief does not negate proof of the elements of any capital offense

or any aggravating circumstance in capital sentencing. The cases relied on by the

majority opinion only find an acquittal when the evidence is legally insufficient to

support proof of the offense committed or proof of the aggravating factors beyond a

reasonable doubt. Defendant has already been convicted at his capital trial, received

the highest sentence possible at his capital-sentencing proceeding before a jury, and

both his conviction and sentence has been affirmed on appeal. Defendant has never

received an “acquittal on the merits.” See Poland, 476 U.S. at 154, 106 S. Ct. at 1754.

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Newby, J., dissenting

RJA claims are not part of a defendant’s capital trial or capital-sentencing

proceeding at all, but must be pursued by filing a collateral MAR. A post-conviction

hearing on a RJA MAR does not bear “the hallmarks of the trial on guilt or innocence,”

as argued by the majority opinion because, as it also concedes, defendant’s guilt or

any other factual inquiry surrounding the nature of the offense at the time of its

commission are not at issue.

To support the desired outcome, the majority opinion here seeks to expand the

interpretation of double jeopardy far beyond that recognized by our case law or that

of the federal courts. Without authority, the majority opinion tries to embed that

expansive interpretation into our state constitution. Notably, this Court has held that

the double jeopardy protection provided by our state constitution provides no greater

protection than its federal counterpart. Brunson, 327 N.C. at 249, 393 S.E.2d at 864

(rejecting the “defendant’s contention that the law of this state confers greater former

jeopardy protection upon defendants than the federal law does”).

III.

Recognizing the deficiencies in its double jeopardy analysis based on its

attempt to resurrect the 2012 RJA order, the majority opinion submits alternative

theories, again unsupported by law: The majority opinion argues that the State only

sought appellate review of the 2012 RJA order, not the corresponding amended J & C

entered pursuant to the 2012 RJA order. The majority opinion reasons that, even if

the 2012 RJA order were vacated, the companion amended J & C remains effective

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 STATE V. ROBINSON

Newby, J., dissenting

because it was not part of the certiorari review allowed by this Court. As previously

noted, this theory—that the State failed to seek review of the amended J & C—is the

only theory for which there are four votes. The majority opinion further argues that

the State was prohibited from seeking any appellate review of the amended J & C.

Both of these creative arguments are indefensible. The only legal basis for the

trial court’s entry of the amended J & C was the 2012 RJA order. By allowing the

State’s petition for writ of certiorari to review the court’s ruling of defendant’s RJA

MAR, this Court granted review of the entire proceeding. Once the 2012 RJA order

was vacated, everything arising from it was likewise void. It is nonsensical to concede

that the 2012 RJA order was properly before the Court, but the amended J & C was

not. Similarly, there is no support that this Court’s review of the amended J & C was

prohibited. Both under our state constitution and applicable statutes the State had

the authority to seek appellate review. Finally, as previously discussed, the validity

of the 2012 RJA order with its corresponding amended J & C is not procedurally

before this Court.

The General Assembly intended the RJA to allow a capitally sentenced

defendant to collaterally challenge a death sentence by generally following the MAR

procedures. Like any other trial court decision on a MAR, it is subject to appellate

review. By allowing the State’s petition for writ of certiorari, this Court provided

appellate review of the entire MAR proceeding, including the process and any

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 STATE V. ROBINSON

Newby, J., dissenting

resulting orders. It is indisputable that this Court has the authority to review the

actions of any lower court.

The state constitution recognizes this Court’s jurisdiction to review any

decision of the courts below, N.C. Const. art. IV, § 12, and that it has subject matter

jurisdiction regardless whether the trial court grants or denies relief, see id. art IV,

§ 12(1) (“The Supreme Court shall have jurisdiction to review upon appeal any

decision of the courts below, upon any matter of law or legal inference.”). This basic

principle of appellate review rings particularly true here because this Court has

appellate jurisdiction by statute over death penalty cases like this one. See N.C.G.S.

§ 7A-27(a)(1) (2019).

I agree with the statutory analysis of Justice Ervin in his dissenting opinion

that the amended J & C was subject to appellate review which we granted when this

Court allowed the State’s petition for writ of certiorari. Our case law supports this

perspective. In State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2015), this Court

determined “the Court of Appeals has subject matter jurisdiction to review the State’s

appeal from a trial court’s ruling on a [MAR] when the defendant has been granted

relief in the trial court.” Id. at 41, 42–43, 770 S.E.2d at 76. In that case, defendant

Stubbs’s 1973 guilty plea resulted in a sentence of life imprisonment, id. at 40, 770

S.E.2d at 75, but under the new Structured Sentencing Act, the length of his sentence

would have likely been much shorter, id. at 40 n.1, 770 S.E.2d at 75 n.1 (citing

N.C.G.S. §§ 15A-1340.10 to 1340.23 (effective 1 Oct. 1994)). In 2011 defendant Stubbs

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Newby, J., dissenting

filed a pro se MAR in the Superior Court, Cumberland County arguing that the new

Structured Sentencing Act made “significant changes” in the sentencing laws and

that his 1973 sentence now constituted cruel and unusual punishment under the

Eighth Amendment to the federal constitution. Id. at 40, 770 S.E.2d at 75. After an

evidentiary hearing, the trial court agreed, granted the MAR, and vacated defendant

Stubbs’s judgment and life sentence. Id. The trial court then resentenced defendant

Stubbs to a term of thirty years, applied time served, and ordered his immediate

release. Id. The State sought review by a petition for writ of certiorari. Id.

A panel of the Court of Appeals reversed the trial court’s order and remanded

to the trial court for reinstatement of the original 1973 sentence. Id. In doing so, it

“addressed whether it had subject matter jurisdiction to review the State’s appeal

from a trial court’s decision on a defendant’s MAR when the defendant prevailed in

the trial court.” Id. at 42, 770 S.E.2d at 75. In taking up this same question on appeal,

this Court first noted that “the General Assembly has specified when appeals relating

to MARs may be taken” by writ of certiorari, for instance, when “the time for appeal

has expired and no appeal is pending.” Id. at 42–43, 770 S.E.2d at 76 (quoting

N.C.G.S. § 15A-1422(c) (2014)). “[S]ubsection 15A-1422(c) does not distinguish

between a MAR when the State prevails below and a MAR under which the defendant

prevails.” Id. at 43, 770 S.E.2d at 76.

Accordingly, given that our state constitution authorizes
the General Assembly to define the jurisdiction of the
Court of Appeals, and given that the General Assembly has
given that court broad powers “to supervise and control the

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Newby, J., dissenting

proceedings of any of the trial courts of the General Court
of Justice,” [N.C.G.S.] § 7A-32(c), and given that the
General Assembly has placed no limiting language in
subsection 15A-1422(c) regarding which party may appeal
a ruling on an MAR, we hold that the Court of Appeals has
jurisdiction to hear an appeal by the State of an MAR when
the defendant has won relief from the trial court.

Id. A trial court may not unilaterally reduce sentences without being subjected to

appellate review. A trial court’s order on a MAR is subject to review regardless of the

prevailing party or subject matter. Significantly, this Court did not distinguish

between review of the trial court’s MAR ruling and any corresponding amended

J & C.

In State v. Bowden, 367 N.C. 680, 766 S.E.2d 320 (2014), defendant Bowden

unsuccessfully sought application of various credits to his life sentence at the trial

court through a petition for writ of habeas corpus and later following a MAR hearing

under N.G.G.S. § 15A-1420. Id. at 681–82, 766 S.E.2d at 321–22. Upon a second

remand from the Court of Appeals, the trial court granted defendant relief and

calculated and applied all of his credits to determine that defendant had served his

entire sentence. Id. at 682, 766 S.E.2d at 322. Notably, though ordering defendant’s

unconditional release, the trial court anticipatorily “stayed its order the following day

pending final appellate review.” Id. (emphasis added). This Court reversed,

recognizing that these credits have never applied toward the calculation of an

unconditional release date for a similarly situated inmate like Bowden serving a life

sentence.” Id. at 685–86, 766 S.E.2d at 324. Even though the trial court had ordered

defendant Bowden’s immediate release through a MAR, this Court reversed upon
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 STATE V. ROBINSON

Newby, J., dissenting

review, and defendant “remain[ed] lawfully incarcerated.” Id. Like defendant Stubbs,

defendant Bowden received more than one round of appellate review, both with the

Court of Appeals and with this Court, even though he was twice denied relief by the

trial court and once granted relief by the trial court.

Here the 2012 RJA order including the corresponding amended J & C, has been

subjected to appellate review, has been determined to be the result of a

fundamentally flawed procedure, and has been vacated. A vacated trial court order

certainly carries no degree of finality and is void. See Robinson II, 368 N.C. at 597,

780 S.E.2d at 152.

It is ludicrous to say that defendant’s resentencing in the amended J & C can

stand alone when that resentencing could only legally occur based on the underlying

2012 RJA order. Certainly, the State sought review of defendant’s resentencing

through its petition for writ of certiorari when it sought review of the 2012 RJA order.

That order explicitly stated that, “having determined that Robinson is entitled to

appropriate relief as to [his RJA claims], . . . Robinson is entitled to have his sentence

of death vacated, and Robinson is resentenced to life imprisonment without the

possibility of parole.” The amended J & C simply effectuated this order. There is no

legal support for the holding that the State failed to appeal the amended J & C.

IV.

In its apparent eagerness to undermine defendant’s death sentence, the

majority opinion steps outside our time-honored judicial role of simply deciding the

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 STATE V. ROBINSON

Newby, J., dissenting

case before us. Of the three novel theories presented, only one, the narrowest, has

four votes. These four justices hold that the State failed to seek judicial review of the

amended J & C when this Court allowed review of the 2012 RJA order. As with the

other two theories, there is no legal support for this position. There is no explanation

of how an amended J & C, which effectuated the 2012 RJA order can legally exist

apart from the 2012 RJA order. It does exist and is given substance purely by four

votes. The majority opinion’s extraordinary judicial activism is completely

unnecessary. This case should be controlled by our prior decision in Ramseur and

remanded to the trial court for a new RJA hearing. The majority opinion’s result

guarantees that the State will never have a fair hearing in court. The ultimate

damage to our jurisprudence and public trust and confidence in our judicial system

is yet to be determined. I dissent.

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 Justice ERVIN, dissenting

I am unable to join the Court’s decision to reinstate the trial court’s original

order and judgment sentencing defendant to a term of life imprisonment rather than

death based upon a determination that Judge Weeks’ order finding that defendant’s

race had been a significant factor in the imposition of his death sentence was entitled

to double jeopardy effect and that the State had not sought and was not entitled to

seek appellate review of the judgment that Judge Weeks entered in light of the

determination reflected in his order. On the contrary, I believe that the Court’s

holding that Judge Weeks’ “order resentencing [defendant] to life in prison was an

acquittal for purposes of double jeopardy” (1) fails to take the procedural context in

which that decision was made into account despite the fact that the double jeopardy-

related rules applicable to acquittals that occur before and after the initial verdict are

different and (2) implicitly vacates this Court’s 2015 order overturning Judge Weeks’

decision and remanding this case to the Superior Court, Cumberland County, State

v. Robinson, 368 N.C. 596, 780 S.E.2d 151 (2015), cert. denied, 137 S. Ct. 67, 196 L.

Ed. 2d 34 (2016), despite the fact that the State sought review of Judge Weeks’

decision in accordance with the applicable statutory provisions and prevailed before

this Court on procedural grounds. As a result, given my belief that the Court’s

decision is simply inconsistent with the relevant decisions of this Court and the

Supreme Court of the United States and with this Court’s statutory authority to

review decisions of the trial court in proceedings conducted pursuant to the Racial
 STATE V. ROBINSON

Ervin, J., dissenting

Justice Act, I respectfully dissent from the Court’s decision and would, instead,

reverse the trial court’s order and remand this case to the Superior Court,

Cumberland County, for a hearing concerning the merits of defendant’s Racial Justice

Act claim on the basis of the logic set out in this Court’s decision in State v. Ramseur,

843 S.E.2d 106 (2020), and our 2015 order.

As an initial matter, the Court’s determination that Judge Weeks’ order

granting relief pursuant to the Racial Justice Act constituted a final acquittal for

double jeopardy purposes cannot be squared with the relevant decisions of the

Supreme Court,1 which have stated that, in the event that a defendant is acquitted

following a jury verdict or a decision made at a bench trial, double jeopardy

considerations do not prevent the government from appealing the acquittal decision

given that an appellate reversal would simply reinstate the original verdict rather

than subject the defendant to a second trial. See United States v. Wilson, 420 U.S.

332, 344–45, 95 S. Ct. 1013, 1022, 43 L. Ed. 2d 232, 242 (1975). In view of the fact

that the effect of an appellate decision vacating Judge Weeks’ order and the related

judgment and remanding this case to the Superior Court, Cumberland County, for

further proceedings would, depending upon the result reached on remand, at most,

1 As this Court has previously stated, the double jeopardy protection inherent in
article I, section 19 of the state constitution affords the same protections to criminal
defendants as the double jeopardy provision of the Fifth Amendment to the Constitution of
the United States. State v. Oliver, 343 N.C. 202, 205, 470 S.E.2d 16, 18 (1996) (discussing
double jeopardy and N.C. Const. art. I, § 19).

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Ervin, J., dissenting

have the effect of reinstating the original jury verdict and the resulting death

sentence, I am not persuaded that Judge Weeks’ order and the related judgment were

entitled to preclusive effect or that the order and judgment must be reinstated.

In Wilson, the defendant was charged with converting union funds in order to

pay for his daughter’s wedding reception in violation of federal law. Id. at 333, 95 S.

Ct. at 1017, 43 L. Ed. 2d at 235–36. The government began its investigation into the

defendant’s alleged unlawful conduct in April 1968, concluded that investigation in

June 1970, and did not indict the defendant for another sixteen months, formally

charging him three days prior to the expiration of the applicable statute of

limitations. Id. at 333–34, 95 S. Ct. at 1017, 43 L. Ed. 2d at 235–36. The defendant

filed a pretrial motion seeking to have the indictment dismissed on the grounds that

the government’s delay in charging him had prejudiced his ability to obtain a fair

trial given that two defense witnesses—one of whom had died and the other of whom

was suffering from a terminal illness—would be unavailable to testify. Id. at 334, 95

S. Ct. at 1017, 43 L. Ed. 2d at 236. After the trial court denied the defendant’s

dismissal motion, the jury found the defendant guilty. Id. Following the return of

the jury’s verdict, the defendant filed several post-verdict motions in which he

reiterated his assertion that, among other things, the charge that had been lodged

against him should have been dismissed on the basis of preindictment delay. Id. At

that point, the district court reversed itself and dismissed the indictment that had

been returned against the defendant on the grounds that he had been subject to

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 STATE V. ROBINSON

Ervin, J., dissenting

unreasonable preindictment delay that had prejudiced his ability to obtain a fair trial.

Id. Although the government appealed from the trial court’s order, the United States

Court of Appeals for the Third Circuit dismissed the government’s appeal on the

grounds that the trial court’s dismissal decision constituted an acquittal that was

entitled to double jeopardy effect. Id. at 335, 95 S. Ct. at 1017–18, 43 L. Ed. 2d at

236–37. After granting certiorari, the Supreme Court reversed the Third Circuit’s

decision on the grounds that the government was entitled to appeal from the district

court’s dismissal order given that the challenged order was not entitled to preclusive

effect.2 Id. at 352–53, 95 S. Ct. at 1026, 43 L. Ed. 2d at 246–47.

In rejecting the defendant’s argument that the Double Jeopardy Clause

precluded the government from appealing the district court’s dismissal order, the

Supreme Court recognized that “[t]he development of the Double Jeopardy Clause

from its common-law origins . . . suggests that it was directed at the threat of multiple

prosecutions, not at Government appeals, at least where those appeals would not

require a new trial.” Id. at 342, 95 S. Ct. at 1021, 43 L. Ed. 2d at 241. Thus, “where

there is no threat of either multiple punishment or successive prosecutions, the

Double Jeopardy Clause is not offended.” Id. at 344, 95 S. Ct. at 1022, 43 L. Ed. 2d

at 242. For that reason, prosecutorial appeals of adverse rulings noted after the

2The Supreme Court of the United States assumed, without deciding, that an order
dismissing a case based upon prejudicial preindictment delay would constitute an acquittal
for double jeopardy purposes. Wilson, 420 U.S. at 336, 95 S. Ct. at 1018, 43 L. Ed. 2d at 237.

-4-
 STATE V. ROBINSON

Ervin, J., dissenting

return of the jury’s verdict or the judge’s decision at the conclusion of a bench trial do

not implicate double jeopardy considerations because “reversal on appeal would

merely reinstate the jury’s verdict” without “offend[ing] the policy against multiple

prosecution.” Id. at 344–45, 95 S. Ct. at 1022, 43 L. Ed. 2d at 242. Simply put, the

“[c]orrection of [a post-verdict error of law by a trial judge] would not grant the

prosecutor a new trial or subject the defendant to the harassment traditionally

associated with multiple prosecutions.” Id. at 352, 95 S. Ct. at 1026, 43 L. Ed. 2d at

247. As a result, the Supreme Court held that, “when a judge rules in favor of the

defendant after a verdict of guilty has been entered by the trier of fact, the

Government may appeal from that ruling without running afoul of the Double

Jeopardy Clause,” id. at 352–53, 95 S. Ct. at 1026, 43 L. Ed. 2d at 247, and that, given

that the jury had returned a verdict convicting the defendant, the government’s

appeal from the district court’s order dismissing the indictment that had been

returned against the defendant could be entertained by the appellate courts without

placing the defendant in jeopardy multiple times for the same offense. Id. at 353, 95

S. Ct. at 1026–27, 43 L. Ed. 2d at 247 (stating that, “if [the defendant] prevails on

appeal, the matter will become final, and the Government will not be permitted to

bring a second prosecution against him for the same offense”).3

3 The Supreme Court has reiterated its decision that the Government is entitled to
seek appellate review of a post-verdict ruling acquitting a defendant as long as such an appeal
does not subject the defendant to multiple prosecutions or punishments on multiple occasions
since Wilson. See, e.g., Smith v. Massachusetts, 543 U.S. 462, 467, 125 S. Ct. 1129, 1134, 160
L. Ed. 2d 914, 922–23 (2005) (stating that, “[w]hen a jury returns a verdict of guilty and a

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Ervin, J., dissenting

Although this Court has not previously addressed the issue decided by the

Supreme Court in Wilson, the Court of Appeals has adopted an approach to this issue

that is consistent with the one that I believe to be appropriate. In State v. Scott, the

State appealed from the trial court’s order granting a post-verdict motion to dismiss

for insufficiency of the evidence. 146 N.C. App. 283, 285, 551 S.E.2d 916, 918 (2001),

rev’d on other grounds, 356 N.C. 591, 573 S.E.2d 866 (2002). In rejecting the

defendant’s contention that the State had no right to note an appeal from the trial

court’s dismissal order and that allowing the State’s appeal would result in a double

jeopardy violation, id. at 285–86, 551 S.E.2d at 918–19, the Court of Appeals began

by recognizing that, “[a]t common law, the State had no right to bring an appeal” and

could only be “authorized to do so by statute.” Id. at 285, 551 S.E.2d at 918. As a

general proposition, the State is entitled to pursue an appeal from an adverse trial

court decision “[u]nless the rule against double jeopardy prohibits further

prosecution,” including instances in which “there has been a decision or judgment

dismissing the criminal charges as to one or more counts.” N.C.G.S. § 15A-1445(a)(1)

(2019). In light of the fact that the trial court’s dismissal order constituted a decision

trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal,
the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury
verdict of guilty” (citing Wilson, 420 U.S. at 352–53, 95 S. Ct. at 1026, 43 L. Ed. 2d at 246–
47)); Evans v. Michigan, 568 U.S. 313, 329–30 n.9, 133 S. Ct. 1069, 1081 n.9, 185 L. Ed. 2d
124, 140 n.9 (2013) (stating that, “[i]f a court grants a motion to acquit after the jury has
convicted, there is no double jeopardy barrier to an appeal by the government from the court’s
acquittal, because reversal would result in reinstatement of the jury verdict of guilt, not a
new trial” (citing Wilson, 420 U.S. at 332, 95 S. Ct. at 1013, 43 L. Ed. 2d at 232)).

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or judgment dismissing criminal charges, the Court of Appeals concluded that “the

State [was] within its statutory authority to bring this appeal as long as it [did] not

violate the rule against double jeopardy,” Scott, 146 N.C. App. at 285, 551 S.E.2d at

918, and that the State’s appeal did not result in a double jeopardy violation because

“reversal would only serve to reinstate the verdict rendered by the jury,” with

“defendant [being] in no danger of re[-]prosecution [because] the appeal does not place

the defendant in double jeopardy.” Id. at 286, 551 S.E.2d at 918 (citing Wilson, 420

U.S. at 344–45, 95 S. Ct. at 1022–23, 43 L. Ed. 2d at 242). According to the Court of

Appeals, “[t]he emphasis of double jeopardy is on the possibility of [the] defendant

being subjected to a new trial—not whether the dismissal acts as a verdict of not

guilty”—and that, “[a]s long as [the] defendant would not be subjected to a new trial

on the issues, his double jeopardy rights have not been violated.” Id. at 286, 551

S.E.2d at 919. As a result, the Court of Appeals held that the State could lawfully

bring its appeal. Id.

Assuming, for the purpose of discussion, that Judge Weeks’ decision to grant

defendant’s motion for appropriate relief by affording defendant relief pursuant to

the Racial Justice Act and to enter a judgment sentencing him to a term of life

imprisonment constituted an acquittal as that term is used in double jeopardy

jurisprudence, that decision was not unreviewable and double jeopardy was not

implicated because any appellate reversal of that decision would, at most, result in

the reinstatement of the defendant’s original sentence and would not subject

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Ervin, J., dissenting

defendant to a new trial.4 All of the decisions upon which this Court relies in reaching

a different result involve either acquittals that occurred during or prior to, rather

than after, the return of initial jury or judicial verdicts convicting or acquitting the

defendant of the commission of a substantive criminal offense or sentencing the

defendant to death; determinations that the decision in defendant’s favor was not

entitled to double jeopardy effect at all; or holdings that a determination made on

direct appeal or in postconviction proceedings was entitled to double jeopardy effect

upon becoming final. Evans, 568 U.S. at 324, 133 S. Ct. at 1078, 185 L. Ed. 2d at 137

(holding that the trial court’s erroneous ruling that the prosecution had failed to

prove the existence of an alleged element of the crime at defendant's trial that it was

not, in fact, required to prove was not subject to appellate review); Monge v.

California, 524 U.S. 721, 734, 118 S. Ct. 2246, 2253, 141 L. Ed. 2d 615, 628 (1998)

(refusing to afford double jeopardy effect to an appellate determination that a trial

court conclusion that the defendant had committed a “qualifying felony” for purposes

of California’s “three strikes and you’re out” law lacked sufficient evidentiary support

4 The fact that a refusal to afford Judge Week’s order double jeopardy effect will
require defendant to participate in a new hearing under the Racial Justice Act does not,
unlike the situation at issue in Arizona v. Rumsey, 467 U.S. 203, 211–12, 104 S. Ct. 2305,
2310, 81 L. Ed. 2d 164, 172 (1984), in which the “acquittal” that barred retrial occurred on
direct appeal from the trial court’s initial judgment rather than in a post-conviction
proceeding, does not, at least in my opinion, suffice to require that Judge Weeks’ order be
treated differently than any other postconviction acquittal, with there being no decision of
either this Court or the Supreme Court of which I am aware having reached such a result
and with the Supreme Court’s decision to remand for further proceedings in Bobby v. Bies,
556 U.S. 825, 837, 129 S. Ct. 2145, 2154, 173 L. Ed. 2d 1173, 1183 (2009), appearing to me to
conflict with the logic upon which the Court relies.

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Ervin, J., dissenting

on the grounds that this determination did not constitute an acquittal for double

jeopardy purposes); Poland v. Arizona, 476 U.S. 147, 157–57, S. Ct. 1749, 1757, 90 L.

Ed. 2d 123, 133 (1986) (holding that a new capital sentencing hearing may be held

when, in the course of a death-sentenced defendant’s direct appeal, the reviewing

court determines that, even though the evidence did not suffice to support the

submission of the sole aggravating circumstance upon which the sentencing judge

relied in sentencing the defendant to death, the record did contain sufficient evidence

tending to show the existence of an aggravating circumstance that the sentencing

judge erroneously found to be legally, rather than factually, inapplicable); Rumsey,

467 U.S. at 212, 104 S. Ct. at 2311, 81 L. Ed. 2d at 172 (holding that a trial court’s

decision at the defendant’s initial trial and capital sentencing hearing that no

aggravating circumstance existed and that the defendant was not death-eligible

under Arizona law was entitled to double jeopardy effect despite a decision made in

connection with the State’s cross-appeal that the record evidence did, in fact, support

a finding of the existence of an aggravating circumstance); Bullington v. Missouri,

451 U.S. 430, 446–47, 101 S. Ct. 1852, 1862, 68 L. Ed. 2d 270, 283–84 (1981) (holding

that the jury’s determination at the defendant’s capital sentencing hearing that the

defendant should be sentenced to life imprisonment rather than death was entitled

to double jeopardy effect despite a decision by the trial court allowing a post-verdict

motion and awarding the defendant a new trial on the issue of guilt); Burks v. United

States, 437 U.S. 1, 17–18, 98 S. Ct. 2141, 2150–51, 57 L. Ed. 2d 1, 13 (1978) (holding

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Ervin, J., dissenting

that a final appellate decision that the record evidence did not suffice to support the

defendant’s conviction was entitled to double jeopardy effect and precluded a retrial);

Morrison v. United States, 429 U.S. 1, 3–4, 97 S. Ct. 24, 26, 50 L. Ed. 2d 1, 4 (1976)

(holding that an acquittal at a bench trial has the same effect as an acquittal by a

jury for double jeopardy purposes); Fong Foo v. United States, 369 U.S. 141,143, 82

S. Ct. 671, 672, 7 L. Ed. 2d 629, 631 (1962) (holding that a trial court’s determination

during the course of the defendant’s trial that the defendant should be acquitted on

a legally unsupportable ground was entitled to double jeopardy effect). Simply put,

the Court has not cited any decision of either the Supreme Court or this Court holding

that a postconviction acquittal of the type at issue here is subject to preclusive effect

unless and until that decision has become final at the conclusion of the process of

appellate review, and I have been unable to find any such decision in the course of

my own research. As a result, I feel compelled to conclude that the Court’s double

jeopardy analysis, which relies upon general statements of double jeopardy

jurisprudence that were made in a procedural context that is completely different

from the one that is present here, is fundamentally flawed.

In addition, the Court fails to recognize that essentially the same double

jeopardy argument that it now finds persuasive was presented to this Court during

the proceedings that led to the entry of our 2015 order, from which defendant

unsuccessfully sought relief from the Supreme Court and which has, given the

absence of such relief, become final. I am unable to read our 2015 order to vacate

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Ervin, J., dissenting

Judge Weeks’ order and to remand this case to the Superior Court, Cumberland

County, as anything other than a rejection of defendant’s double jeopardy claim in

light of the fact that no such remand would have been permissible had Judge Weeks’

order and the related judgment been entitled to double jeopardy effect. As a result,

it would appear to me that defendant’s double jeopardy claim is, in addition to lacking

support in our jurisprudence relating to that constitutional provision, barred by the

law of the case doctrine. Hayes v. City of Wilmington, 243 N.C. 525, 536, 91 S.E.2d

673, 681–82 (1956) (stating that, “when an appellate court passes on a question and

remands the cause for further proceedings, the questions there settled become the

law of the case, both in subsequent proceedings in the trial court and on subsequent

appeal, provided the same facts and the same questions which were determined in

the previous appeal are involved in the second appeal”) (citations omitted).

In apparently holding that our 2015 order is a nullity, the Court concludes that

the State was not entitled to seek appellate review of Judge Weeks’ order and the

related judgment and that, by failing to list the judgment that Judge Weeks entered

in conjunction with his order concluding that defendant was entitled to relief from

his death sentence pursuant to the Racial Justice Act as one of the determinations of

which it sought review in the certiorari petition that led to the entry of this Court’s

2015 order, the State failed to properly seek and obtain review of Judge Weeks’

sentencing decision. I am not persuaded by the Court’s reasoning, which overlooks

the relevant statutory provisions and the fundamental reason for which the State

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Ervin, J., dissenting

sought, and the Court granted further review of Judge Weeks’ order granting relief

to defendant on the basis of his Racial Justice Act claim and his decision to resentence

defendant to life imprisonment.

The North Carolina Constitution provides that this Court “shall have

jurisdiction to review upon appeal any decision of the courts below, upon any matter

of law or legal inference.” N.C. Const. art. IV, § 12(1) (emphasis added). While certain

statutes generally limit the extent to which this Court is entitled to review the

decisions of lower courts, “it is beyond question that a statute cannot restrict this

Court’s constitutional authority” to supervise the activities of North Carolina’s lower

courts. State v. Ellis, 361 N.C. 200, 205, 639 S.E.2d 425, 428 (2007). For that reason,

“[t]his Court will not hesitate to exercise its rarely used general supervisory authority

when necessary to promote the expeditious administration of justice.” State v.

Stanley, 288 N.C. 19, 26, 215 S.E.2d 589, 594 (1975). In apparent recognition of our

constitutional supervisory authority, the General Assembly has enacted N.C.G.S. §

7A-32(b), which provides that this Court “has jurisdiction . . . to issue the prerogative

writs, including . . . certiorari, . . . in aid of its own jurisdiction or in exercise of its

general power to supervise and control the proceedings of any of the other courts of

the General Court of Justice.” N.C.G.S. § 7A-32(b) (2019). This Court has utilized its

general supervisory authority to hear appeals concerning motions for appropriate

relief despite the absence of any statutory authority to do so and, in some instances,

in the face of a statutory prohibition against appellate review of specific types of lower

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Ervin, J., dissenting

court orders or decisions. See, e.g., State v. Todd, 369 N.C. 707, 709–10, 799 S.E.2d

834, 837 (2017); Ellis, 361 N.C. at 200, 639 S.E.2d at 425. As a result, this Court may

well have had the authority to review Judge Weeks’ order and the related judgment

as a constitutional matter.

I see no need for further discussion of the Court’s constitutional supervisory

authority in this case, however, given that there is explicit statutory authority for the

Court’s decision to grant a certiorari petition authorizing review of Judge Weeks’

original order. The Racial Justice Act expressly provided that “the procedures and

hearing on the motion” seeking relief from a defendant’s sentence on the basis that

racial discrimination played a significant role in the decision to seek or impose the

death penalty “shall follow and comply with” a number of statutory provisions

governing the litigation of motions for appropriate relief, including “[N.C.G.S. §] 15A-

1422.” North Carolina Racial Justice Act, S.L. 2009-464, § 1, 2009 N.C. Sess. Laws

1213, 1215 (codified at N.C.G.S. § 15-2012(c) (2009)) (repealed 2013). Subsection 15A-

1422(c) provides, in turn, that “[t]he court’s ruling on a motion for appropriate relief”

is subject to review “[i]f the time for appeal has expired and no appeal is pending, by

writ of certiorari.” N.C.G.S. § 15A-1422(c) (2019).5 Thus, the General Assembly

5 The amended Racial Justice Act provided that a defendant’s Racial Justice Act claim
“shall be raised by the defendant . . . in postconviction proceedings pursuant to Article 89 of
Chapter 15A of the General Statutes.” An Act to Amend Death Penalty Procedures, S.L.
2012-136, § 3, 2012 N.C. Sess. Laws 471, 472 (enacting N.C.G.S. § 15A-2011(f)(1) (Supp.
2012)) (repealed 2013). Section 15A-1422 falls within Article 89 of Chapter 15A.

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Ervin, J., dissenting

expressly granted this Court the authority to review trial court decisions granting or

denying relief pursuant to the Racial Justice Act through the use of its certiorari

jurisdiction, which is the exact procedural vehicle that the State utilized in seeking

and obtaining review of Judge Weeks’ order.6 As a result, I am further compelled to

conclude that the Court’s apparent determination that Judge Weeks’ order granting

relief pursuant to the Racial Justice Act was not subject to appellate review is

erroneous.

Finally, I am equally unpersuaded by the Court’s conclusion that the State’s

failure to list the judgment that Judge Weeks entered based upon his decision to

grant defendant’s request for relief from his death sentence pursuant to the Racial

Justice Act in the certiorari petition that led to the entry of our 2015 order deprived

us of any authority to vacate Judge Weeks’ order and the related judgment following

appellate review. Aside from the fact that no meaningful request for appellate review

of the underlying judgment could be taken apart from review of the order granting

defendant’s request for relief from his death sentence under the Racial Justice Act

6 The fact that the General Assembly did not grant the State an appeal as of right
from orders granting relief pursuant to the Racial Justice Act, upon which the Court places
some emphasis in its opinion, has no bearing upon the proper resolution of this case given
the General Assembly’s decision to expressly authorize appellate review of such orders
pursuant to N.C.G.S. § 15A-1422(c)(3) and former N.C.G.S. § 15A-2012(c). Similarly, the fact
that N.C.G.S. § 15A-1422(c)(3) makes no mention of proceedings conducted pursuant to the
Racial Justice Act is irrelevant to the issue of whether the State was entitled to seek the
issuance of a writ of certiorari authorizing review of Judge Weeks’ order given that the use
of the procedure authorized by N.C.G.S. § 15A-1422(c) was expressly imported into Racial
Justice Act proceedings by former N.C.G.S. § 15A-2012(c).

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Ervin, J., dissenting

and the fact that the State’s certiorari petition cannot be understood as anything

other than a challenge to the correctness of both Judge Weeks’ order and the

judgment that was entered in reliance upon that order, the Court’s decision, which

seems to me to be overly technical for that reason alone, is inconsistent with the

relevant statutory provisions governing review of trial court decisions made pursuant

to the Racial Justice Act. According to N.C.G.S. § 15A-1422(c), which specifically

provides for review of “[t]he court’s ruling on a motion for appropriate relief,” the

order or decision that is subject to further review is the “ruling on a motion for

appropriate relief” rather than any remedial judgment that the trial court might have

entered for the purpose of effectuating its decision to afford relief to a defendant. I

have a great deal of difficulty seeing how the General Assembly could have intended

for this logic to permit review of the order entered in connection with the allowance

of a motion for appropriate relief while requiring a separate request for review of the

judgment that the trial court entered based upon the underlying order. The

interpretation of N.C.G.S. § 15A-1422(c) that I believe to be appropriate is fully

consistent with our certiorari-related jurisprudence, which brings the entire record

forward for review and recognizes the fundamental principle that the trial court’s

judgment flows logically from the proceedings that led to its entry. State v. Moore,

258 N.C. 300, 302, 128 S.E.2d 563, 565 (1962); In re Burton, 257 N.C. 534, 545, 126

S.E.2d 581, 589 (1962). As a result, I believe that, in light of the language in which

the relevant statutory provisions are couched and the effect of our decision to issue a

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Ervin, J., dissenting

writ of certiorari authorizing review of Judge Weeks’ order, the fact that the State

failed to expressly seek review of the judgment that was entered on the basis of Judge

Weeks’ order in the certiorari petition that led to the entry of our 2015 order does not

have the effect of precluding further review of that judgment.7

I do not, by dissenting from the Court’s decision in this case, wish to be

understood as expressing any doubt about the fundamental importance of the goals

sought to be achieved by the Racial Justice Act or the pressing need to completely

eradicate racial and all other forms of odious discrimination from our system of

justice, to cast any doubt upon the correctness of our recent decision in Ramseur, or

to express any opinion concerning the extent to which the Court did or did not

correctly grant relief from Judge Weeks’ order in 2015, which was a decision in which

I did not participate. However, it seems clear to me that a trial court order granting

relief pursuant to the Racial Justice Act and the entry of a related judgment of life

imprisonment is not an unreviewable decision entitled to double jeopardy protection,

with there being no support in the relevant decisions of this Court or the Supreme

Court or in the statutory provisions governing our review of lower court decisions in

criminal cases. As a result, I am unable to join the Court’s decision that defendant is

7 The majority’s reference to State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542,
543 (2010), has no bearing upon a proper analysis of this case given that the manner in which
an appeal must be taken from an order denying a motion to suppress evidence differs from
the manner in which appellate review of orders granting or denying relief pursuant to the
Racial Justice Act must be sought. See N.C.G.S. § 15A-979 (b) (2019) (stating that “[a]n order
finally denying a motion to suppress evidence may be reviewed upon an appeal from a
judgment of conviction, including a judgment entered upon a plea of guilty”).

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Ervin, J., dissenting

entitled to have the sentence of life imprisonment without the possibility of parole

that was imposed upon him as the result of Judge Weeks’ order to grant defendant

relief pursuant to the Racial Justice Act reinstated and would, instead, hold, for the

reasons set forth in Ramseur, that the trial court erred by dismissing defendant’s

Racial Justice Act claim based upon the General Assembly’s decision to repeal that

legislation and that this case should be remanded to the Superior Court, Cumberland

County, for further proceedings not inconsistent with this opinion, including the

hearing on the merits contemplated in our 2015 order.

Justice DAVIS joins in this dissenting opinion.

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