              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1095

                                 Filed: 15 May 2018

Wake County, No. 15 CRS 213392

STATE OF NORTH CAROLINA

             v.

JAMES HAROLD COURTNEY, III


      Appeal by defendant from judgment entered 9 November 2016 by Judge

Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals

18 April 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Jess D.
      Mekeel, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
      Zimmer, for defendant.


      ELMORE, Judge.


      In 2009, the State charged James Harold Courtney, III (defendant) with first-

degree murder for the shooting death of James Deberry. At trial the jury hung, and

the trial court declared a mistrial on the ground of jury deadlock. Four months later,

the prosecutor filed a N.C. Gen. Stat. § 15A-931 voluntary dismissal of the murder

charge with the trial court, acknowledging on the form that its dismissal was being

entered after defendant had already faced jeopardy for the charge and explaining the

following reason for its dismissal: “Hung jury, State has elected not to re-try case.”
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                                  Opinion of the Court



      In 2015, however, after acquiring new evidence it believed strengthened its

case, the State recharged defendant with first-degree murder for Deberry’s homicide.

Before his second trial, defendant moved to dismiss the new murder indictment,

claiming a double jeopardy bar, which the trial court summarily denied. The second

jury found defendant guilty of second-degree murder, and the trial court entered a

judgment sentencing him to approximately eighteen to twenty-two years in prison.

      On appeal, defendant concedes that the State was permitted to retry him on

the mistried murder charge without violating his double jeopardy rights because the

hung-jury mistrial did not terminate the initial jeopardy that attached when the first

jury was empaneled and sworn. He argues, however, that the prosecutor’s post-

mistrial voluntary dismissal of the mistried charge terminated that initial continuing

jeopardy and, therefore, the State was barred from reprosecuting him four years later

for the same offense. After careful consideration, we agree.

      The Double Jeopardy Clause bars successive prosecutions for the same offense

after acquittal. This protection “serves a constitutional policy of finality for the

defendant’s benefit[,]” Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L.

Ed. 2d 187 (1977) (citation and quotation marks omitted), and “guarantees that the

State shall not be permitted to make repeated attempts to convict the accused,

thereby subjecting him to embarrassment, expense and ordeal and compelling him to

live in a continuing state of anxiety and insecurity, as well as enhancing the



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possibility that even though innocent he may be found guilty.” Blueford v. Arkansas,

566 U.S. 599, 605, 132 S. Ct. 2044, 2050, 182 L. Ed. 2d 937 (2012) (citation and

quotation marks omitted).

      In North Carolina, a prosecutor may take “a simple and final dismissal which

terminates the criminal proceedings under that indictment” at any time. State v.

Lamb, 321 N.C. 633, 641, 365 S.E.2d 600, 604 (1988) (citing N.C. Gen. Stat. § 15A-

931). While “[s]ection 15A-931 does not bar the bringing of the same charges upon a

new indictment,” id. (citing N.C. Gen. Stat. § 15A-931 official cmt.), in this case

defendant’s constitutional right to be free from double jeopardy did, see N.C. Gen.

Stat. § 15A-931 official cmt. (opining that reprosecution would be barred “if jeopardy

had attached when the . . . charge[ ] w[as] dismissed”).

      We hold that when a prosecutor takes a section 15A-931 voluntary dismissal

of a criminal charge after jeopardy had attached to it, such a post-jeopardy dismissal

is accorded the same constitutional finality and conclusiveness as an acquittal for

double jeopardy purposes. Further, while the State has the undisputed right to retry

a hung charge, we hold that a prosecutor’s election instead to dismiss that charge is

binding on the State and tantamount to an acquittal.

      We thus hold that here, by virtue of the prosecutor’s post-jeopardy dismissal of

the murder charge, regardless of whether it was entered after a valid hung-jury

mistrial but before a permissible second trial, the State was barred under double



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jeopardy principles from retrying defendant four years later for the same charge.

Accordingly, we vacate the judgment entered against defendant in 15 CRS 213392.

                                   I. Background

      On Halloween 2009, James Deberry was fatally shot outside his apartment in

Raleigh. The State’s evidence tended to show that when responding officers arrived,

Deberry was still conscious and told a detective that “a friend upstairs” had shot him.

Monica Bustamante, Deberry’s fiancé, was with him and explained to the detective

that “what he meant was Jar, a friend that lived upstairs, or one of Jar’s friends.”

Police determined that “Jar” was David Moses. The State’s evidence also indicated

that Moses and defendant had grown up together in New York; that defendant met

Deberry at Moses’ apartment; that Deberry sold a few pounds of low-grade marijuana

to defendant, and likely others, for lower-level distribution; and that Deberry’s

homicide may have been drug-related.

      The State charged defendant and Moses with first-degree murder. But in

return for agreeing to testify at defendant’s trial, the State dropped the charge

against Moses and granted him immunity. After the jury hung at defendant’s first

trial, the trial court declared a mistrial, and defendant was released on bail.

      On 16 December 2010 and 10 February 2011, the trial court issued “homicide

status hearing” (original in all caps) orders containing handwritten notes from the

judge indicating that the matter was set to be reviewed at a later status hearing to



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determine whether the State was going to retry the case. On 14 April 2011, the

prosecutor filed a “Dismissal/Notice of Reinstatement” with the trial court, indicating

that it was voluntarily dismissing the murder charge. The form, Form AOC-CR-307,

is separated into three sections: (1) “Dismissal,” (2) “Dismissal with leave,” and (3)

“Reinstatement.”    The prosecutor filled in the “Dismissal” section, checking the

following boxes: (1) “The undersigned prosecutor enters a dismissal to the above

charge(s) and assigns the following reasons:” and (2) “4. Other: (specify).” Next to box

4, the prosecutor wrote: “hung jury, State has elected not to re-try case.” Under box

4 the form contains a typewritten sentence concerning whether a jury had been

impaneled and whether evidence had been presented, with instructions to edit the

sentence to reflect whether the voluntary dismissal was being entered before or after

jeopardy had attached to the charge. With the handwritten edits, that sentence reads

as follows (omissions are stricken; additions are underlined): “A jury has not been

impaneled nor and has [sic] evidence been introduced.”

      In 2013 and 2014, the State acquired new evidence putting Ivan McFarland, a

friend of both defendant and Moses from New York, at the scene of Deberry’s

shooting, and obtained cellphone records indicating that five calls were made between

defendant’s and McFarland’s cellphones during the day of the shooting. In 2015, the




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State charged McFarland and recharged defendant with Deberry’s murder.1 On 6

July 2015, a grand jury reindicted defendant for first-degree murder.

       Before his second trial, defendant moved to dismiss the 2015 murder

indictment on double jeopardy grounds. Defendant conceded that the State was

permitted to retry him for Deberry’s homicide following the December 2010 hung-jury

mistrial. But he argued that since the prosecutor four months later in April 2011

instead elected under N.C. Gen. Stat. § 15A-931 to voluntarily dismiss the 2009

murder indictment, after he had already faced jeopardy for that charge at the first

trial, the Double Jeopardy Clause barred the State from retrying him for the same

offense. The trial court summarily denied the motion.

       Additionally, the following events occurred which we briefly address only to

provide context for defendant’s other non-dispositive alleged errors. Before his second

trial, defendant also moved to dismiss the 2015 murder indictment on speedy trial

grounds, which the trial court denied; and he objected to not having been formally

arraigned at least a week before he was tried and requested a continuance, which the

trial court denied, immediately arraigned him, and began trial the same day. At trial,

the trial court admitted cellphone record evidence under Rule 802(6)’s business-




1 A pretrial hearing transcript reveals that another judge had previously denied the State’s motion to
join McFarland’s and defendant’s murder trials, and that the State intended to try McFarland after it
tried defendant. The record is silent as to the outcome of the murder charge against McFarland.

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records exception to the rule against hearsay, over defendant’s objection that the

records were not properly authenticated under Rule 902.

      After the State rested its case, defendant presented no evidence. The jury

convicted defendant of second-degree murder, and the trial court entered a judgment

sentencing him to 220 to 273 months in prison. Defendant appeals.

                                 II. Alleged Errors

      On appeal, defendant asserts the trial court erred by denying his motions to

dismiss the second murder charge on both double jeopardy and speedy trial grounds.

First, he argues his double jeopardy dismissal motion was improperly denied because

the prosecutor’s post-mistrial section 15A-931 voluntary dismissal of the murder

charge terminated its jeopardy that attached at the first trial and continued after the

hung-jury mistrial and, thus, the State was barred under the Double Jeopardy Clause

from retrying him for Deberry’s murder. Second, and alternatively, defendant argues

that if the voluntary dismissal did not terminate the continuing original jeopardy

that attached at the first trial, his speedy trial rights were violated by the State’s

seven-year delay from his first arrest to the second trial; or, defendant argues, the

case should be remanded for a new speedy trial hearing, because the trial court failed

to account for the four years between the dismissal entry and his reindictment when

the court balanced Barker’s length-of-delay factor in its speedy trial analysis.




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      Third, defendant argues the trial court erred by admitting the phone records

into evidence under Rules 803(6)’s public-records hearsay exception over his Rule

902(a)(2) authentication objection. And fourth, he asserts the trial court violated his

statutory right under N.C. Gen. Stat. § 15A-943(b) not to be tried within seven days

of his arraignment because he was formally arraigned and tried the same day.

      Because we conclude that defendant’s first argument is dispositive and

warrants vacating the judgment entered against him, we analyze only the double

jeopardy issue presented and decline to address his remaining arguments.

                               III. Double Jeopardy

      Defendant asserts his double jeopardy rights were violated when he was

reprosecuted for first-degree murder. He argues the prosecutor’s voluntary dismissal

of the 2009 murder charge terminated the jeopardy that attached at the first trial

and continued following the hung-jury mistrial. Thus, defendant contends, the trial

court improperly denied his pretrial motion to dismiss the 2015 murder charge before

his second trial, and he unconstitutionally faced jeopardy twice for the same offense.

A. Issue Preservation

      As a threshold matter, the State asserts that defendant failed to preserve his

double jeopardy claim because he failed to object to the hung-jury mistrial. The

State’s preservation argument is meritless.




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      The State cites to State v. Lachat, 317 N.C. 73, 343 S.E.2d 872 (1986), for

support. In Lachat, our Supreme Court interpreted its decision in State v. Odom, 316

N.C. 306, 341 S.E.2d 332 (1986), as holding that, in “a noncapital case, . . . a defendant

is not entitled by reason of former jeopardy to dismissal of the charge against him,

where he failed to object to the trial court’s termination of his first trial by a

declaration of mistrial.” Id. at 85, 343 S.E.2d at 878 (citing Odom, 316 N.C. at 309,

341 S.E.2d at 334)). The Lachat Court, however, after declining to extend Odom’s

objection requirement to capital cases, clarified that its decision in Odom was limited

to situations where a defendant is given notice and opportunity to object before a

mistrial is declared but fails to do so. Thus, the Lachat Court explained, it was

declining to apply Odom’s objection requirement in part because “both declarations

of mistrial by the trial court were entered on the trial court’s own motion and without

prior notice or warning to the defendant.” Id. at 86, 343 S.E.2d at 879. The Lachat

Court determined that “requir[ing] [the defendant] to go through the formality of

objecting after a mistrial had already been declared or lose her protection against

double jeopardy would be a triumph of form over substance[,]” id. at 86, 343 S.E.2d

at 879, “particularly [where] the defendant properly raised the issue of former

jeopardy before the commencement of the second trial by filing her written motion to

dismiss the charge against her,” id. at 87, 343 S.E.2d at 879. Indeed, the Lachat

Court reasoned, “it was the trial court’s denial of that motion which preserved this



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issue for appeal.” Id. at 87, 343 S.E.2d at 879. This authority, however, is simply

inapplicable here.

      The former jeopardy defenses raised by both defendants in Odom and Lachat

before their second trials were grounded in their assertion that the prior mistrial was

improperly declared, implicating their double jeopardy right to have their guilt or

innocence determined by the first jury. Here, defendant neither disputed the validity

of the hung-jury mistrial nor used it to support his former jeopardy defense; rather,

his double jeopardy claim was grounded in his assertion that the State’s voluntary

dismissal of the murder charge terminated the jeopardy that attached at the first

trial. Additionally, the constitutional protection at issue here is not defendant’s right

to have his guilt or innocence decided by a particular tribunal, but his right to avoid

successive prosecutions for the same offense.        Further, defendant here, like the

defendant in Lachat, properly raised his former jeopardy defense before the second

trial by filing a written motion to dismiss the murder charge on double jeopardy

grounds, and it was the trial court’s denial of that motion that preserved this issue

for appeal.   Accordingly, despite defendant’s failure to object to the hung-jury

mistrial, his former jeopardy argument is preserved.

B. Discussion

      As we review alleged double jeopardy violations de novo, see, e.g., State v.

Schalow, ___ N.C. App. ___, ___, 795 S.E.2d 567, 571 (2016) (citation omitted), disc.



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rev. allowed, 369 N.C. 521, 796 S.E.2d 791 (2017), and disc. rev. improvidently

allowed, ___ N.C. ___, 809 S.E.2d 579 (2018), it follows that we review de novo a trial

court’s denial of a motion to dismiss an indictment on double jeopardy grounds.

      The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o

person shall . . . be subject for the same offence to be twice put in jeopardy of life or

limb[.]” U.S. Const. amend. V. The Clause “ ‘guarantees that the State shall not be

permitted to make repeated attempts to convict the accused, thereby subjecting him

to embarrassment, expense and ordeal and compelling him to live in a continuing

state of anxiety and insecurity, as well as enhancing the possibility that even though

innocent he may be found guilty.’ ” Blueford v. Arkansas, 566 U.S. 599, 605, 132 S.

Ct. 2044, 2050, 182 L. Ed. 2d 937 (2012) (quoting United States v. Martin Linen

Supply Co., 430 U.S. 564, 569, 97 S. Ct. 1349, 1353, 51 L. Ed. 2d 642 (1977)).

      Under the Double Jeopardy Clause, “once a defendant is placed in jeopardy for

an offense, and jeopardy terminates with respect to that offense, the defendant may

[not] be tried . . . a second time for the same offense.” Sattazahn v. Pennsylvania, 537

U.S. 101, 106, 123 S. Ct. 732, 736–37, 154 L. Ed. 2d 588 (2003) (citing North Carolina

v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)). “Where

successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of

finality for the defendant’s benefit.’ ” Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct.

2221, 2225, 53 L. Ed. 2d 187 (1977) (quoting United States v. Jorn, 400 U.S. 470, 479,



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91 S. Ct. 547, 554, 27 L. Ed. 2d 543 (1971) (plurality opinion)). “The public interest

in the finality of criminal judgments is so strong that an acquitted defendant may not

be retried even though ‘the acquittal was based upon an egregiously erroneous

foundation.’ ” Arizona v. Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 829, 54 L. Ed.

2d 717 (1978) (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671,

672, 7 L. Ed. 2d 629 (1962)). The federal protection against successive prosecutions

for the same offense is also guaranteed by the Law of the Land Clause of the North

Carolina Constitution. See State v. Brunson, 327 N.C. 244, 247, 393 S.E.2d 860, 863

(1990) (citing N.C. Const. art. I, § 19; other citations omitted); see also State v. Shuler,

293 N.C. 34, 42, 235 S.E.2d 226, 231 (1977) (“It is a fundamental principle of the

common law, guaranteed by our Federal and State Constitutions, that no person may

be twice put in jeopardy of life or limb for the same offense.” (citations omitted)).

       Defendant concedes that the hung-jury mistrial was a “nonevent” that did not

terminate the initial jeopardy attached to the murder charge when the first jury was

empaneled and sworn, and thus the State was permitted to retry him on that mistried

charge without unlawfully twice subjecting him to jeopardy. He argues the State’s

post-mistrial section 15A-931 voluntary dismissal of that mistried charge was a

jeopardy-terminating event functionally equivalent to an acquittal of that charge,

thereby barring the second trial.




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       In its brief, the State does not address the jeopardy-terminating effect on the

murder charge of the prosecutor’s voluntary dismissal; rather, it argues that where,

as here, a proper hung-jury mistrial was declared, “ ‘in legal contemplation there has

been no trial.’ ” Lachat, 317 N.C. at 82, 343 S.E.2d at 877 (quoting State v. Tyson,

138 N.C. 627, 629, 50 S.E. 456 (1905)). According to the State, because the “hung

jury mistrial rendered the original trial ‘a nullity’ such that there was ‘no trial’ at all,”

the “clock was effectively rewound to before the impaneling of a jury and

corresponding attachment of jeopardy.” Thus, the State continues, “jeopardy cannot

be terminated when it never attached in the first place.”

       “There are few if any rules of criminal procedure clearer than the rule that

‘jeopardy attaches when the jury is empaneled and sworn.’ ” Martinez v. Illinois, 134

S. Ct. 2070, 2074, 188 L. Ed. 2d 1112 (2014) (citations omitted); see also Crist v. Bretz,

437 U.S. 28, 35 n.10, 98 S. Ct. 2156, 2160 n.10, 57 L. Ed. 2d 24 (1978) (“[J]eopardy

does attach even in a trial that does not culminate in a jury verdict[.] . . .” (citation

omitted)). Here, jeopardy attached when the first jury was empaneled and sworn,

and despite the State’s theoretical argument, there can be no doubt that defendant

faced the direct peril of being convicted and punished for first-degree murder at that

trial. Jeopardy does not “unattach” when the jury hangs. See Yeager v. United States,

557 U.S. 110, 118, 129 S. Ct. 2360, 2366, 174 L. Ed. 2d 78 (2009) (“[A] jury’s inability

to reach a decision is the kind of ‘manifest necessity’ that permits the declaration of a



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mistrial and the continuation of the initial jeopardy that commenced when the jury

was first impaneled.” (emphasis added) (citations omitted)).

       “ ‘[T]he conclusion that jeopardy has attached,’ however, ‘begins, rather than

ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.’ ” Martinez,

134 S. Ct. at 2075 (quoting Serfass v. United States, 420 U.S. 377, 390, 95 S. Ct. 1055,

1064, 43 L. Ed. 2d 265 (1975)). “The remaining question is whether the jeopardy

ended in such a manner that the defendant may not be retried.” Id. (citation omitted).

       The Double Jeopardy Clause does not bar retrial of a hung charge because a

hung-jury mistrial is “not an event that terminates the original jeopardy . . . .”

Richardson v. United States, 468 U.S. 317, 326, 104 S. Ct. 3081, 3086, 82 L. Ed. 2d

242 (1984). But the Clause bars retrial after a jeopardy-terminating event, such as

(1) a jury acquittal, see, e.g., Evans v. Michigan, 568 U.S. 313, 328, 133 S. Ct. 1069,

1080, 185 L. Ed. 2d 124 (2013) (“There is no question that a jury verdict of acquittal

precludes retrial . . . .” (citation omitted)); (2) a judicial acquittal, see id. at 319, 133

S. Ct. at 1075 (explaining that a judicial “ ‘acquittal’ includes ‘a ruling by the court

that the evidence is insufficient to convict,’ a ‘factual finding that necessarily

establishes the criminal defendant’s lack of criminal culpability,’ and any other

‘ruling which relate[s] to the ultimate question of guilt or innocence’ ” (citation and

brackets omitted)); or (3) certain non-defense-requested terminations of criminal

proceedings, such as non-procedural dismissals or improperly declared mistrials, that



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for double jeopardy purposes are functionally equivalent to acquittals. See, e.g., Lee

v. United States, 432 U.S. 23, 30, 97 S. Ct. 2141, 2145, 53 L. Ed. 2d 80 (1977) (“A

mistrial ruling invariably rests on grounds consistent with reprosecution, while a

dismissal may or may not do so.” (internal citation omitted)); see also United States

v. Scott, 437 U.S. 82, 99–100, 98 S. Ct. 2187, 2198, 57 L. Ed. 2d 65 (1978) (holding

that there is no jeopardy bar to a second trial where the trial court grants a defendant-

requested motion to dismiss a charge on a basis unrelated to factual guilt or innocence

on the ground that the Double Jeopardy Clause “does not relieve a defendant from

the consequences of his voluntary choice”).

      In determining whether a judicial ruling, whether labeled a dismissal or

mistrial, amounts to an acquittal barring retrial, “[t]he critical question is whether

the order contemplates an end to all prosecution of the defendant for the offense

charged.” Lee, 432 U.S. at 30, 97 S. Ct. at 2145; see also Evans, 568 U.S. at 319, 133

S. Ct. at 1075 (explaining that “substantive rulings” of true judicial acquittals “stand

apart from procedural rulings that may also terminate a case midtrial,” such as

“rulings on questions that ‘are unrelated to factual guilt or innocence,’ ” including, for

instance, “some problem like an error with the indictment” (citation omitted)). At

issue here is whether the non-defense-requested section 15A-931 voluntary dismissal

of the murder charge was a jeopardy-terminating event tantamount to an acquittal.

We conclude that it was.



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1. Post-jeopardy Section 15A-931 Voluntary Dismissal Amounts to an Acquittal

      Under N.C. Gen. Stat. § 15A-931, entitled “Voluntary dismissal of criminal

charges by the State”:

             (a) . . . [T]he prosecutor may dismiss any charges stated in
             a criminal pleading including those deferred for
             prosecution by entering an oral dismissal in open court
             before or during the trial, or by filing a written dismissal
             with the clerk at any time. The clerk must record the
             dismissal entered by the prosecutor and note in the case file
             whether a jury has been impaneled or evidence has been
             introduced.

Id. § 15A-931(a) (2017) (emphasis added). In the context of addressing a speedy trial

claim, our Supreme Court has interpreted a section 15A-931 dismissal as “a simple

and final dismissal which terminates the criminal proceedings under that

indictment[,]” State v. Lamb, 321 N.C. 633, 641, 365 S.E.2d 600, 604 (1988)

(interpreting N.C. Gen. Stat. § 15A-931), and explained that “[s]ection 15A-931 does

not bar the bringing of the same charges upon a new indictment.” Id. (citing N.C.

Gen. Stat. § 15A-931 official cmt.).    But the plain language of section 15A-931

explicitly requires that voluntary dismissals acknowledge whether a defendant has

faced jeopardy for the charge, indicating that the legislature contemplated jeopardy

attachment to a dismissed charge to be significant, and that the double jeopardy

consequences of pre- and post-jeopardy dismissals would differ. See State v. Williams,

286 N.C. 422, 431, 212 S.E.2d 113, 119 (1975) (“[A] statute must be construed, if




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possible, so as to give effect to every part of it, it being presumed that the Legislature

did not intend any of its provisions to be surplusage.” (citations omitted)).

      Thus, in the jeopardy context, we have held that a defendant is not twice

unlawfully subjected to jeopardy if the State recharges him or her with the same

charge a prosecutor had previously dismissed under section 15A-931 before a jury

was empaneled and sworn, because a defendant must face jeopardy before he can

suffer double jeopardy. See, e.g., State v. Jacobs, 128 N.C. App. 559, 569, 495 S.E.2d

757, 764 (1998) (rejecting a double jeopardy claim because “[t]he former prosecution

was voluntarily dismissed by the State before a jury had been empaneled and before

jeopardy had attached” (emphasis added) (citation omitted)); State v. Strickland, 98

N.C. App. 693, 694–95, 391 S.E.2d 829, 830–31 (1990) (same); State v. Hice, 34 N.C.

App. 468, 471–72, 238 S.E.2d 619, 621–22 (1977) (same); see also State v. Muncy, 79

N.C. App. 356, 360, 339 S.E.2d 466, 469 (1986) (“A voluntary dismissal taken by the

State, pursuant to G.S. 15A-931, does not preclude the State from instituting a

subsequent prosecution for the same offense if jeopardy has not attached.” (emphasis

added) (citation omitted)).

      But where, as here, the State voluntarily dismisses a criminal charge after a

jury had been empaneled and sworn, we interpret section 15A-931 as according that

dismissal the same constitutional finality and conclusiveness as an acquittal for

double jeopardy purposes. We hold that if a prosecutor enters a post-jeopardy section



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15A-931 dismissal of a charge, a defendant cannot again face jeopardy for that same

charge. Accordingly, we conclude that defendant here was unlawfully placed twice

in jeopardy when the prosecutor voluntarily dismissed the murder charge after

jeopardy had attached to it, and the State years later retried him for that same

offense. Cf. Midgett v. McClelland, 547 F.2d 1194, 1196 (4th Cir. 1977) (“Putting [the

defendant] to trial on the assault charge after he had been put to trial on that charge

once, the prosecution dropping the charge only after the testimony was in, was clearly

a violation of [his] right not to be put in jeopardy twice.”).

       Our conclusion—that a prosecutor’s post-jeopardy dismissal of a criminal

charge is functionally equivalent to an acquittal barring the State under double

jeopardy principles from later reprosecuting that same charge—is buttressed by the

official commentary to section 15A-931. “Although the official commentary was not

drafted by the General Assembly,” and it is thus not binding but merely persuasive,

“its inclusion in The Criminal Procedure Act is some indication that the legislature

expected and intended for the courts to turn to it for guidance when construing the

Act.” State v. Williams, 315 N.C. 310, 327, 338 S.E.2d 75, 85 (1986) (finding “the logic

of the official commentary [to N.C. Gen. Stat. § 15A-1235] to be persuasive” and

adopting the opinion of the Criminal Code Commission in reaching its holding).

Section 15A-931’s official commentary provides:

              [T]he Commission here provide for a simple and final
              dismissal by the solicitor. No approval by the court is


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             required, on the basis that it is the responsibility of the
             solicitor, as an elected official, to determine how to proceed
             with regard to pending charges. This section does not itself
             bar the bringing of new charges. That would be prevented
             if there were a statute of limitations which had run, or if
             jeopardy had attached when the first charges were
             dismissed.

N.C. Gen. Stat. § 15A-931 official cmt. (emphasis added).          The Criminal Code

Commission clearly contemplated that the State would be barred from reprosecuting

a section 15A-931 voluntarily dismissed charge “if jeopardy had attached when

the . . . charge[ ] w[as] dismissed,” and we find that logic persuasive.

      Based on our understanding that the Double Jeopardy Clause’s protection

against reprosecution of an acquitted charge “serves a constitutional policy of finality

for the defendant’s benefit[,]” Brown, 432 U.S. at 165, 97 S. Ct. at 2225 (citation and

quotation marks omitted), and “guarantees that the State shall not be permitted to

make repeated attempts to convict the accused, thereby subjecting him to

embarrassment, expense and ordeal and compelling him to live in a continuing state

of anxiety and insecurity, as well as enhancing the possibility that even though

innocent he may be found guilty[,]” Blueford, 566 U.S. at 605, 132 S. Ct. at 2050

(citation and quotation marks omitted), and based on our interpretation of the

contemplated finality of a post-jeopardy section 15A-931 dismissal, we explicitly hold

what we have concluded in Muncy, Strickland, Hice, and Jacobs: if a prosecutor

voluntarily dismisses a criminal charge after jeopardy has attached, it is functionally



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                                   Opinion of the Court



equivalent to an acquittal for double jeopardy purposes, and a defendant cannot be

reprosecuted for that same offense.

2. Section 15A-931 Dismissal of a Hung Charge

      In this case, however, it is the timing of the prosecutor’s voluntary dismissal—

after a hung-jury mistrial that afforded the State the right to a second trial without

violating defendant’s double jeopardy rights—which both parties concede presents an

issue of first impression in our state. To this end, aside from relying on the basic

double jeopardy principles above to compel our further holding that the timing of a

post-jeopardy voluntary dismissal should not undermine its constitutional finality,

we find further guidance from our Supreme Court’s explanation and application of

the “State’s election” rule. The rule instructs that a prosecutor’s pre-jeopardy silence

of an intent to prosecute a potential charge in an indictment constitutes a “binding

election . . . tantamount to an acquittal” of that potential charge, barring the State

from later attempting to prosecute that potential charge for the first time after

jeopardy had already attached to the indictment. State v. Jones, 317 N.C. 487, 494,

346 S.E.2d 657, 661 (1986).

      In Jones, the indictment charging the defendant with rape arguably supported

counts of both first- and second-degree rape, but the State only announced its intent

to pursue a conviction for second-degree rape before the jury was empaneled and

sworn.   Id.   After jeopardy had attached to the indictment, however, the State



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                                  Opinion of the Court



successfully prosecuted for first-degree rape. Id. at 491–92, 346 S.E.2d at 659–60.

      On appeal, our Supreme Court vacated the judgment entered on the first-

degree rape conviction and remanded for entry of a judgment on second-degree rape.

Id. at 501, 346 S.E.2d at 665. The Jones Court reasoned that

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

Id. at 494, 346 S.E.2d at 661; see also State v. Hickey, 317 N.C. 457, 466, 346 S.E.2d

646, 652–53 (1986) (“[A]n announced election by the district attorney [to seek

conviction for only some charges in an indictment] becomes binding on the State and

tantamount to acquittal of charges contained in the indictment but not prosecuted at

trial only when jeopardy has attached as the result of a jury being impaneled and

sworn to try the defendant.” (first emphasis added) (citations omitted)).

      While Jones and Hickey applied the “State’s election” rule in the context of its

election not to seek conviction for some charges supported by an indictment until after

jeopardy attached, we find the principle announced—that the event of jeopardy

attachment renders such a decision binding and tantamount to an acquittal—

applicable to the State’s action here. In this case, jeopardy attached to the murder

charge when the first jury was empaneled and sworn. The State had the right to


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                                   Opinion of the Court



retry defendant for that charge following the hung-jury mistrial. But after what the

record indicates was at least one homicide status hearing with the trial court to

determine whether the State was going to exercise its right to retry the hung charge,

the prosecutor instead elected to file a section 15A-931 voluntary dismissal of that

charge, explicitly acknowledging in its dismissal entry that a jury had been

empaneled and evidence had been introduced, and reasoning in part that “State has

elected not to re-try case.” The record in this case leaves little doubt that both the

trial court and the prosecutor contemplated his election to dismiss the hung charge,

rather than announce the State’s intent to retry it, amounted to a decision

conclusively ending the prosecution, as would any reasonable defendant.

      A logical extension of the State’s election rule applied in Jones and Hickey

buttresses our conclusion here: Because the prosecutor, after acknowledging that

jeopardy had attached to the murder charge, elected to dismiss the hung charge in

part because the “State has elected not to re-try case,” rather than announce the

State’s intent to exercise its right to retry it, that decision was “binding on the State

and tantamount to acquittal” of the murder charge. Hickey, 317 N.C. at 446, 346

S.E.2d at 652. Cf. State v. Phillips, 127 N.C. App. 391, 392–94, 489 S.E.2d 890, 891–

92 (1997) (arresting judgment on a speeding conviction at superior court “because the

State took a voluntary dismissal at the district court on the speeding charge” and,

“[t]hus, the superior court did not have jurisdiction over the speeding offense”



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                                   Opinion of the Court



(citation omitted)); State v. Reeves, 218 N.C. App. 570, 574, 721 S.E.2d 317, 321 (2012)

(vacating judgment on a convicted charge at superior court where the State

previously voluntarily dismissed that charge in district court).

      We have already rejected the State’s main argument in its appellate brief: In

essence, that the hung-jury mistrial “unattached” the jeopardy from the first trial.

But at oral argument the State asserted that since its dismissal was entered after the

hung-jury mistrial but before the second trial, the case was back in “pretrial” status,

and thus its dismissal was equivalent to a pre-jeopardy dismissal. We disagree.

      The State cited to United States v. Sanford, 429 U.S. 14, 97 S. Ct. 20, 50 L. Ed.

2d 17 (1976) (per curiam), for support. In Sanford, the defendant’s first trial ended

in a hung-jury mistrial and, four months later, the trial court granted the defendant’s

motion to dismiss the indictment before the second trial began. Id. at 14, 97 S. Ct. at

20. The Sanford Court concluded that, based on the timing of the dismissal—“several

months after the first trial had ended in a mistrial, but before retrial . . . had

begun[,]”—the case was “governed by Serfass v. United States, [420 U.S. 377, 95 S.

Ct. 1055, 43 L. Ed. 2d 265 (1975)], in which we held that a pretrial order of the District

Court dismissing an indictment . . . was appealable[.] . . .” Id. at 16, 97 S. Ct. at 21.

The Court reasoned: “The dismissal in this case, like that in Serfass, was prior to a

trial that the Government had a right to prosecute and that the defendant was

required to defend.” Id. at 16, 97 S. Ct. at 21–22. Thus, the Sanford Court held, the



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                                 STATE V. COURTNEY

                                  Opinion of the Court



Double Jeopardy Clause did not bar the Government’s appeal from that dismissal.

      We recognize that the sequence of events are similar—a charge was dismissed

following a hung-jury mistrial but before retrial began—but the similarity ends there.

The Sanford dismissal was requested by the defendant, and the hung charge was

dismissed at a time when the Government intended to retry it. Here, contrarily, the

State entered a non-defense-requested dismissal, and the charge was dismissed at a

time when the dismissal entry itself announced the State did not intend to retry the

case, effectively terminating any right the State had to reprosecute the hung charge.

Accordingly, the Sanford Court’s conclusion that the parties there were back in

“pretrial” status for double jeopardy purposes is simply inapplicable here.

                                  III. Conclusion

      Defendant faced the direct peril of being convicted and punished for murder at

his first trial. “He was forced to run the gauntlet once on that charge and the jury

refused to convict him.” Green v. United States, 355 U.S. 184, 190, 78 S. Ct. 221, 225,

2 L. Ed. 2d 199 (1957). The initial jeopardy that attached to the murder charge during

the first trial remained intact following the hung-jury mistrial, but it terminated

when the prosecutor voluntarily dismissed that charge four months later.

      We hold that a post-jeopardy section 15A-931 voluntary dismissal is to be

accorded the same constitutional finality and conclusiveness as an acquittal of that

charge. Further, while the State had the right to retry the hung charge without



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                                   Opinion of the Court



violating defendant’s double jeopardy rights, in applying the State’s election rule to

the prosecutorial action in this case, we hold that the prosecutor’s election instead to

voluntarily dismiss the charge, rather than announce the State’s intent to retry it,

was binding on the State and tantamount to an acquittal. After defendant faced

jeopardy for the murder charge at his first trial, and the prosecutor later dismissed

that hung charge, the Double Jeopardy Clause’s protection against successive

prosecutions for the same offense barred the State from reprosecuting defendant for

Deberry’s murder four years later. The trial court thus erred by denying defendant’s

motion to dismiss the 2015 murder indictment on double jeopardy grounds.

Accordingly, we vacate the judgment entered against defendant in 15 CRS 213392.

In light of our disposition, we decline to address defendant’s remaining arguments.

      VACATED.

      Judges TYSON and ZACHARY concur.




                                          - 25 -
