State v. White, 222A87

• Court: United States State Supreme Court of North Carolina
• Citation: 322 N.C. 506,369 S.E.2d 813
• Docket Number: No. 222A87,222A87
• Parties: STATE of North Carolina v. Willie James WHITE.
• Decision Date: 30 June 1988

Page 813

369 S.E.2d 813

322 N.C. 506

STATE of North Carolina v. Willie James WHITE.

No. 222A87.

Supreme Court of North Carolina.

June 30, 1988.

Lacy H. Thornburg, Atty. Gen. by G. Patrick Murphy, Asst. Atty. Gen., Raleigh, for the State.

Isabel Scott Day, Public Defender by Marc D. Towler, Asst. Public Defender, Charlotte, for defendant-appellee.

WHICHARD, Justice.

Defendant was charged with armed robbery. The initial trial began on 9 December 1985 before Judge Robert E. Gaines. Defense counsel moved for a mistrial after the prosecutor asked defendant on re-cross examination, "Isn't it true that on [the] assault on [a] female conviction you were originally tried on second degree rape?" The court granted the motion and admonished the prosecutor for asking the question.

Prior to retrial, defendant moved to dismiss the indictment on double jeopardy grounds, arguing that the prosecutor's intentional misconduct provoked the mistrial. On 17 March 1986, Judge Chase B. Saunders denied the motion, finding as a fact that "[b]ased upon [counsels' briefs, affidavits, the transcript of part of the trial proceeding] and arguments of counsel ... the Assistant District Attorney did not intend to goad the defendant into moving for a mistrial so as to improve the chances of the State upon retrial for a conviction." The court concluded as a matter of law that

assuming arguendo, the Assistant District Attorney acted in bad faith, a review of the record and affidavits fails to establish that the prosecutor's behavior in question was conducted so as to afford the prosecution a more favorable opportunity to convict the defendant, the record reflecting that there was ample evidence before the jury upon which a verdict favorable to the State could be returned.

On retrial, the State's evidence tended to show that in the early morning hours of 20 June 1985, Roberta Stitt was driving to a convenience store with Sheila Smith, her friend, in the passenger seat. When Stitt slowed down to round a sharp curve, defendant opened the door on the driver's side, put a gun to Stitt's head, and pulled her out of the car. Smith jumped out and ran. Defendant got in Stitt's car and drove off.

Defendant testified on his own behalf. He said that on the night in question Stitt agreed to give him a ride to Belmont. While in the car with Stitt and Smith, defendant gave Stitt $35.00 to buy him some cocaine. Stitt told him he would have to wait while she went to get the drugs, so he demanded the return of his money. Stitt became "hysterical" and refused to return the money. Defendant said, "Ya'll going to give me somethin' back, my money or somethin'," and he reached toward the women in the front seat. Stitt and Smith jumped out of the car. Defendant got in the driver's seat and drove the car to Forest City. He hid some credit cards, which he found in the car, under a couch cushion in his girlfriend's home, and hid the car keys in a stove outside her home. He sold the car radio.

During the instructions conference, defendant asked the court to charge the jury on misdemeanor larceny. The court denied this request. The jury found defendant guilty of armed robbery, and the court sentenced him to fourteen years imprisonment.

On appeal, the Court of Appeals held that because misdemeanor larceny is a lesser included offense of armed robbery, the trial court erred in not charging the jury on misdemeanor larceny. State v. White, 85 N.C.App. 81, 354 S.E.2d 324 (1987). It found no error in the denial of defendant's motion to dismiss on double jeopardy grounds. Judge Johnson concurred on the double jeopardy question, but dissented on the issue of whether misdemeanor larceny is a lesser included offense of armed robbery. He noted that he agreed with the majority's reasoning, but believed that he was compelled to dissent by prior decisions of this Court. Id. at 92-93, 354 S.E.2d at 331-32.

The State appealed as a matter of right on the lesser included offense question. We allowed defendant's petition for discretionary review of the double jeopardy question. We now affirm the Court of Appeals on both issues.

I.

Defendant argues that retrial was barred by the double jeopardy clauses of the federal and state constitutions. We disagree.

The Fifth and Fourteenth Amendments to the United States Constitution guarantee freedom from multiple prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606 & n. 8, 96 S.Ct. 1075, 1079 & n. 8, 47 L.Ed.2d 267, 273 & n. 8 (1976). Reprosecution for the same offense is not usually barred, however, when a trial terminates in a mistrial with the consent of the defendant or upon the defendant's motion, even if that motion is motivated by prosecutorial error.

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion ... does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant's motion for a mistrial constitutes "a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact." United States v. Scott, 437 U.S. 82, 93, [98 S.Ct. 2187, 2195, 57 L.Ed.2d 65, 76] (1978).... Only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

... Knowing that the granting of the defendant's motion ... would all but inevitably bring with it an attempt to bar a second trial on grounds of double jeopardy, the judge presiding over the first trial might well be more loath to grant a defendant's motion for mistrial.

Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089-90, 72 L.Ed.2d 416, 424-25 (1982). In deciding whether Judge Saunders properly denied defendant's motion to dismiss on federal constitutional grounds, we must apply the above standard.

Article I, Section 19 of the North Carolina Constitution, the "law of the land" clause, prohibits reprosecution for the same offense. State v. Cameron, 283 N.C. 191, 197, 195 S.E.2d 481, 485 (1973); State v. Ballard, 280 N.C. 479, 482, 186 S.E.2d 372, 373 (1972). Under North Carolina law, as under federal law, however, an order of mistrial usually does not bar retrial if the mistrial is entered upon the defendant's motion. State v. Britt, 291 N.C. 528, 543, 231 S.E.2d 644, 654 (1977). The Court of Appeals believed that, in determining defendant's right not to be tried a second time, the test required by the state constitution should be broader than that required by the federal constitution. It believed that the appropriate test was that stated in the concurring opinion in Kennedy and that retrial of a case ending in mistrial upon the defendant's motion should be barred where "bad faith prosecutorial overreaching or harassment aimed at prejudicing the defendant's chances for acquittal ... 'has rendered unmeaningful the defendant's choice to continue or to abort the proceeding.' " State v. White, 85 N.C.App. at 88, 354 S.E.2d at 329 (quoting Oregon v. Kennedy, 456 U.S. at 689, 102 S.Ct. at 2097, 72 L.Ed.2d at 433 (Stevens, J., concurring)).

We adopt, instead, as the test for determining under our state constitution whether a case may be retried after the court grants a defendant's motion for a mistrial, the test stated in the majority opinion in Kennedy. If a defendant moves for a mistrial, he or she normally should be held to have waived the right not to be tried a second time for the same offense. Where the defendant makes such a motion because of prosecutorial misconduct, and the court grants the motion, retrial is not barred by Article I, Section 19 unless the defendant shows that the prosecutor was motivated by the intent to provoke a mistrial instead of merely the intent to prejudice the defendant. We agree with the majority in Kennedy that the prosecutorial intent standard is fairer and easier to apply than an overreaching or harassment standard. We also agree that a trial court might be more reluctant to grant a mistrial based on prosecutorial overreaching or harassment if it knows that to do so will lead to a plea of former jeopardy.

Applying that test here, we conclude that the trial court did not err in denying defendant's motion to dismiss on grounds of double jeopardy. Judge Gaines did not make findings of fact when he granted defendant's motion for mistrial. At the hearing before Judge Saunders, defendant presented a portion of the transcript of the first trial and affidavits by the assistant appellate defender who then represented him. Judge Saunders found as a fact, based upon the affidavits and transcript, that the prosecutor did not intend to goad defendant into moving for a mistrial. The record suffices to permit appellate review of whether this refusal to dismiss the case against defendant was proper.

During the first trial, the prosecutor asked the improper question on re-cross examination of defendant. At that time, the State's evidence against defendant was substantial. Roberta Stitt and Sheila Smith had testified that: Stitt was driving her car with Smith in the passenger seat; defendant opened a car door, put a gun to Stitt's head, and pulled her out; Smith jumped out, and defendant drove off in the car. In light of the State's strong case against defendant, it is highly unlikely that the prosecutor intended to provoke defendant into moving for a mistrial.

The record contains still further support for this conclusion. First, the prosecutor requested that the court give a limiting instruction rather than grant a mistrial. Second, after granting defendant's motion, the court told the jury that the case would have to be tried again. Finally, in the hearing before Judge Saunders, the prosecutor stated that based on the record "it would...