- Double jeopardy essentially means that a defendant cannot be tried or punished for the same offense more than once.
- The key test for deciding if two charges are for the “same offense” is whether each charge requires an element of proof that is not contained in the other.
- Conviction of a lesser offense usually bars prosecution of a greater offense for the same conduct, except in limited circumstances.
Constitutional Basis for Double Jeopardy Protections
The Double Jeopardy Clause of the Fifth Amendment protects against: (1) a second prosecution for the “same offense” after acquittal; (2) a second prosecution for the “same offense” after conviction (by trial or plea); and (3) multiple punishments for the “same offense.” North Carolina v. Pearce, 395 U.S. 711 (1969). Article I, Section 19 of the North Carolina Constitution has also been interpreted to protect against double jeopardy. State v. Rambert, 341 N.C. 173 (1995).
An acquittal under the Double Jeopardy Clause includes a dismissal of a charge for insufficient evidence or an appellate court’s reversal of a conviction for insufficient evidence. Greene v. Massey, 437 U.S. 19 (1978); Burks v. United States, 437 U.S. 1 (1978); Hudson v. Louisiana, 450 U.S. 40 (1981). However, in a trial de novo system, a trial after an appeal from the lower court without a determination of the sufficiency of evidence to convict the defendant in the lower court does not violate the Double Jeopardy Clause. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984). Also, a determination that a guilty verdict was against the weight of the evidence does not bar another trial. Tibbs v. Florida, 457 U.S. 31 (1982).
Statutory Basis for Double Jeopardy Protections
The double jeopardy clause in the U.S. Constitution does not bar state and federal governments from separately prosecuting a defendant for the same offense. See Gamble v. United States, __ U.S. __, 139 S.Ct. 1960 (2019); Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959); State v. Myers, 82 N.C. App. 299 (1986). Two state governments may likewise prosecute a defendant for the same offense, assuming both have jurisdiction. Heath v. Alabama, 474 U.S. 82 (1985).
However, in North Carolina, there are important statutory limitations on the state’s ability to prosecute a defendant who has already been prosecuted for the same offense by another government. First, G.S. 15A-134 provides that if a charged offense occurred partly in North Carolina and partly in another state, a person charged with that offense may be tried in North Carolina only if he or she has not already been placed in jeopardy for the same offense by the other state. Additionally, G.S. 90-97 provides that if a violation of Article 5 of Chapter 90 of the General Statutes (North Carolina Controlled Substances Act) is a violation of a federal law or the law of another state, a conviction or acquittal under the federal law or the law of another state for the same act is a bar to prosecution in North Carolina state court. See State v. Brunson, 165 N.C. App. 667 (2004).
Definition of “Same Offense” under Double Jeopardy Clause
The key question for double jeopardy analysis is whether each offense requires proof of an element that is not contained in the other — if not, they are considered the same offense for double jeopardy purposes, which bars a successive prosecution. In United States v. Dixon, 509 U.S. 688 (1993), the Court reiterated that Blockburger v. United States, 284 U.S. 299 (1932), sets out the test for whether two offenses are the “same offense” under the Double Jeopardy Clause.
A simple example
For example, imagine a defendant who is charged with two offenses. Charge #1 requires proof of elements A, B, and C, while Charge #2 requires proof of elements B, C, and D. In this example, each charge requires proof of an element which is not found in the other (only Charge 1 contains element A, and only Charge 2 contains element D), so they would not be considered the same offense for purposes of a double jeopardy analysis.
North Carolina courts have re-affirmed and applied this "same offense" test, and concluded that double jeopardy did not apply in numerous cases involving similar but distinct offenses. See State v. Miller, 782 S.E. 3d 328 (2016) (not double jeopardy to convict defendant on both attempted common law robbery and attempted larceny arising out of same incident, but different victims, and facts supported each charge); State v. Parlee, 209 N.C. App. 144 (2011) (second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance); State v. Springs, 200 N.C. App. 288 (2009) (defendant may be convicted and punished for both felony possession of marijuana and felony possession of marijuana with intent to sell or deliver); State v. Newman, 186 N.C. App. 382 (2007) (resisting, delaying, or obstructing a public officer is neither the same nor a lesser offense of assault on a government officer, so double jeopardy does not apply, but per State v. Summrell, 282 N.C. 157 (1972), both offenses may not be charged on the same evidence); State v. Crump, 178 N.C. App. 717 (2006) (not double jeopardy or ‘double counting’ to use the same prior conviction as both basis for possession of a firearm by a felon charge and for habitual felon status); State v. Bethea, 173 N.C. App. 43, 617 S.E.2d 687 (2005) (double jeopardy does not bar defendant’s convictions of attempted first-degree murder and assault with deadly weapon with intent to kill inflicting serious injury based on same assault of victim); State v. Allah, 168 N.C. App. 190, 607 S.E.2d 311 (2005) (double jeopardy did not bar convictions of assault with deadly weapon with intent to kill inflicting serious injury and discharging weapon into occupied property based on same incident); State v. Vardiman, 146 N.C. App. 381 (2001), appeal dismissed, 355 N.C. 222 (2002) (not a double jeopardy violation to use the same prior DWI convictions to prove more than one habitual DWI offense); State v. McAllister, 138 N.C. App. 252 (2000) (no double jeopardy violation when defendant was convicted and punished for both second-degree murder and DWI). By contrast, see cases such as State v. Fox, 216 N.C. App. 144 (2011), where the court held that double jeopardy did apply when defendant was convicted twice for stalking, because the time periods alleged in the indictments and proven at trial overlapped.
Even if two offenses are the “same offense” under the Blockburger test, multiple punishments for the two offenses may still be permitted at a single prosecution, as long as the legislature has clearly indicated that it intended to permit convictions and punishments for both offenses. See Missouri v. Hunter, 459 U.S. 359 (1983); State v. Mulder, 233 N.C. App. 82 (2014) (finding that conviction and punishment for felony fleeing to elude, with aggravating factors of speeding and reckless driving, precluded punishment for separately charged offenses of speeding and reckless driving).
When Jeopardy Attaches
In district court, jeopardy attaches once the court begins to hear evidence, which occurs when the first witness is sworn in and begins testifying. In superior court, jeopardy attaches once the jury is sworn and impaneled. Serfass v. United States, 420 U.S. 377 (1975) ("Jeopardy does not attach until a defendant is put to trial, which, in a jury trial, occurs when the jury is empaneled and sworn, and, in a nonjury trial, when the court begins to hear evidence"); accord, State v. Brunson, 327 N.C. 244 (1990) ("We determine that the rule in North Carolina is similar to the federal rule in that jeopardy attaches in a nonjury trial when the court begins to hear evidence or testimony [....] Jeopardy did not attach on 20 July 1987 because the court did not hear any evidence and no witness testified"); Crist v. Bretz, 437 U.S. 28, 37 at n. 15 (1978); United States v. Osteen, 254 F.3d 521 (4th Cir. 2001); G.S. 7B-2414. See also State v. Coats, 17 N.C. App. 407 (1973) (continuance to another district court session of a district court trial over defendant’s objection violated double jeopardy).
Double jeopardy does not attach to a guilty plea until it is accepted by a judge. State v. Wallace, 345 N.C. 462 (1997) (state’s offer of second-degree murder plea that was rejected by judge did not bar later trial on first-degree murder). Additionally, jeopardy does not attach upon a defendant’s acknowledgement of guilt in a deferred prosecution agreement. State v. Ross, 360 N.C. 355 (2006).
“Related” Offenses Covered by Double Jeopardy
In addition to precluding subsequent prosecution for the “same offense,” as described above, double jeopardy may also preclude a successive prosecution if the defendant has already been prosecuted for a lesser, related, or joinable offense.
- Joinable Offenses
G.S. 15A-926(c)(2) provides that a defendant who has been tried for one offense may thereafter move to dismiss a charge of a joinable offense. The motion to dismiss must be made before the second trial, and must be granted unless (a) a motion for joinder of these offenses had been previously denied; (b) the court finds that the right of joinder has been waived; or (c) the court finds that because the prosecutor did not have sufficient evidence to warrant trying this offense at the time of the first trial, or because of some other reason, the ends of justice would be defeated if the motion were granted. G.S. 15A-926(c)(3) provides that the right to joinder under G.S. 15A-926(c) is inapplicable when the defendant has pleaded guilty or no contest to the previous charge. See State v. Warren, 313 N.C. 254 (1985) (no error in state’s bringing burglary and larceny charges after trial for related murder when there was insufficient evidence at time of murder trial to charge burglary and larceny offenses; see G.S. 15A-926(c)(2)c.); State v. Jones, 50 N.C. App. 263 (1981) (defendant waived right to dismissal of joinable offenses tried separately when defendant failed to make motion for joinder of all pending joinable offenses, see G.S. 15A-926(c)(1) and -926(c)(2)b.).
- Criminal Contempt Imposed after a Plenary Hearing
If the defendant has already been punished through plenary contempt proceedings, the state may not also prosecute the defendant for criminal charges in which the elements of the offense are the same as the conduct that formed the basis of the contempt finding. See United States v. Dixon, 509 U.S. 688 (1993) (prosecution for contempt of court for drug possession barred second prosecution for PWID cocaine); State v. Dye, 139 N.C. App. 148 (2000) (contempt prosecution for going to ex-husband’s residence barred second prosecution for trespassing); State v. Gilley, 135 N.C. App. 519 (1999) (adjudication for criminal contempt based on violating domestic violence protective precluded prosecution for assault on a female but not for kidnapping, because kidnapping offense required proof of elements beyond what was covered in the contempt hearing).
Prosecution of the defendant for an infraction will bar a subsequent prosecution for a more serious offense arising out of the same conduct. See State v. Griffin, 51 N.C. App. 564 (1981) (defendant’s guilty plea to a right of way infraction barred subsequent prosecution based on same conduct for misdemeanor death by motor vehicle after the other driver later died); but see State v. Hamrick, 110 N.C. App. 60 (1993) (where defendant was charged with both offenses at the same time, guilty plea to the infraction did not bar prosecution for more serious related offense).
When Conviction or Acquittal of Lesser Offense Is Bar to Later Prosecution of Greater Offense (or Vice-Versa) under Double Jeopardy Clause
Under double jeopardy’s same-elements test, a lesser-included offense is always considered the “same” as the greater offense. Thus, a prosecution for the lesser offense will bar a later prosecution for the greater offense (and vice-versa). Brown v. Ohio, 432 U.S. 161 (1977) (conviction of temporary taking of motor vehicle barred later prosecution of larceny of that motor vehicle); Green v. United States, 355 U.S. 184 (1957) (holding that where defendant was tried for first-degree murder but only convicted of second-degree murder, he may only be retried for second-degree murder following reversal of conviction on appeal); Payne v. Virginia, 468 U.S. 1062 (1984) (conviction of greater offense bars later prosecution of lesser offense). This principle would bar a later prosecution of habitual DWI after a prosecution of the underlying DWI, or a later prosecution of habitual misdemeanor assault after a prosecution of the underlying assault. See also Ball v. United States, 163 U.S. 662, 670 (1896) (acquittal of an offense is an acquittal of all lesser offenses).
However, there are several exceptions to this principle:
- Later Events Support New Charge
Events which occur after the conviction may support pursuing a more serious charge. For example, if a defendant is convicted of felonious assault and then the victim dies, the defendant may be prosecuted for murder. Diaz v. United States, 223 U.S. 442 (1912); State v. Meadows, 272 N.C. 327 (1968).
- Charges Pending at Time of Plea
Defendant’s plea to lesser offense over state’s objection does not bar the state from prosecuting a greater offense that was pending when the defendant entered the guilty plea. Ohio v. Johnson, 467 U.S. 493 (1984); State v. Hamrick, 110 N.C. App. 60 (1993). (defendant’s plea to driving left of center did not bar prosecution for related charge of misdemeanor death by motor vehicle, which was already pending at the time defendant entered plea to infraction).
- Partial Plea to Joinable Offenses
If the defendant moves to sever or opposes joinder, and then pleads guilty to one of the offenses, the state is not barred from prosecuting the remaining offenses. Jeffers v. United States, 432 U.S. 137 (1977).
- Defendant Violates Plea Bargain
A defendant who pleads guilty to a lesser offense as part of a plea bargain and then violates its terms (for example, by refusing to testify for the state at the trial of an accomplice) may be prosecuted for the original charge. Ricketts v. Adamson, 483 U.S. 1 (1987).