DOUBLE JEOPARDY
Convictions of Both Second-Degree Murder and DWI Di
d Not Violate Double Jeopardy
State v. Armstrong, ___ N.C. App. ___, ___ S.E.2d _
__ (20 April 2010).
The defendant drove while impaired and crashed his
vehicle, resulting in the
death of his passenger. The court ruled that double
jeopardy does not prohibit the
convictions of both second-degree murder and DWI; t
he court relied on State v.
McAllister, 138 N.C. App. 252 (2000).
Double Jeopardy Did Not Bar Second Trial on Indictm
ent of Felony Possession of Stolen
Goods After Defendant Initially Had Been Tried Unde
r That Indictment But Judge Had
Erroneously Instructed Jury on Felony Possession of
Motor Vehicle Under G.S. 20-106, and
Appellate Court Had Reversed Conviction of Felony P
ossession of Motor Vehicle
State v. Rahaman, ___ N.C. App. ___, 688 S.E.2d 58
(19 January 2010).
The defendant was indicted for felony possession of
stolen goods (Toyota truck)
under G.S. 14-71.1. The trial court erroneously ins
tructed the jury on felony
possession of a stolen motor vehicle under G.S. 20-
106. The defendant appealed
his conviction of felony possession of a stolen mot
or vehicle to the North
Carolina Court of Appeals, which arrested judgment
on that conviction. The state
then prosecuted the defendant on the same indictmen
t for a violation of G.S. 14-
71.1, and the defendant was convicted of that offen
se. The court ruled that double
jeopardy did not bar the second trial because the t
rial court’s error at the first trial
did not amount to an acquittal of the crime of poss
ession of stolen goods; thus,
the defendant could be retried for that offense.
Double Jeopardy Does Not Prohibit Convictions of Bo
th Possession With Intent to Sell or
Deliver Marijuana and Felony Possession of Same Mar
ijuana
State v. Springs, ___ N.C. App. ___, 683 S.E.2d 432
(6 October 2009).
The court ruled that double jeopardy does not prohi
bit convictions of both
possession with intent to sell or deliver marijuana
and felony possession of the
same marijuana. The court relied on the ruling in S
tate v. Pipkins, 337 N.C. 431
(1994) (defendant properly convicted of both felony
possession of cocaine and
trafficking by possessing cocaine), and its explici
t overruling of State v.
Williams, 98 N.C. App. 405 (1990) (defendant may no
t be convicted of both
felonious possession of cocaine and possessing with
intent to sell or deliver the
same cocaine), and State v. Oliver, 73 N.C. App. 11
8 (1985) (same ruling).
Second Degree Murder and Accessory After the Fact t
o First Degree Murder Are Mutually
Exclusive
State v. Keller,
__ N.C. App. __, __ S.E.2d __ (Aug. 4, 2009).
A defendant may not be convicted of second-degree m
urder and accessory after
the fact to first-degree murder. The offenses are m
utually exclusive.
Apparent Inconsistency Between Jury’s Verdicts of N
ot Guilty on Some Charges and
Inability to Reach Verdicts (Hung Jury) on Other Ch
arges at Same Trial Does Not Affect
Not Guiltys’ Preclusive Effect Under Double Jeopard
y Clause
Yeager v. United States, 129 S. Ct. 2360, 174 L. Ed
. 2d 78 (18 June 2009).
A jury at a federal criminal trial acquitted the de
fendant of fraud charges but
failed to reach a verdict (hung jury) on insider-tr
ading and money-laundering
charges. The defendant moved to dismiss the insider
trading and money-
laundering charges on the ground that the jury, by
acquitting him of the fraud
charges, had necessarily decided that he did not po
ssess material, nonpublic
information, and the issue-preclusion component (co
mmonly known as collateral
estoppel) of the Double Jeopardy Clause barred a se
cond trial for the insider-
trading and money-laundering charges. (For example,
if the possession of insider
information was a critical issue of fact in all of
the charges against the defendant,
a jury verdict that necessarily decided that issue
in his favor protects him from
prosecution for any charge for which that is an ess
ential element.) The Court
ruled, relying on Ashe v. Swenson, 397 U.S. 436 (19
70), that the apparent
inconsistency between the jury’s not guilty verdict
s and its inability to reach
verdicts on other charges did not affect the not gu
iltys’ preclusive effect under
the Double Jeopardy Clause. The Court remanded the
case to allow the
government an opportunity to argue in the federal c
ourt of appeals that a factual
analysis of the evidence and verdicts does not supp
ort the defendant’s double
jeopardy argument. [Author’s note: The Court’s ruli
ng in this case does not affect
the United States Supreme Court ruling in United St
ates v. Powell, 469 U.S. 57
(1984) (defendant may not successfully challenge gu
ilty verdicts that may have
been inconsistent with not guilty verdicts rendered
at same trial).]
Double Jeopardy Clause Did Not Bar Ohio Courts From
Determining Whether Defendant
Was Mentally Retarded That Would Prevent Imposition
of Death Penalty
Bobby v. Bies, 129 S. Ct. 2145, 173 L. Ed. 2d 1173
(1 June 2009).
The federal habeas corpus petitioner was convicted
of murder in state court and
sentenced to death. A federal appellate court rever
sed the death sentence on
double jeopardy grounds concerning the defendant’s
alleged mental retardation.
The Court ruled that the Double Jeopardy Clause did
not bar Ohio courts from
determining whether the defendant was mentally reta
rded that would prevent the
imposition of the death penalty. [Author’s note: Se
e the Court’s opinion for its
discussion of the facts and law and the federal app
ellate court’s “fundamentally
misperceived” (Court’s description) application of
the Double Jeopardy Clause
that the Court reversed.]
Double Jeopardy Prohibits Convictions of Both Acces
sory After Fact of First-
Degree Murder and Accessory After Fact of First-Deg
ree Kidnapping When Jury
Could Have Found That Accessory After Fact of First
-Degree Murder Was Based
Solely on Kidnapping Under Felony Murder Rule
State v. Best, ___ N.C. App. ___, 674 S.E.2d 467 (3
February 2009).
The defendant was convicted of three counts of acce
ssory after the fact to
first-degree murder and three counts of accessory a
fter the fact to first-
degree kidnapping, based on assistance to others wh
o had killed three
people. The court ruled, relying on State v. Gardne
r, 315 N.C. 444 (1986),
that double jeopardy prohibited convictions of both
accessory after fact of
first-degree murder and accessory after fact of fir
st-degree kidnapping
when the jury could have found that accessory after
fact of first-degree
murder was based solely on kidnapping under felony
murder rule. The
jury’s verdict did not indicate whether it found th
e first-degree murder
element based on premeditation and deliberation or
felony murder based
on first-degree kidnapping, or both. The court arre
sted judgment on the
defendant’s convictions of accessory after the fact
to first-degree
kidnapping.
(1) Double Jeopardy Did Not Bar Convictions and Pun
ishments for Both Indecent
Liberties and Using Minor in Obscenity
State v. Martin, ___ N.C. App. ___, 671 S.E.2d 53 (
20 January 2009).
The defendant was convicted of two counts of indece
nt liberties with a
child and using a minor in obscenity. (1) The court
ruled that there was no
double jeopardy violation when the defendant was co
nvicted and punished
for one count of indecent liberties and one count o
f using a minor in
obscenity based on the same photograph of the child
and defendant; each
offense has at least one element that is not includ
ed in the other offense.
(3) Double Jeopardy Did Not Bar Convictions and Pun
ishments for Both Second-
Degree and Third-Degree Sexual Exploitation of Mino
r
State v. Anderson, ___ N.C. App. ___, 669 S.E.2d 79
3 (16 December
2008).
The defendant surreptitiously placed a camera in hi
s stepdaughter’s
bedroom. The camera was connected by a cord to the
defendant’s
computer located in another room. After the camera
was discovered, the
computer was taken to the sheriff’s office. Investi
gation of the computer’s
hard drive discovered child pornography. The defend
ant was convicted of
misdemeanor peeping and appealed for trial de novo.
He was also
indicted, based on the child pornography in the com
puter, for ten counts of
third-degree sexual exploitation of a minor and ten
counts of second-
degree sexual exploitation of a minor. At a confere
nce with the prosecutor
and defense counsel before trial, the judge comment
ed that if the two
parties were engaged in plea discussions, he would
be amenable to a
probationary sentence. Defense counsel objected to
the judge’s comments,
stating that it could be inferred that the judge wo
uld be less likely to give
the defendant probation if he did not plead guilty
The judge stated that he
had not meant to make any such implication, but rat
her to encourage the
parties to enter plea negotiations. The defendant a
t a single trial was
convicted of all 21 charges and sentenced to impris
onment. The court
ruled: (3) relying on State v. Davis, 302 N.C. 370
(1981), double jeopardy
did not bar convictions and punishments for both se
cond-degree and third-
er n.