State v. Gilley

• Decision Date: 16 November 1999
• Docket Number: No. COA98-1124.,COA98-1124.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Raymond Fredrick GILLEY, Defendant.

522 S.E.2d 111

135 NC App. 519

STATE of North Carolina v. Raymond Fredrick GILLEY, Defendant.

No. COA98-1124.

Court of Appeals of North Carolina.

November 16, 1999.

Attorney General Michael F. Easley, by Assistant Attorney General Teresa L. Harris, for the State.

Clifford, Clendenin, O'Hale and Jones, L.L.P., by Walter L. Jones, Greensboro, for defendant-appellant.

JOHN, Judge.

Defendant appeals judgment entered upon convictions by a jury of first degree kidnapping, domestic criminal trespass, communicating threats, misdemeanor breaking and entering, and assault on a female. We vacate the latter conviction.

The State's evidence at trial tended to show the following: Defendant and Vicky Gilley (Mrs. Gilley) were married in March 1989 and separated 5 February 1995. Mrs. Gilley continued to reside in the marital residence with the couple's daughter and Mrs. Gilley's twin daughters from a previous marriage. After two violent incidents between defendant and Mrs. Gilley, one occurring at the former marital residence and the other at the home of Mrs. Gilley's parents, a domestic violence protective order (the order), effective until 16 March 1996, was issued 16 March 1995 and served upon defendant that same date.

Notwithstanding, defendant entered the marital residence on 7 January 1996 armed with a knife. Following a physical altercation with Mrs. Gilley, defendant forced her into his truck, but she jumped out and escaped while he was operating the vehicle.

On 23 January 1996, Mrs. Gilley filed a Motion for Order to Show Cause. Plaintiff alleged defendant "kicked the [house] door in," "physically abused" her, "ripped off [her] clothes," "kidnapped [her] from the residence," and "abducted the [couple's] daughter—Erica." At a hearing conducted in Guilford County District Court, defendant admitted he went to Mrs. Gilley's residence on 7 January 1996, kicked in the door, "slapp[ed] Vicky around," ripped off her clothes, and took her outside to his truck, and that he knew the order was in effect when he committed the foregoing acts. Defendant thereupon was ordered committed to the Guilford County jail for 30 days based upon the court's determination he had "willfully failed to comply with the Domestic Violence Protective Order and [wa]s in Criminal Contempt."

On 18 March 1996, defendant was indicted upon charges of first degree burglary, first degree kidnapping, domestic criminal trespass, communicating threats, and assault on a female in connection with the 7 January 1996 incident. On 8 August 1996, defendant filed a "Plea of Former Jeopardy," moving for dismissal (defendant's motion) of all criminal charges except that of communicating threats based upon the principle of double jeopardy. The trial court rejected defendant's motion and defendant was subsequently convicted by a jury at trial on all counts save that of burglary. In the latter instance, he was found guilty of non-felonious breaking or entering. The offenses were consolidated for judgment and defendant was ordered "imprisoned for a minimum term of 145 months [and] for a maximum term of 183 months." Defendant timely appealed.

On appeal, defendant contends the trial court erred in failing to grant his motion to dismiss. We agree in limited part.

In defendant's motion, he alleged prosecution of the criminal charges would violate the double jeopardy prohibitions contained in "the North Carolina Constitution and the Constitution of the United States." See U.S. Const. amend. V and N.C. Const. art. I, § 19. Neither defendant's assignment of error nor the arguments in his appellate brief address provisions of our North Carolina Constitution. Accordingly, any argument based thereon is not properly before us. See N.C.R.App. P. 10(a) (scope of appellate review "confined to ... consideration of those assignments of error set out in the record on appeal") and N.C.R.App. P. 28(b)(5) ("[a]ssignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned"). Nonetheless, we note that

[b]oth the Fifth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution protect against multiple punishments for the same offense.

State v. Elliott, 344 N.C. 242, 277, 475 S.E.2d 202, 218 (1996), cert. denied, 520 U.S. 1106, 117 S.Ct. 1111, 137 L.Ed.2d 312 (1997).

In pertinent part, the Fifth Amendment to the United States Constitution (the Double Jeopardy Clause) provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause protects against

(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986) (citations omitted); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656, 664-65 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 802, 109 S.Ct. 2201, 2206, 104 L.Ed.2d 865, 874-75 (1989)

. Criminal contempt enforced through nonsummary proceedings, as in the instant case, is "a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522, 528 (1968), and therefore the prohibition against "a second prosecution for the same offense after conviction," Gardner, 315 N.C. at 451,

340 S.E.2d at 707, is implicated herein; see United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2855-56, 125 L.Ed.2d 556, 568 (1993)(constitutional protection of the Double Jeopardy Clause applies to nonsummary criminal contempt prosecutions).

Defendant's argument presents an issue of first impression in North Carolina, i.e., the extent to which the Double Jeopardy Clause relates to subsequent prosecution for a substantive criminal offense following an adjudication of criminal contempt based upon violation of a court order forbidding such criminal act. As this Court has noted, "`the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage,'" and is applicable to the States through the Fourteenth Amendment. State v. Perry, 52 N.C.App. 48, 55, 278 S.E.2d 273, 279 (1981), modified in part on other grounds, 305 N.C. 225, 287 S.E.2d 810 (1982)

(quoting Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969)). Accordingly, the validity of defendant's convictions following his being held in contempt "`must be judged ... under [the United States Supreme] Court's interpretations of the Fifth Amendment double jeopardy provision.'" Id. (quoting Benton, 395 U.S. at 796,

89 S.Ct. at 2063,

23 L.Ed.2d at 717). See State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984),

overruled on other grounds, McDowell v. Dixon, 858 F.2d 945 (4th Cir.1988) ("[s]tate courts are no less obligated to protect and no less capable of protecting a defendant's federal constitutional rights than are federal courts ... [and] [i]n performing this obligation a state court should exercise and apply its own independent judgment, treating ... decisions of the United States Supreme Court as binding").

The most recent "binding," id., decision of the United States Supreme Court (the Supreme Court) pertinent to our inquiry herein is that of United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), in actuality two cases joined for appeal which resulted in a multiplicity of opinions. The majority holdings were constructed by interweaving the Supreme Court's five separate opinions.

In Dixon, a majority of the Supreme Court held that the sole test applied to determine whether a successive prosecution—based upon conduct which had resulted in an adjudication of contempt—is barred by the Double Jeopardy Clause was the "same-elements" test set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

The same-elements test, sometimes referred to as the "Blockburger" test, inquires whether each offense contains an element not contained in the other; if not, they are the "same offence" and double jeopardy bars additional punishment and successive prosecution.

Dixon, 509 U.S. at 696, 113 S.Ct. at 2856, 125 L.Ed.2d at 568.

However, the Supreme Court had written in Blockburger that

[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. A majority of the justices in Dixon refined Blockburger by overruling Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), to the extent that decision required, in addition to the "same-elements" test, subsequent prosecution to satisfy a "same-conduct" test, Dixon, 509 U.S. at 704, 113 S.Ct. at 2860, 125 L.Ed.2d at 573. According to Dixon, the "same-conduct" test prohibited a second prosecution if,

to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

Id. at 697, 113 S.Ct. at 2856, 125 L.Ed.2d at 568 (quoting Grady, 495 U.S. at 510, 110 S.Ct. at 2087, 109 L.Ed.2d at 557).

Although a majority of the Supreme Court in Dixon agreed the Blockburger test was equivalent to the "same-elements" test, differing applications thereof were proffered in the Court's multiple opinions. In rendering the opinion of the Supreme Court on most issues, Justice Scalia emphasized examination of the content and language of the previous court order, while Chief Justice Rehnquist, in an opinion concurring in part and dissenting in part,...