State v. Vestal , 131 N.C. App. 756 ( 1998 )

MARTIN, Mark D., Judge.

The State of North Carolina appeals from order dismissing with prejudice the case against defendant charged with conspiracy to deliver marijuana.

At trial, after the jury had been empaneled and sworn, and subsequent to presentation of the State’s case, the trial court, sua sponte, dismissed the case against defendant with prejudice on the ground that the High Point Police Department had “violat[ed] a trial court order without court approval,” by using drugs in an undercover operation which had been forfeited in a prior case and were awaiting destruction.

As a preliminary matter, the State asserts the rule against double jeopardy, Fifth Amendment to the United States Constitution and the “law of the land” clause of Article I, § 19 of the North Carolina Constitution, does not bar the State, on appeal, from seeking reversal of the trial court’s order of dismissal with prejudice. We disagree.

The right to appeal in a criminal proceeding is purely statutory. Abney v. United States, 431 U.S. 651, 656, 52 L. Ed. 2d 651, 658 (1977). The State may not appeal a judgment in favor of a criminal defendant in the absence of a statute “clearly conferring that right.” State v. Dobson, 51 N.C. App. 445, 446, 276 S.E.2d 480, 481 (1981). Statutes authorizing appeal by the State in a criminal proceeding are “strictly construed” and “may not be enlarged” by this Court. Id. at 447, 276 S.E.2d at 482.

, N.C. Gen. Stat. § 15A-1445(a) (1997) provides the State may appeal an order dismissing a criminal charge “[ujnless the rule against double jeopardy prohibits further prosecution.” State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d 610, 613, disc. review denied, 337 N.C. 805 (1994). Because the rule against double jeopardy precludes further prosecution in the present case, the State’s appeal must be dismissed.¹

The United States Supreme Court has articulated one aspect of the underlying rationale of the Double Jeopardy Clause of the United States Constitution as follows:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

United States v. Green, 355 U.S. 184, 187-188, 2 L. Ed. 2d 199, 204 (1957).

This salutory principle was later relied on in United States v. Jenkins, 420 U.S. 358, 43 L. Ed. 2d 250 (1975), overruled by, United States v. Scott, 437 U.S. 82, 57 L. Ed. 2d 65, reh’g denied, 439 U.S. 883, 58 L. Ed. 2d 197 (1978), where the Court held that a dismissal occurring at the stage of the proceeding after jeopardy had attached but prior to the factfinder’s conclusion as to guilt or innocence, barred the State from appealing, as the appeal would require further proceedings leading to a factual resolution of the issue of guilt or innocence. Id. at 369-370, 43 L. Ed. 2d at 259.

In Scott, 437 U.S. 82, 57 L. Ed. 2d 65, the United States Supreme Court, overturning Jenkins, relaxed its application of this principle and stated that when a defendant takes an active role in the trial court’s dismissal of the indictment, the State is not necessarily precluded from appealing the dismissal. In so holding, the Court concluded that:

the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant.... Rather, we conclude that the Double Jeopardy Clause, which guards against Governmental oppression, does not relieve a defendant from the consequences of his voluntary choice ....

... No interest protected by the Double Jeopardy Clause is invaded when the Government is allowed to appeal and seek reversal of such a midtrial termination of the proceedings in a manner favorable to the defendant.

Id. at 99-100, 57 L. Ed. 2d at 79-80 (1978) (emphasis added).

In State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610, this Court followed the Scott reasoning and rejected defendant’s argument that the rule against double jeopardy precluded his re-trial for habitual driving while impaired. In that case, the trial court dismissed the charge, upon defendant’s motion, on the ground that it had no jurisdiction — a matter “entirely unrelated to the sufficiency of evidence as to any element of the offense or to defendant’s guilt or innocence.” Id. at 551, 445 S.E.2d at 613.

Scott and Priddy mandate the rule against double jeopardy will not bar an appeal by the government where the defendant took an active role in the dismissal, because defendant essentially chose to end the trial and cannot later complain that he was “deprived of his ‘valued right to have his trial completed by a particular tribunal.’ ” Scott, 437 U.S. at 99-100, 57 L. Ed. 2d at 80 (quoting United States v. Jorn, 400 U.S. 470, 484, 27 L. Ed. 2d 543, 556 (1971)); State v. Priddy, 115 N.C. App. at 551, 445 S.E.2d at 613. Put simply, the Double Jeopardy Clause “does not relieve a defendant from the consequences of his voluntary choice.” Scott, 437 U.S. at 99, 57 L. Ed. 2d at 79.

In United States v. Dahlstrum, 655 F.2d 971 (9th Cir. 1981), cert. denied, 455 U.S. 928, 71 L. Ed. 2d 472 (1982), the government appealed from the trial court’s dismissal of an indictment on grounds apart from guilt or innocence. Id. at 973. During presentation of the government’s case, the trial court became concerned that a government agency had abused its power. Id. When the government called a witness in an attempt to eliminate the trial court’s concern, the court grew increasingly disturbed and ordered another witness to appear to help explain the agency’s practices and procedures. Id. On the basis of this testimony, the trial court orally dismissed the indictment against the defendant because of “governmental misconduct.” Id. In dismissing the appeal, the 9th Circuit stated

[t]he record convinces us that the judge took complete control of the proceedings and set off on a course over which [defendant] had practically no control. Nowhere does it appear that the judge, prior to the oral dismissal of the indictment, even consulted [defendant] on what course of action to take. For that matter, the judge’s words and actions indicated that his primary concern was not with the case before him, but with the effect of his actions on future IRS investigations. The entire record indicates that the judge had no interest in completing the trial. [Defendant’s] involvement in the termination of the trial was at best minimal and in no way reached the high degree of participation that was present in Scott. Nor can it be said that [defendant] retained “primary control” over the course of the trial. For that matter, the record shows that he had no control over what was occurring. . . . His relatively passive role should not be taken to reflect anything beyond a keen appreciation of the fact that the judge had taken over the proceedings.

Id. at 975. (citations omitted).

In the instant case, it is undisputed that jeopardy had attached because the trial court dismissed the charge against defendant “with prejudice” after a competent jury had been duly empaneled and sworn. See State v. Cutshall, 278 N.C. at 344, 180 S.E.2d at 751 (“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 empaneled and sworn.”). It is also undisputed that the trial judge, sua sponte, instigated the dismissal and took complete control of the proceeding, indicating his primary concern was the effect his order would have on future police investigations.

Unlike Scott and this Court’s decision in Priddy, defendant here did not take an active role in the process which led to dismissal of the charge against him. Rather, due to the trial court’s sua sponte dismissal of this case, defendant was involuntarily deprived of his constitutional right to have his trial completed by the jury which had been duly empaneled and sworn. Cf. United States v. Jorn, 400 U.S. at 484, 27 L. Ed. 2d at 556. As such, the rule against double jeopardy bars further prosecution of defendant on the charge set forth in the indictment. See State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986) (Double Jeopardy Clause protects against “second prosecution for the same offense after acquittal”).

Because the rule against double jeopardy deprives this Court of any jurisdictional basis under section 15A-1445(a) to hear the present appeal, it must be dismissed.

Dismissed.

Judge GREENE concurs. Judge JOHN concurs with separate opinion.

1 . We note defendant’s failure to assert the double jeopardy issue on appeal does not foreclose our review under section 15A-1445(a). It is well settled that the primary goal of statutory construction is to discern the intent of the legislature. See, e.g., Bowers v. City of High Point, 339 N.C. 413, 419, 451 S.E.2d 284, 289 (1994). The General Assembly enacted the North Carolina Criminal Procedure Act, which incorporates section 15A-1445(a), in 1977. At that time, a defendant was not required to plead double jeopardy as a bar until the State attempted to retry him. See State v. Cutshall, 278 N.C. 334, 343, 180 S.E.2d 745, 750 (1971), appeal after remand, 281 N.C. 588, 189 S.E.2d 176 (1972). As a result, we discern that the legislature did not intend to require a defendant, on appeal from an order of dismissal at the first trial, to assert the double jeopardy issue as a prerequisite to this Court’s jurisdictional review under section 15A-1445(a). The language of section 15A-1445(a) reinforces this conclusion by barring appeal by the State when “the rule against double jeopardy prohibits further prosecution.” Accordingly, defendant’s failure to assert the double jeopardy issue in brief does not relieve this Court of its plenary duty to determine whether a jurisdictional basis exists for the present appeal. See Waters v. Personnel, Inc., 294 N.C. 200, 201, 240 S.E.2d 338, 340 (1978) (“If an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question of appealability has not been raised by the parties themselves.”).