NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
DISTRICT COURT DIVISION
____________ COUNTY
FILE NO.
STATE OF NORTH CAROLINA,
MOTION TO DISMISS
For violation of the
DOUBLE JEOPARDY
Clause of the Untied States Constitution
_______________________
Plaintiff,
v.
_________________,
Defendant.
______________________________________________________________________________
NOW COMES the Defendant by and through undersigned counsel and moves the court to dismiss the above styled cases pursuant to the 5th Amendment of the Untied States Constitution. In addition the Defendant submits:
the Affidavit of the Defendant attached hereto and incorporated herein by reference.
a copy of the Court Minutes for the above styled matter from December 15th 2008 attached hereto and incorporated herein by reference.
Statement of the Case
On August 5, 2007, Defendant was charged with Driving While Impaired, along with other charges.
After multiple court dates, on October 16, 2008, the Defendant appeared before the Honorable Judge ______ for hearing at which, Judge ______ ordered that the blood could be retested, but at the insistence of the State, the Judge specifically ordered that the case could not be continued past the December 15, 2008 court date.
3. Although the oral Order is binding, there was no Final Order signed by Judge ______ on that date or later due to differences in how the State and the Defense wanted it worded. Since the Defense was not able to get a signed Order regarding the retesting of the blood, the Defendant, through his attorney, acknowledged that he would have to proceed to trial as ordered on December 15, 2008, with no further delays, and waived the retesting of the blood.
4. Because Judge _______ ordered that the matter would not be continued after the December 15, 2008 date, Defendant appeared with his attorney ready for trial on December 15, 2008 without any retesting of the blood.
5. On December 15, 2008 the matter came on for trial before the Honorable Wendy ______, duly elected and enpanelled to hear cases in the District Court of North Carolina.
6.On December 15, 2008, assistant district attorney, _______, called the matter for trial. The Defendant was arraigned and entered a plea of “Not Guilty” as to each of the individual charges in the above styled matters.
7. After arraignment and the entry of the plea of Not Guilty, the State called its first witness, Trooper ______.
8. Trooper ______ was sworn in and testified about investigating a wreck scene on August 5, 2007, and further, his investigation and interview of Defendant.
9. During trial, the State attempted to introduce blood results into evidence, but Defendant’s attorney objected as the State had not laid the proper foundation regarding the proper chain of custody
10. Judge __________ allowed the State to have a recess in the trial in order for the State to attempt to get the proper documents together, so that the State could introduce a proper chain of custody. The Honorable Judge _______ ordered that both parties return for the resumption of trial at 4:00 p.m. that same day.
11. All parties appeared back before the Honorable Judge ________ at 4:00 p.m., as instructed, to resume the trial; however, the State still did not have the documents needed to prove chain of custody.
12.Defendant’s attorney and Assistant District Attorney ______ spoke briefly in the hallway concerning how to proceed. The Defendant would not stipulate to any chain of custody, and as no agreement could be reached, the assistant district attorney walked into the courtroom and unilaterally stated that, “[w]e’re declaring a mistrial on this case.”
13.Defendant’s attorney immediately objected to a mistrial being declared, as there were no grounds for such result, nor did the assistant district attorney offer a reason or explanation for his unilateral declaration of a mistrial.
14.No reason was given for the discontinuation of the trial, the presiding Judge did not enter any finding of fact, nor did the Honorable Judge _____ make any ruling on the discontinuation of the trial.
15. The State has now attempted to reset the matter for a second trial after Jeopardy has attached.
Wherefore the Defendant prays the Court:
Dismiss the above styled matters because Defendant has already been placed in jeopardy, and any further prosecution of the Defendant on the above styled matter would violate the hallowed rights guaranteed by both the United States and North Carolina Constitutions.
This ___________ day of _______________, 20______.
___________________________
Attorney for Defendant
NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
DISTRICT COURT DIVISION
_________ COUNTY
DEFENDANT’S BRIEF
IN SUPPORT OF
MOTION TO DISMISS
STATE OF NORTH CAROLINA,
Plaintiff,
v.
_______________________,
Defendant.
_____________________________________________________________________________
NOW COMES the Defendant, by and through counsel, and respectfully submits the following brief in support of the Defendant’s Motion to Dismiss.
STATEMENT OF THE ISSUES
Subsequent to the arraignment of the Defendant in the above styled matters and the swearing of and testimony of Trooper ______, had Jeopardy attached?
2. Once Jeopardy has attached, may the State unilaterally declare a mistrial?
3. Can the State be granted a mistrial, despite the fact that the Court entered no Findings of Fact, nor any Conclusions of Law which could allow for a mistrial to be properly entered, and none was entered on the official Court Minutes?
STATEMENT OF THE ARGUMENT
Issue 1
Subsequent to the arraignment of the Defendant in the above styled matters and the swearing of and testimony of Trooper ________, had Double Jeopardy attached?
Black’s law dictionary defines former jeopardy as a plea that a person cannot be tried for an offense more than once. Double jeopardy is a fundamental common law and constitutional right of a defendant that affords protection against being tried again for the same offense. Black’s Law Dictionary, 6th Ed.
In State v. Coats, 17 N.C. App. 407, 194 S.E. 2d 366 (1973), the North Carolina Court of Appeals held that jeopardy attaches when a defendant in a criminal prosecution is placed on trial (1) on a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been impaneled and sworn to make true deliverance in the case. A valid citation charging an offense within the jurisdiction of the District Court is sufficient to satisfy requirement (1) when the trial is in District Court. When the state calls upon a defendant to plead to a charge in District Court, requirement (3) is satisfied. When a duly elected, qualified, and assigned District Court judge is properly seated to hear the trial, requirement (5) is satisfied. Requirements (2) and (4) are by their terms applicable to either the Superior Court or the District Court. See State v. Coats, 17 N.C. App. 407, 414 (1973).
In the instant matter, Defendant was properly charged, via citation, with driving while impaired, speeding to endanger, driving while license revoked, and possession of a revoked driver’s license. Thus, element (1) is met. On December 15, 2008, Defendant was arraigned by the assistant district attorney and entered a plea of not guilty in the District Court. Thus, elements (3) and (4) are met. Subsequently, the Honorable ___________ called the matter trial and the State proceeded to call its first witness, and Trooper ________ was sworn and testified on behalf of the state. Thus elements (2) and (5) have been met.
There can be no question that jeopardy attached in the above styled matters. Not only was Defendant arraigned and pled not guilty before the Honorable ___________________, but the State’s primary witness, Trooper ________ was sworn and fully testified before the trial was stopped and unilaterally terminated by the assistant district attorney.
Issue 2
Once Jeopardy has attached, may the State unilaterally declare a mistrial, without giving proper justification, and making a motion for mistrial upon which a Judge must rule?
Now concluding that Jeopardy has attached on the above styled matters, the remaining issue is whether a mistrial could be properly declared without motion by the State, but rather through the assistant district attorney’ s unilateral declaration.
Pursuant to North Carolina Gen. Stat. § 15A 1062, the granting of a mistrial by the presiding judge on motion by the State is proper only in very limited circumstances:
Upon motion of the State, the judge may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct resulting in substantial and irreparable prejudice to the State's case and the misconduct was by a juror or the defendant, his lawyer, or someone acting at the behest of the defendant or his lawyer. If there are two or more defendants, the mistrial may not be declared as to a defendant who does not join in the motion of the State if:
(1) Neither he, his lawyer, nor a person acting at his or his lawyer's behest participated in the misconduct; or
(2) The State's case is not substantially and irreparably prejudiced as to him.
N.C.G.S. § 15A-1602 (emphasis added).
Clearly, in the instant matter, the State’s unilateral declaration of a mistrial is fatally flawed in more ways than one. First, the State failed to make a motion to the court moving for a mistrial. Rather, Assistant District Attorney unilaterally, without consent of the Judge or Defense counsel, attempted to declare a mistrial, and unilaterally terminated any further proceedings that day. The State has the absolute discretion to terminate a trial at any point prior to the final entry of Judgment, when the matter is then in the Court’s hands. However, if the State chooses to unilaterally terminate the trial after Jeopardy has attached, it is barred from further prosecution.
Both Common Law and 15A 1062 require that a motion be made to the court. No such motion was made, and thus, this alone makes any declaration of a mistrial actually become a voluntary dismissal. Further, Assistant District Attorney offered no evidence of “substantial and irreparable prejudice.” In fact, Assistant District Attorney offered no particular reason whatsoever for the declaration of mistrial. And finally, even if Assistant District Attorney had offered evidence of “substantial and irreparable prejudice,” he offered no evidence of any misconduct on the part of Defendant.
Issue 3
Can the State be granted a mistrial, despite the fact that the Court entered no Findings of Fact, nor any Conclusions of Law which could allow for a mistrial to be properly entered, and none was entered on the official Court Minutes?
Even if it is assumed that the State had valid grounds to argue for a mistrial in compliance with N.C.G.S. § 15A-1062, no such argument was made, no findings of fact were made, and no conclusions of law were made. Furthermore, no Order of mistrial was entered on the Judgment, nor on the shuck, nor on the Court Minutes.
In order for a mistrial to be proper, “[b]efore granting a mistrial, the judge must make finding of facts with respect to the grounds for the mistrial and insert the findings in the record of the case.” N.C.G.S. § 15A-1064. The judge made no findings of fact, and thus, there could have been no grant of mistrial.
There are two other instances where a mistrial may be declared, but only when there is a motion made to the court. While there was clearly no motion to the Court, nor ruling by the Court, nor consent by the Defense, the statutes are discussed briefly.
§ 15A-1063. Mistrial for impossibility of proceeding.
Upon motion of a party or upon his own motion, a judge may declare a mistrial if:
(1) It is impossible for the trial to proceed in conformity with law; or
(2) It appears there is no reasonable probability of the jury's agreement upon a verdict.
and
§ 15A-1061. Mistrial for prejudice to defendant.
Upon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case. If there are two or more defendants, the mistrial may not be declared as to a defendant who does not make or join in the motion.
Certainly, neither of these is applicable to the instant matter because (1) there was no impossibility of proceeding in conformity with law, and (2) there was no prejudice to the Defendant occurring prior to ADA Reavis’ unilateral termination of the proceedings. Further, even if one of these sections applied, no motion was ever brought to the court to rule on by either party, and the Defense objected in open court. In addition, the Judge never ruled on the mistrial, nor made any of the required findings of fact as to any of the factors which could justify a mistrial.
Furthermore, neither party consented that any Order could be issued later out of term or out of session.
As a result of Assistant District Attorney's unilateral termination of the proceedings, and because none of the above referenced statutes were followed or even applicable, this Court must find that Jeopardy attached in the matters.
Respectfully submitted this the ______ day of _____________, 20_____.
__________________
Attorney for Defendant