State v. Jones , 67 N.C. App. 413 ( 1984 )

Judge JOHNSON

dissenting.

I respectfully dissent from the majority’s holdings (1) that defendant has no immediate right to appeal, and (2) that no substantial right is affected by the denial of his motion to dismiss on the grounds of former jeopardy.

The “sacred principle of common law” that no person can twice be put in jeopardy for the same offense is a right guaranteed to criminal defendants both by the Constitution of North Carolina, State v. Battle, 279 N.C. 484, 183 S.E. 2d 641 (1971), and by the United States Constitution. Benton v. Maryland, 395 U.S. 784, 23 L.Ed. 2d 707, 89 S.Ct. 2056 (1969).

The guarantee against double jeopardy not only protects a person against twice being convicted, but also against twice being put to trial for the same offense. Price v. Georgia, 398 U.S. 323, 26 L.Ed. 2d 300, 90 S.Ct. 1757 (1970). This focus on the risk of conviction “assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. ” Abney v. United States, 431 U.S. 651, 661, 52 L.Ed. 2d 651, 661, 97 S.Ct. 2034, 2041 (1977) (emphasis supplied); see also Green v. United States, 355 U.S. 184, 2 L.Ed. 2d 199, 78 S.Ct. 221 (1957).

Obviously, these aspects of the guarantee’s protections would be lost if the accused were forced to “run the gauntlet” a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he still has been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs. (Emphasis original) (footnote omitted).

Abney, supra at 662, 52 L.Ed. 2d at 661-662, 97 S.Ct. at 2041. Therefore, the Supreme Court held that defendants had a right of immediate appeal from an order denying their motion to dismiss for former jeopardy.

The majority correctly points out that the “right of appeal” as defined in Abney is entirely statutory, and that the statute considered in Abney was the federal, not the North Carolina, jurisdictional statute. However, North Carolina also provides a statutory right of direct appeal, G.S. 7A-27, and there is no difference, other than the terminology used, between a “final decision” under the federal statute, 28 U.S.C. § 1291, and a “final judgment” under G.S. 7A-27(b). The constitutional principles of Abney are, in my opinion, therefore, equally applicable to North Carolina law.

By requiring defendant to wait the outcome of the second trial to obtain full appellate review, this Court focuses improperly on the State’s securing of the subsequent conviction. Defendant first must “run the gauntlet” again to raise the question of the correctness of the order denying his motion to dismiss. Regardless of the outcome of the second trial, defendant has been subjected to the trial itself; an important right protected by a meritorious double jeopardy defense is thus irretrievably lost. The holding in the companion case that defendant must be discharged because his claim is in fact meritorious cannot remedy this loss. See State v. Andrew Lynn Jones, 67 N.C. App. 377, 313 S.E. 2d 808 (1984).

Furthermore, the majority holds that being subjected to a rehearing or retrial does not “affect a substantial right,” when the very right “affected” is the right not to be subjected to a rehearing or retrial, a right guaranteed by our constitutions. They rely only on civil cases for this Kafkaesque proposition. In Oestreicher v. Stores, 290 N.C. 118, 225 S.E. 2d 797 (1976), it was held that the possibility of a second trial on a contract damages claim involved a “substantial right.” It strains credulity and ignores fundamental constitutional guarantees to imply, as the majority does, that the virtual certainty of a second trial on charges of first degree murder involves a less substantial right.

The majority also holds that the availability of the prerogative writs provides sufficient opportunity for review. See G.S. 7A-32. The appellate files in this very case clearly demonstrate the fallacy of this argument. Nothing in them indicates that the appellate courts considered the merits of defendant’s various petitions, despite clear evidence of patently arbitrary judicial action. See Supreme Court File No. 221P83, Court of Appeals File Nos. 83SC426PS and 83SC427P.

Statutorily created finality requirements should, if possible, be construed so as not to cause crucial collateral claims, such as meritorious former jeopardy claims, to be lost, and potentially irreparable injuries to be suffered. Mathews v. Eldridge, 424 U.S. 319, 331 n. 11, 47 L.Ed. 2d 18, 31 n. 11, 96 S.Ct. 893, 901 n. 11 (1976). Therefore, I would hold that an order denying a motion to dismiss for former jeopardy is a “final judgment” within the meaning of G.S. 7A-27(b) and immediately appealable.

The prosecutor in this case, as in Abney, supra, raised the specter of dilatory appeals as a justification for strict construction of the rule against interlocutory appeals. As noted in Abney, however, it is well within the supervisory power of the appellate division to establish summary procedures and calendars to weed out frivolous appeals and ensure that non-frivolous appeals are expedited and limited solely to the issue of former jeopardy. Id. at 662 n. 8, 52 L.Ed. 2d at 662 n. 8, 97 S.Ct. at 2042 n. 8; see N.C. Const. Art. IV, § 13(2); G.S. 7A-33.

Finally, it should be noted that interlocutory orders in criminal cases have been held appealable in at least one case as a matter of North Carolina law. State v. Bryant, 280 N.C. 407, 185 S.E. 2d 854 (1972).