104.91Double Jeopardy

I. Separate Sovereigns

Under the dual sovereignty doctrine, a defendant may be prosecuted for the same offense by both federal and state authorities, or by two different states, or by state and tribal authorities without violating constitutional prohibitions on double jeopardy. See Gamble v. United States, 587 U.S. 678, 681 (2019); Heath v. Alabama, 474 U.S. 82, 88 (1985); State v. Myers, 82 N.C. App. 299, 299-300 (1986). As a result, state prosecutors are not bound by a defendant’s plea agreement with federal prosecutors. State v. Midgett, 78 N.C. App. 387, 389 (1985). For the same reason, a defendant is not entitled to credit against his state sentence for time spent in federal custody. State v. Lewis, 231 N.C. App. 438, 445 (2013). Similarly, collateral estoppel does not apply where separate sovereigns are involved. State v. Brooks, 337 N.C. 132, 146 (1994).

As noted above, however, several statutes provide greater protection than is required by the Fifth Amendment. In particular, if an offense occurred in part within and in part outside North Carolina, a person charged with that offense “may be tried in this State if he has not been placed in jeopardy for the identical offense in another state.” G.S. 15A-134; State v. Christian, 288 N.C. App. 50, 52 (2023). And for drug offenses (i.e., violations of Chapter 90), “a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this State.” G.S. 90-97; State v. Brunson, 165 N.C. App. 667, 671 (2004).

II. Joinder

By statute, two or more offenses may be joined for trial when the offenses are “based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.” G.S. 15A-926(a). When a defendant is charged with joinable offenses, his motion for joinder of offenses “must be granted” unless the court finds, for one reason or another, that the ends of justice would be defeated if the motion were granted. Id. at (c)(1). “A defendant who has been tried for one offense may move to dismiss a charge of a joinable offense.” Id. at (c)(2). The motion must be made prior to the second trial, and must be granted unless:

1. A motion for joiner was previously denied,
2. The court finds that the right of joinder has been waived, or
3. 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.

Id.

Limitations

The right to joinder is inapplicable if the defendant pled guilty to the previous charge. G.S. 15A-926(c)(3). In addition, a defendant is not entitled to dismissal for failure to join offenses if the defendant had not been indicted on the additional charges at the time of the first trial, State v. Furr, 292 N.C. 711, 724 (1977), unless the defendant can show that the prosecution withheld additional charges solely to circumvent joinder requirements. State v. Schalow, 379 N.C. 639, 651 (2021); State v. Warren, 313 N.C. 254, 260 (1985). Two circumstances would support but not compel a determination the prosecutor withheld charges to circumvent joinder requirements:

1. A showing that during the first trial the prosecutor was aware of substantial evidence that the defendant had committed the crimes for which s/he was later indicted; and
2. A showing that the State’s evidence at the second trial would be the same as the evidence presented at the first.

State v. Warren, 313 N.C. 254, 260 (1985); see also State v. Tew, 149 N.C. App. 456, 460 (2002). In assessing a claim that the prosecution withheld additional charges to circumvent the statute, “the court must assess the justification offered by the State and determine if legitimate prosecutorial reasons supported the conduct.” State v. Schalow, 379 N.C. 639, 652 (2021).