State v. Robinson

IN THE SUPREME COURT OF NORTH CAROLINA
No. 411A94-6
Filed 14 August 2020
STATE OF NORTH CAROLINA
v.
MARCUS REYMOND ROBINSON
On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review an order
denying defendant’s motion for appropriate relief filed pursuant to the Racial Justice
Act entered on 25 January 2017 by Judge W. Erwin Spainhour in Superior Court,
Cumberland County. Heard in the Supreme Court on 26 August 2019.
Joshua H. Stein, Attorney General, by Danielle Marquis Elder, Senior Deputy
Attorney General, and Jonathan P. Babb, Special Deputy Attorney General,
for the State-appellee.
Cassandra Stubbs, Donald Beskind, David Weiss, and Brian Stull for
defendant-appellant.
James E. Coleman Jr. for Charles Becton, Charles Daye, Valerie Johnson,
Irving L. Joyner, Floyd B. McKissick Jr., Cressie H. Thigpen Jr., and Fred J.
Williams, amici curiae.
Jeremy M. Falcone, Paul F. Khoury, Robert L. Walker, and Madeline J. Cohen
for Former State and Federal Prosecutors, amicus curiae.
Carlos E. Mahoney, Jin Hee Lee, and W. Kerrel Murray for NAACP Legal
Defense and Educational Fund, Inc., amicus curiae.
Janet Moore for National Association for Public Defense, amicus curiae.
James E. Williams Jr., Burton Craige, and Bidish Sarma for North Carolina
Advocates for Justice, amicus curiae.
Grady Jessup for North Carolina Association of Black Lawyers, amicus
curiae.
STATE V. ROBINSON
Opinion of the Court
Cynthia F. Adcock for North Carolina Council of Churches, amicus curiae.
Lisa A. Bakale-Wise and Irving Joyner for North Carolina State Conference of
the NAACP, amicus curiae.
Professors Robert P. Mosteller & John Charles Boger, amicus curiae.
Robert P. Mosteller for Retired Members of the North Carolina Judiciary,
amicus curiae.
Joseph Blocher for Social Scientists, amicus curiae.
BEASLEY, Chief Justice.
On 6 August 2009 the North Carolina General Assembly, recognizing the
egregious legacy of the racially discriminatory application of the death penalty in this
state, enacted the Racial Justice Act (the RJA or the Act). The goal of this historic
legislation was simple: to abolish racial discrimination from capital sentencing. That
is, to ensure that no person in this state is put to death because of the color of their
skin.
Once implemented, the RJA worked as intended. Immediately, proceedings
initiated pursuant to the Act revealed pervasive racial bias in capital sentencing in
North Carolina. For defendant Marcus Reymond Robinson, the first condemned
inmate to have a hearing pursuant to the RJA, the trial court found that he
successfully proved that racial discrimination infected his trial and sentencing.
After Robinson proved his entitlement to relief under the RJA, the
General Assembly amended the statute to increase the burden of proof, thereby
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Opinion of the Court
making it more difficult for claimants to prove racial bias and obtain relief.
Nonetheless, the trial court held that the next three claimants met the higher
standard and demonstrated that racial bias had infected their capital proceedings as
well.
With 100% of claimants successfully proving their entitlement to relief and
with more than 100 additional RJA claims filed, the vast majority of death row
inmates were on the precipice of an opportunity to individually demonstrate that the
proceedings in which they were sentenced to death were fundamentally flawed by
racial animus. Rather than allowing these proceedings to follow their course, the
General Assembly repealed the Act. The repeal was made retroactive: Robinson and
the three other defendants who had already proven that their capital sentences were
based on racially biased proceedings were returned to death row to await execution.
Today, we are not asked to pass on the wisdom of repealing a statutory
mechanism for rooting out the insidious vestiges of racism in the implementation of
our state’s most extreme punishment. 1 That decision is for the General Assembly.
Instead, this Court must decide whether the North Carolina Constitution allows for
that repeal to be retroactive. We hold that it does not.
I.
Nor are we asked to review the underlying facts of Robinson’s offenses and his
1
ultimate conviction of first-degree murder. Given the nature of the appeal before this Court,
this Court’s ruling on Robinson’s claim under the Racial Justice Act does not negate or
diminish his criminal culpability.
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Opinion of the Court
The Racial Justice Act prohibited capital punishment if race was a significant
factor in the decision to seek or impose the death penalty. North Carolina Racial
Justice Act, S.L. 2009-464, § 1, 2009 N.C. Sess. Laws 1213, 1214 [hereinafter Original
RJA] (codified at N.C.G.S. §§ 15A-2010, -2011 (2009)) (repealed 2013). Defendants
could use statistical evidence to meet their evidentiary burden and show that race
was a significant factor in the county, the prosecutorial district, the judicial division,
or the state at the time their sentence was imposed. Id., § 1, 2009 N.C. Sess. Laws at
1214.
Defendants could show that race was a significant factor by demonstrating
evidence of one or more of the following: that death sentences were sought or imposed
significantly more frequently upon persons of one race; that death sentences were
sought or imposed more frequently based on the race of the victim; or that race was
a significant factor in decisions to exercise peremptory strikes during jury selection.
Id. The State could offer rebuttal evidence, including its own statistical evidence. Id.
If race was found to be a significant factor, defendants were legally ineligible to
receive the death penalty; instead, they were sentenced to life imprisonment without
the possibility of parole. Id.
The RJA was legislation unique to this state, most notably in its allowance of
statistical evidence to prove racial discrimination. The Supreme Court of the United
States has previously rejected the use of statewide statistical evidence in
constitutional challenges to Georgia’s death penalty scheme, finding that state
legislatures “are better qualified to weigh and ‘evaluate the results of statistical
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Opinion of the Court
studies in terms of their own local conditions.’ ” McCleskey v. Kemp, 481 U.S. 279,
319, 107 S. Ct. 1756, 1781 (1987) (quoting Gregg v. Georgia, 428 U.S. 153, 186, 96 S.
Ct. 2909, 2931 (1976)). The General Assembly, however, recognized the difficulty of
proving systemic discrimination absent statistical evidence. During the debates over
the Act in the North Carolina Senate, Senator Doug Berger explained why the use of
statistics was necessary, arguing that “[r]ace discrimination is very hard to prove.
Rarely, particularly in today’s time, do people just outright say, ‘I am doing this
because of the color of your skin.’ ” 2
The RJA was the first law in the country to allow for a finding of racial
discrimination during jury selection without requiring proof of intentional
discrimination. The ability to serve on a jury is one of the many ways African-
Americans have struggled to participate in our democratic processes. An
understanding of the history and evolution of racial discrimination is necessary in
order to understand why the RJA was passed. After the Civil War, the Supreme Court
of the United States barred statutes that excluded African-Americans from serving
as jurors. Strauder v. West Virginia, 100 U.S. 303 (1879). Recognizing that “[t]he very
idea of a jury is a body of men composed of the peers or equals of the person whose
rights it is selected or summoned to determine,” the Supreme Court held that the
Equal Protection Clause barred the exclusion of jurors based on their race. Id. at 308.
2 Sen. Doug Berger, Floor Debate on Racial Justice Act (May14,
2009), https://archive.org/details/NorthCarolinaSenateAudioRecordings20090514/North_Ca
rolina_Senate_Audio_Recordings_20090514.mp3
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Opinion of the Court
Discrimination still occurred in practice as local jurisdictions excluded African-
Americans from being in jury venires, preventing them from being in the jury pool.
The Supreme Court of the United States addressed this newest form of
discrimination by prohibiting “any action of a state, whether through its legislature,
through its courts, or through its executive or administrative officers” that led to the
exclusion of African-American jurors. Carter v. Texas, 177 U.S. 442, 447, 20 S. Ct.
687, 689 (1900); see also State v. Peoples, 131 N.C. 784, 790, 42 S.E. 814, 816 (1902)
(“How can the forcing of [an African-American defendant] to submit to a criminal trial
by a jury drawn from a list from which has been excluded the whole of his race, purely
and simply because of color . . . be defended? Is not such a proceeding a denial to him
of equal legal protection? There can be but one answer, and that is that it is an
unlawful discrimination.”).
Following these decisions, neither statutes nor local practices could legally
exclude African-Americans from jury service. After the Civil War and Reconstruction,
however, racism and legal segregation remained rampant in North Carolina and
across the South. Facially race-neutral statutes, such as poll taxes and literacy tests,
and the “separate but equal” fallacy were instituted to legally discriminate against
African-Americans. In the early 1900s, African-Americans were excluded from jury
service in North Carolina through laws requiring that jurors: (1) had paid taxes the
preceding year; (2) were of good moral character; and (3) possessed sufficient
intelligence. See Peoples, 131 N.C. at 788, 42 S.E. at 815; Benno C. Schmidt Jr.,
Juries, Jurisdiction and Race Discrimination: The Lost Promise of Strauder v. West
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Opinion of the Court
Virginia, 61 Tex. L. Rev. 1401, 1406 (1983) (“The problem of jury discrimination
encompasses the half-century from the end of Reconstruction to the New Deal, during
which the systematic exclusion of [B]lack men from Southern juries was about as
plain as any legal discrimination could be short of proclamation in state statutes or
confession by state officials.”)
The same racially oppressive beliefs that fueled segregation manifested
themselves through public lynchings, the disproportionate application of the death
penalty against African-American defendants, and the exclusion of African-
Americans from juries. Given the racially oppressive practices and beliefs that
permeated every level of American society during the Jim Crow era, the
constitutionally protected right of African-American defendants to be tried by a jury
of their peers became increasingly important. The Supreme Court of the United
States recognized that facially neutral statutes could violate the Fourteenth
Amendment because “equal protection to all must be given—not merely promised.”
Smith v. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 165 (1940). The Supreme Court
recognized that putting the fate of African-American defendants in the hands of all-
white juries contradicted “our basic concepts of a democratic society and a
representative government.” Id.As progress was made toward ensuring equal representation in juries,
discrimination shifted from the composition of the venire to the composition of the
jury itself. Peremptory challenges became the next tool for limiting African-
Americans from serving as jurors because there were previously no African-American
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Opinion of the Court
jurors on the jury panel against whom peremptory challenges could be used. In North
Carolina, the number of authorized peremptory challenges increased from six to
fourteen during this period. 3
In 1986 the Supreme Court of the United Sates recognized the persistent
impact of racial discrimination and the exclusion of jurors of color during jury
selection and established a three-part test to challenge discriminatory peremptory
challenges. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). Although the
Supreme Court’s ruling in Batson and subsequent decisions sought to eliminate
discrimination through the use of peremptory challenges, this Court has never held
that a prosecutor intentionally discriminated against a juror of color. 4 The RJA was
the General Assembly’s recognition of Batson’s ineffectiveness in this state.
II.
Robinson was convicted of first-degree murder and sentenced to death in 1994
in Superior Court, Cumberland County. On direct appeal, this Court found no error
3 See An Act to Amend the Laws Relating to Criminal Procedure, ch. 711, § 1, 1977
N.C. Sess. Laws 711; An Act to Amend G.S. 9-21(b) to Increase from Six to Nine the
Peremptory Challenges Allowed the State in Capital Cases, 1971 N.C. Sess. Laws 56.
4 The North Carolina Court of Appeals has held that there was a Batson violation in
only one case, where the prosecutor failed to offer any explanation for using peremptory
challenges to strike two jurors. State v. Wright, 189 N.C. App. 346, 352–54, 658 S.E.2d 60,
64–65 (2008)). In two cases, the Court of Appeals held that the defendant had met their prima
facie showing, but the underlying Batson challenge was unsuccessful upon remand. See State
v. McCord, 158 N.C. App. 693, 696–99, 582 S.E.2d 33, 35–37 (2003); State v. Sessoms, 119
N.C. App. 1, 4–7, 458 S.E.2d 200, 202–04 (1995). The only “successful” Batson challenges
have involved challenges alleging African-American defendants discriminated against white
jurors. See State v. Hurd, 246 N.C. App. 281, 294, 784 S.E.2d 528, 537 (2016); State v. Cofield,
129 N.C. App. 268, 277–80, 498 S.E.2d 823, 830–32 (1998).
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Opinion of the Court
in his conviction and death sentence. State v. Robinson, 342 N.C. 74, 463 S.E.2d 218(1995), cert. denied, 517 U.S. 1197 (1996). Robinson’s claims for post-conviction relief
were denied in state and federal court. State v. Robinson, 350 N.C. 847, 539 S.E.2d
646 (1999); Robinson v. Polk, 444 F.3d 225 (4th Cir. 2006), cert. denied 549 U.S. 1003(2006). Robinson’s claims under the RJA do not negate or diminish his guilt or the
impact of his crimes on the victim’s family, the victim’s friends, and the community.
Rather, the Act ensured that even those who commit the most serious offenses are
entitled to a trial and sentencing free from racial discrimination.
Robinson filed a timely Motion for Appropriate Relief pursuant to the RJA on
6 August 2010. His hearing was scheduled thirteen months later on 6 September
2011. The State requested and the trial court granted a continuance of the hearing
for an additional four months but later denied the State’s third motion to continue on
30 January 2012. Robinson’s hearing, which lasted thirteen days, involved testimony
by seven expert witnesses and the introduction of over 170 exhibits.
Robinson’s claim under the RJA relied heavily on a study of jury selection
conducted by researchers at Michigan State University College of Law. Catherine M.
Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of
Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L.
Rev. 1531 (2012) [hereinafter MSU Study]. The MSU Study examined jury selection
in at least one proceeding for every inmate on death row in North Carolina as of 1
July 2010. This comprehensive study found that overall, African-American jurors
were 2.26 times more likely than all other jurors to be struck by the State. The State
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Opinion of the Court
struck 52.6% of eligible African-American venire members, while only striking 25.7%
of all other eligible venire members. The researchers also performed a fully-controlled
regression analysis, controlling for non-race factors that could potentially have
caused the juror to be struck. Even after taking into account all of these other factors,
the results remained the same―African-American jurors were more than two times
as likely to be struck as all other jurors. The MSU Study also showed similar
disproportionate disparities in the county and judicial district of Robinson’s trial. 5 In
stark contrast to these findings, this Court has never ruled that the State
intentionally discriminated against a juror of color in violation of Batson. Daniel R.
Pollitt & Brittany P. Warren, Thirty Years of Disappointment: North Carolina’s
Remarkable Appellate Batson Record, 94 N.C. L. Rev. 1957, 1961―62 (2016). 6
In support of the findings from the MSU Study, Robinson also presented
evidence obtained through discovery. After introducing evidence that prosecutors
across North Carolina attended a “Top Gun” training, which taught them how to
articulate facially race-neutral reasons for striking African-American jurors,
Robinson presented transcripts from a capital case in Cumberland County in which
5 In Cumberland County, African-American jurors were struck at a rate of 52.7%
compared to 20.5% for all other jurors. Cumberland County was a part of Second Judicial
District from 1990 to 1999. In that district, African-American jurors were struck at a rate of
51.5%, compared to 25.1% for all other jurors. From 2000 to 2010 in the current Superior
Court Division 4, African-American jurors were struck at a rate of 62.4%, compared to 21.9%
for all other jurors.
6 This Court recently published two Batson decisions, State v. Hobbs, 374 N.C. 345,
841 S.E.2d 492 (2020) and State v. Bennett, 843 S.E.2d 222 (2020). Although this Court
ultimately remanded both matters for a new Batson hearing, we did not find that the State
intentionally discriminated against a juror in violation of Batson.
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the prosecutor used those exact reasons to justify striking an African-American juror.
The trial court noted that “[i]nstead of training on how to comply with Batson v.
Kentucky, and its mandate to stop discrimination in jury selection, North Carolina
prosecutors received training in 1995 and 2011 about how to circumvent Batson.”
Robinson also obtained hand-written notes made by a prosecutor during jury
selection in another Cumberland County capital case. These notes showed that an
African-American juror with a criminal history was called a “thug,” while a white
juror with a criminal record was a “fine guy.” An African-American juror was a “blk
wino,” while a white juror with a conviction for driving while impaired was a “country
boy—ok.”
Robinson also presented expert testimony about the role of implicit bias during
jury selection. Robinson’s experts testified about how race can influence decision-
making at a subconscious level. One of Robinson’s experts, Dr. Samuel Sommers,
explained how “race often has an effect on judgments that we don’t articulate when
we are asked about those judgments.” Rather than seeking to understand the role of
implicit bias in their decision-making, prosecutors attended training to ensure that
their race-based reasons for excluding jurors would not be subject to judicial scrutiny.
Robinson presented specific instances across the state where the race-neutral
explanations given by prosecutors were pretextual or overtly based on race. Robinson
presented evidence that an African-American juror was struck from the jury because
of his membership in a historic African-American civil rights organization, the
NAACP, and that another juror was struck from the jury because she graduated from
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Opinion of the Court
a historically black college and university, North Carolina A&T State University.
Robinson further showed how African-American jurors were struck after being asked
explicitly race-based questions, such as whether an African-American juror would be
the “subject of criticism” by their “black friends” if they were to return a verdict of
guilty. In multiple cases, prosecutors targeted African-American jurors by asking the
jurors different questions than other jurors, such as whether their child’s father was
paying child support. African-American jurors were also struck for patently irrational
reasons, such as membership in the armed forces. Robinson also showed more than
thirty examples of prosecutors striking African-American jurors for objectionable
characteristics yet passing on other similarly situated jurors.
The trial court, in its meticulously detailed findings, laid out how Robinson had
shown that race was a significant factor during jury selection in his case. The trial
court concluded that race was a significant factor in the decisions of prosecutors to
exercise peremptory challenges to strike African-American jurors in Cumberland
County, the former Second Judicial District, and the State of North Carolina as a
whole from 1990 to 2010 and resentenced Robinson to life imprisonment without the
possibility of parole.
Following Robinson’s hearing, the General Assembly amended the RJA,
limiting the scope of statistical evidence for future hearings. An Act to Amend Death
Penalty Procedures, S.L. 2012-136, §§ 1–10, 2012 N.C. Sess. Laws 471 [hereinafter
Amended RJA] (repealed 2013). The Amended RJA also included a provision that
applied the amendment to any trial court orders vacated or overturned upon
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Opinion of the Court
appellate review, which could only apply to Robinson’s case. Amended RJA,
S.L. 2012-136, § 8, 2012 N.C. Sess. Laws at 473. After the overwhelming statistical
evidence of systemic racial discrimination presented by Robinson, the General
Assembly limited the use of that evidence in future proceedings.
On 1 October 2012, an evidentiary hearing under the Amended RJA was held
for three additional defendants: Christina Walters, Quintel Augustine, and Tilmon
Golphin. On 13 December 2012, the trial court entered an order granting relief for
the three defendants after finding that they had established race as a significant
factor in the State’s use of peremptory challenges during jury selection.
After Robinson, Walters, Augustine, and Golphin showed that their death
sentences were sought or imposed on the basis of race, the General Assembly repealed
the RJA. Act of June 13, 2013, S.L. 2013-154, § 5.(a), 2013 N.C. Sess. Laws 368,
372 [hereinafter RJA Repeal]. The RJA Repeal was signed by the Governor on
19 June 2013. The repeal was retroactive and voided all pending motions for
appropriate relief. Id., 5.(d), 2013 N.C. Sess. Laws at 372. However, the RJA Repeal
did not apply to a trial court order resentencing a defendant to life imprisonment
without parole if that order is affirmed upon appellate review. Id.
The State petitioned this Court for a writ of certiorari, which this Court
allowed on 11 April 2013, arguing that the trial court had abused its discretion by
failing to grant the State’s third motion to continue. We agreed and vacated the trial
court’s order granting Robinson’s motion for appropriate relief without addressing
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Opinion of the Court
the merits of the underlying claim or the constitutional and statutory challenges to
the RJA. State v. Robinson, 368 N.C. 596, 597, 780 S.E.2d 151, 152 (2015). 7
A joint hearing was held in the Superior Court, Cumberland County, on
29 November 2016 on the motions for appropriate relief filed by Robinson, Walters,
Augustine, and Golphin. The sole question considered by the trial court was whether
the defendants’ claims were rendered void by the RJA Repeal. The trial court found
that the defendants’ rights had not vested and that the RJA Repeal was not an ex
post facto law, but the trial court did not reach the defendants’ claims that the RJA
Repeal violated the double jeopardy protections of the state and federal constitutions.
The trial court erred by failing to consider Robinson’s constitutional arguments. As
discussed in Section III of this opinion, a proper analysis of Robinson’s double
jeopardy protections focuses on whether the trial court’s order granting relief under
the RJA constituted an acquittal of the death penalty. Because such an acquittal
would categorically bar reimposition of the death penalty, it is a threshold matter to
be addressed prior to any inquiries into the effect of legislation enacted subsequent
to the acquittal. The trial court concluded that the RJA Repeal retroactively voided
the defendants’ claims and dismissed each of the defendants’ motions for appropriate
relief.
This Court also vacated the orders granting relief to Walters, Augustine, and
7
Golphin, finding that the trial court erred by joining the cases for an evidentiary hearing and
that the error recognized in State v. Robinson, 368 N.C. 596, 780 S.E.2d 151 (2015), infected
the trial court’s decision. State v. Augustine, 368 N.C. 594, 594, 780 S.E.2d 552, 552 (2015).
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Opinion of the Court
Robinson filed a Petition for Writ of Certiorari on 30 May 2017, asking this
Court to consider whether the retroactive application of the RJA Repeal violates the
double jeopardy protections enshrined in our state constitution. We allowed the
petition on 1 March 2018, and today we hold that the retroactivity provision
constitutes such a violation. 8
III.
Robinson argues that the RJA Repeal’s retroactive application to those who
previously received a sentence of life imprisonment without the possibility of parole
after a hearing under the RJA violates the constitutional prohibition against double
jeopardy. We agree. Once Robinson’s death sentence was vacated under the RJA,
Article I, Section 19 of the North Carolina Constitution barred the reinstatement of
his capital sentence.
The prohibition against double jeopardy is a “fundamental and sacred principle
of the common law, deeply imbedded in our criminal jurisprudence.” State v. Crocker,
239 N.C. 446, 449, 80 S.E.2d 243, 245 (1954). It is an integral part of the Law of the
Land clause, which guarantees that “[n]o person shall be taken, imprisoned, or
disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any
manner deprived of his life, liberty, or property, but by the law of the land.”
8 Robinson also argues that the retroactivity provision is (1) an ex post facto law; (2)
in violation of his vested rights; (3) a bill of attainder; (4) an arbitrary application of the death
penalty; and (5) in violation of the separation of powers. Because this Court holds that the
double jeopardy protections afforded under the North Carolina Constitution’s Law of the
Land Clause bar Robinson from being resentenced to death, we do not address Robinson’s
other constitutional arguments.
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N.C. Const. art. I, § 19; State v. Sanderson, 346 N.C. 669, 676, 488 S.E.2d 133,
136 (1997) (citing Crocker, 239 N.C. 446, 80 S.E.2d 243) (noting that the prohibition
against double jeopardy is embodied in the Law of the Land Clause of the
North Carolina Constitution). 9 This clause has appeared in every version of the
North Carolina Constitution. See N.C. Const. of 1776, Declaration of Rights, § 12;
N.C. Const. of 1886, art. I, § 17; N.C. Const. art. I, § 19.
A prohibition against double jeopardy was also included in the Bill of Rights of
the Constitution of the United States in 1791 and applies to the states through the
Fourteenth Amendment. U.S. Const. amend. V; Benton v. Maryland, 395 U.S. 784,
796, 89 S. Ct. 2056, 2063 (1969). Our Court held that incorporation “added nothing
to our law” because North Carolina’s prohibition against double jeopardy “has always
been an integral part of the law of North Carolina.” State v. Battle, 279 N.C. 484,
486, 183 S.E.2d 641, 643 (1971). North Carolina’s prohibition against double
jeopardy, found in our Law of the Land Clause, predates any protections afforded
under the Constitution of the United States. See Crocker, 239 N.C. at 449, 80 S.E.2d
at 245 (finding that double jeopardy protections are an integral part of the Law of the
Land Clause of our state constitution); State v. Prince, 63 N.C. 529, 531 (1869) (noting
that the prohibition against double jeopardy “is a sacred principle of the [English]
9 The Law of the Land Clause, which dates back to Chapter 39 of the Magna Carta,
originally appeared in Section 12 of the Declaration of Rights in 1776 and read “[t]hat no
freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or
outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property,
but by the law of the land.” See Magna Carta ch. 39 (1215); see also John V. Orth & Paul M.
Newby, The North Carolina State Constitution 68 (2d ed. 2013).
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common law”); State v. Garrigues, 2 N.C. 241, 242 (1795) (disallowing the retrial of a
defendant for the same offense after a hung jury).
In interpreting the double jeopardy protections of our state’s Law of the Land
Clause, we have often been guided by the decisions of the Supreme Court of the
United States. See Sanderson, 346 N.C. 669, 488 S.E.2d 133. However, “[q]uestions
concerning the proper construction and application of the North Carolina
Constitution can be answered with finality only by this Court.” State v. Jackson,
348 N.C. 644, 648, 503 S.E.2d 101, 103 (1998). This Court has “the responsibility to
protect the state constitutional rights of the citizens,” and this obligation “is as old as
the State.” Corum v. Univ. of N.C. Through Bd. of Governors, 330 N.C. 761, 783,
413 S.E.2d 276, 290 (1992). Thus, although we base our holding on the North Carolina
Constitution, we may treat as persuasive the Supreme Court of the United States’
reasoning regarding the double jeopardy protections afforded by the Constitution of
the United States; we do so in this case. See State ex rel. Martin v. Preston, 325 N.C.
438, 450, 385 S.E.2d 473, 479 (1989) (observing that although this Court is not bound
by the Supreme Court of the United States when interpreting state laws and our
constitution, the reasoning used may be persuasive); Bulova Watch Co., Inc. v. Brand
Distribs. of N. Wilkesboro, Inc., 285 N.C. 467, 474, 206 S.E.2d 141, 146 (1974) (noting
that “in the construction of the provision of the State Constitution, the meaning given
by the Supreme Court of the United States to even an identical term in the
Constitution of the United States is, though highly persuasive, not binding upon this
Court”).
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Opinion of the Court
Double jeopardy protections apply only if there has been some event, such as
an acquittal, that terminates the original jeopardy. Richardson v. United States,
468 U.S. 317, 325, 104 S. Ct. 3081, 3086 (1984). If jeopardy is terminated by an
acquittal, the State is barred from appealing any decision that might subject the
defendant to another trial for the same offense. See State v. Gardner, 315 N.C. 444,
451, 340 S.E.2d 701, 707 (1986). An acquittal is “any ruling that the prosecution’s
proof is insufficient to establish criminal liability for an offense.” Evans v. Michigan,
568 U.S. 313, 318, 133 S. Ct. 1069, 1074–75 (2013). The prohibition on review of
acquittals is one of the most fundamental rules in the history of double jeopardy.
United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349,
1354 (1977); see also Evans, 568 U.S. at 318, 133 S. Ct. at 1074; Fong Foo v. United
States, 369 U.S. 141, 143, 82 S. Ct. 671, 672 (1962); Green v. United States, 355 U.S.
184, 188, 78 S. Ct. 221, 224 (1957). Accordingly, acquittals are final and unreviewable,
even if based in error. Ball v. United States, 163 U.S. 662, 671, 16 S. Ct. 1192,
1195 (1896).
This is true even when the error made by the trial court is patent and
unambiguous. In Fong Foo, the trial court, sua sponte in the middle of trial, directed
the jury to acquit the defendant, which it did. Fong Foo, 369 U.S. at 141–42, 82 S. Ct.
at 671. As an explanation, the trial court alleged that the prosecutor had behaved
improperly and that the witnesses had been unconvincing. The Court of Appeals for
the First Circuit held that the trial court had no power to grant the mid-trial
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Opinion of the Court
acquittal, and it subsequently directed the trial court to vacate the judgment and
remanded the case for a new trial. Id. at 142, 82 S. Ct. at 671.
The Supreme Court of the United States reversed, holding that the case
“terminated with the entry of a final judgment of acquittal,” which “could not be
reviewed without putting (the petitioners) twice in jeopardy”—an act flatly prohibited
by the Fifth Amendment. Id. at 143, 82 S. Ct. at 672 (quoting Ball, 163 U.S. at 671,
16 S. Ct. at 1195). The Court acknowledged that it was reasonable to believe that the
acquittal should be set aside because it “was based upon an egregiously erroneous
foundation,” but to set it aside would, nevertheless, violate the constitution. Id. The
Supreme Court has “applied Fong Foo’s principle broadly.” Evans, 568 U.S. at 318,
133 S. Ct. at 1074.
An acquittal, whether granted by the jury, the trial court, or an appellate court,
is non-reviewable. See Arizona v. Rumsey, 467 U.S. 203, 210, 104 S. Ct. 2305,
2309 (1984) (noting that the fact the sentencer was the trial court rather than the
jury did not limit double jeopardy protections); Burks v. United States, 437 U.S. 1, 17,
98 S. Ct 2141, 2150 (1978) (stating that the “purposes of the [Double Jeopardy] Clause
would be negated” if double jeopardy did not prohibit retrial after an appellate court’s
finding of insufficient evidence); United States v. Morrison, 429 U.S. 1, 3, 97 S. Ct. 24,
26 (1976) (concluding that the trial court’s finding of guilt is equivalent to a jury
verdict of guilt for double jeopardy purposes).
Double jeopardy protections also extend to capital sentencing proceedings.
Sanderson, 346 N.C. at 676, 488 S.E.2d at 136. Unlike other sentencing proceedings
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Opinion of the Court
when the sentencer has “unbound discretion to select an appropriate punishment
from a wide range” and the prosecutor “simply recommend[s] what [he or she
believes] to be an appropriate punishment,” capital sentencing proceedings bear “the
hallmarks of the trial on guilt or innocence.” Bullington v. Missouri, 451 U.S. 430,
438–39, 101 S. Ct. 1852, 1858 (1981). Those proceedings present the sentencer with
a choice between two alternatives, provide statutory standards to guide their
decision-making, and require the prosecutor to prove certain additional facts in order
to justify a particular sentence. Id.In capital sentencing proceedings, a defendant is acquitted of the death penalty
for purposes of double jeopardy when a life sentence is imposed after a finding that
the State’s evidence was insufficient to prove the existence of a single aggravating
circumstance. Rumsey, 476 U.S. at 211, 104 S. Ct. at 2310. A life sentence “based on
findings sufficient to establish legal entitlement to the life sentence[ ] amounts to an
acquittal on the merits.” Id. Therefore, the relevant inquiry to determine whether
imposition of a life sentence was an acquittal for purposes of double jeopardy is
“whether the sentencing judge or the reviewing court has ‘decid[ed] that the
prosecution has not proved its case’ for the death penalty.” Poland v. Arizona,
476 U.S. 147, 154, 106 S. Ct. 1749, 1754 (1986) (alteration in original) (quoting
Bullington, 451 U.S. at 443, 101 S. Ct. at 1860).
Our jurisprudence confirms that this is the proper inquiry. In Sanderson, we
clarified that double jeopardy protections do not attach to each and every aggravating
circumstance not sufficiently proved by the State, but rather attach in whole when
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Opinion of the Court
the State has failed to prove the existence of any aggravating circumstance.
Sanderson, 346 N.C. at 679, 488 S.E.2d at 138. This is because in the capital
sentencing phase the State’s burden is not to prove the existence of every aggravating
circumstance—akin to proving every essential element of a crime—but to prove the
existence of at least one. N.C.G.S. § 15A-2000(c)(1) (2019). If the State fails to prove
the existence of at least one aggravating circumstance, then the defendant is
acquitted of the death penalty, jeopardy terminates, and the State may not seek to
reimpose capital punishment. Id.
A defendant is acquitted of the charges against him when the State fails to
carry its burden to prove the essential elements of an offense. Evans, 568 U.S. at 318,
133 S. Ct. at 1074–75. He may also be acquitted when the State proves every
essential element of the crime, but the defendant successfully proves the existence of
an excuse or justification in the form of an affirmative defense that negates his
criminal liability.
In Burks, the defendant’s principal defense at trial was the affirmative defense
of insanity. Burks, 437 U.S. at 2, 98 S. Ct. at 2143. On appeal, he admitted that the
State had proven the necessary elements to convict him of the offense but argued that
the State had not presented sufficient evidence to overcome his affirmative defense.
Id. at 3, 98 S. Ct. at 2413. The Court of Appeals for the Sixth Circuit agreed, finding
insufficient evidence that the State had “effectively rebu[tted]” the testimony of the
defendant’s three expert witnesses regarding his affirmative defense. Id. at 4,
98 S. Ct. at 2143. The defendant’s judgment was vacated, and the case was remanded
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Opinion of the Court
so the trial court could determine whether he should receive a directed verdict or a
new trial. Id. Defendant appealed, arguing that the appellate court’s ruling
constituted an acquittal, regardless of whether it was entered before or after the
verdict. Id. at 5, 98 S. Ct. at 2144. The Supreme Court of the United States agreed
and held that “the Double Jeopardy Clause precludes a second trial once the
reviewing court has found the evidence legally insufficient.” Id. at 18, 98 S. Ct.
at 2150–51.
The same principles apply here because claims for relief under the RJA were
similar in kind to an affirmative defense. Though the State carried its burden at trial
by proving the existence of at least one aggravating circumstance, the Act allowed
Robinson to be acquitted of the death penalty by presenting evidence that racial
discrimination infected his trial and capital sentencing proceedings. The Act provided
the State an opportunity to present rebuttal evidence, but the trial court found the
State’s rebuttal evidence to be insufficient. Just as in Burks, the fact that this
“acquittal” was made by a reviewing court after the original trial in Robinson’s case
does not negate or limit his double jeopardy protections.
Once the trial court found that Robinson had proven all of the essential
elements under the RJA to bar the imposition of the death penalty, he was acquitted
of that capital sentence, jeopardy terminated, and any attempt by the State to
reimpose the death penalty would be a violation of our state’s constitution.
We conclude that the trial court’s order resentencing Robinson to life in prison
was an acquittal for purposes of double jeopardy. The sentence was imposed after a
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Opinion of the Court
hearing bearing “the hallmarks of the trial on guilt or innocence” and was based on
findings sufficient to establish that Robinson was legally entitled to the imposition of
a life sentence. See Bullington, 451 U.S. at 438–39, 101 S. Ct. at 1858. In finding that
Robinson had proven his entitlement to relief under the RJA, the trial court acquitted
him of the death penalty.
The RJA required the trial court to determine whether Robinson had proven
his claim that his sentence of death was sought or imposed on the basis of his race.
The Act established both the type and scope of evidence that Robinson could use to
meet his burden. Original RJA, § 1, 2009 N.C. Sess. Laws at 1214. The trial court’s
order included findings of fact that established, in great detail, that Robinson had
presented sufficient evidence to establish that race played a significant factor in the
State’s decision to seek or impose the death penalty and that his sentence was
obtained on the basis of race. The trial court’s order also included findings of fact
establishing that the State had not offered evidence sufficient to rebut this
determination. These findings established that Robinson was legally entitled to a life
sentence under the Act. Therefore, the trial court did not merely impose a life
sentence, it acquitted Robinson of the death penalty based on findings he was legally
entitled to receive a life sentence under the Act.
Death penalty acquittals receive double jeopardy protection because of “both
the trial-like proceedings at issue and the severity of the penalty at stake.” Monge v.
California, 524 U.S. 721, 733, 118 S. Ct. 2246, 2253 (1998) (emphasis omitted). The
death penalty is the most serious punishment the state can impose, and the interests
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Opinion of the Court
protected by our Law of the Land Clause are consequently at their zenith. This Court
has previously recognized that “the State with all its resources and power should not
be allowed to make repeated attempts to convict an individual.” State v. Courtney,
372 N.C. 458, 462, 831 S.E.2d 260, 264 (2019) (quoting Green v. United States,
355 U.S. 184, 187–88, 78 S. Ct. 221, 223 (1957)). To allow it to do so creates an
“unacceptably high risk that the [State], with its superior resources, [will] wear down
a defendant.” Bullington, 451 U.S. at 445, 101 S. Ct. at 1861. The State must also not
be allowed to use its superior resources and power to make repeated attempts to have
a defendant sentenced to death, especially after that defendant has followed the
procedures created by the state, has proven all that was required to be proved, and
has been awarded relief under the statutory scheme designed by the state. 10
The General Assembly passed legislation barring death sentences obtained on
the basis of race. Robinson filed a timely motion for appropriate relief and presented
10 Justice Ervin’s dissenting opinion argues that Robinson is entitled to a new hearing, based
on this Court’s decision in State v. Ramseur, but it fails to recognize the significance of subjecting
Robinson to an additional RJA hearing in its double jeopardy analysis. Citing to the case of United
States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013 (1975), the dissent argues that double jeopardy
considerations do not prevent the government’s ability to appeal an acquittal because reversal would
simply reinstate the original verdict. However, if this matter were remanded for an additional hearing,
the trial court would not be able to merely reinstate the original verdict. Instead, it would conduct a
full RJA hearing, subjecting Robinson to an additional RJA proceeding. In the case of Rumsey, the
Supreme Court expressly rejected the applicability of Wilson in the context of capital sentencing
proceedings. Rumsey, 467 U.S. at 211, 104 S. Ct. at 2310. It reasoned that double jeopardy was not
implicated in Wilson because, on remand, the trial court would “simply order the jury’s guilty verdict
reinstated” and the defendant would not be subjected to a second trial. Id. at 211-212, 104 S. Ct. at
2310. The Supreme Court noted that that if it were to remand the matter, the trial court would hold
an additional capital sentencing hearing and would not merely reinstate the original verdict. Id. at
212, 104 S. Ct. at 2310.
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STATE V. ROBINSON
Opinion of the Court
sufficient evidence to show that he was entitled to a sentence of life imprisonment
without parole. The State failed to present sufficient rebuttal evidence. After
Robinson was granted relief, the General Assembly limited the use of the very
statistical evidence that he had relied upon. After Walters, Augustine, and Golphin
also showed that their sentences were sought or obtained on the basis of race, the
General Assembly repealed the legislation altogether. The State is not only seeking
another attempt at imposing a death sentence, it is seeking another attempt after
having created a process which provided relief upon a showing of racial
discrimination. If our constitution does not permit the State to use its power and
resources over and over to obtain a conviction or impose the death penalty, it certainly
does not allow the state to use that same power and resources to eliminate the remedy
after a defendant has successfully proven his entitlement to that relief.
Double jeopardy protections provide certainty for defendants so that once
acquitted of the death penalty, they have finality such that they may not later be
resentenced to death. It also provides that same closure to the families of victims so
that they are not asked to endure additional legal proceedings, never sure whether
the current proceeding will, in fact, be the last. Additional proceedings beyond the
hearing on Robinson’s motion for appropriate relief would fail to protect either
interest.
The Law of the Land Clause and the protections it affords against double
jeopardy are older than this state. Those protections exist to protect defendants
against the abuse of the State’s virtually unlimited power to pursue prosecutions and
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Opinion of the Court
the interests that they protect—a defendant’s very life and liberty—are the
weightiest interests that our state and federal constitutions serve to protect. We hold
that the State is barred from reimposing a death sentence under Article I, Section 19
of our state constitution, and Robinson’s sentence of life imprisonment without the
possibility of parole must be reinstated. 11
IV.
A valid judgment of a competent court is “the real and only authority for the
lawful imprisonment of a person who pleads or is found guilty of a criminal offense.”
In re Swink, 243 N.C. 86, 90, 89 S.E.2d 792, 795 (1955). A judgment is final when
there is no statutory basis for appeal and no petition for writ of certiorari has been
filed. State v. Green, 350 N.C. 400, 408, 514 S.E.2d 724, 729 (1999).
The North Carolina Rules of Appellate Procedure allow for review of judgments
and orders through a writ of certiorari, but review of a judgment or an order must be
sought by the party seeking review. N.C. R. App. P. 21(a)(1). The distinction between
11 We briefly address the impact of this Court’s 18 December 2015 order vacating the
trial court’s order resentencing Robinson. The State filed a petition for writ of certiorari,
which this Court allowed, asking this Court to review whether the trial court erred in: (1) its
interpretation of the Racial Justice Act; (2) its findings of fact and conclusions of law; and (3)
its failure to grant the State’s third motion to continue. This Court ultimately determined
that the trial court “abused its discretion by denying petitioner’s third motion for a
continuance” and remanded the matter for “reconsideration of respondent’s motion for
appropriate relief.” State v. Robinson, 368 N.C. 596, 596–97, 780 S.E.2d 151, 151–52 (2015).
We issued a similar order in the cases of Walters, Augustine, and Golphin. See State v.
Augustine, 368 N.C. 594, 780 S.E.2d 552 (2015). Having now determined that defendant was
acquitted of the death penalty under the Racial Justice Act, we conclude that any error by
the trial court did not alter the essential character of the acquittal and our previous order
does not impact our ultimate conclusion that Section 1, Article 19 of the North Carolina
Constitution bars the reinstatement of defendant’s capital sentence.
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STATE V. ROBINSON
Opinion of the Court
seeking review of a judgment and seeking review of an order is also present in Rule 4,
which governs appeals in criminal cases. See N.C. R. App. P. 4(b) (“The notice of
appeal . . . shall designate the judgment or order from which appeal is taken . . . .”);
see also State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542, 543 (2010) (holding
that the court lacked jurisdiction to hear the defendant’s appeal of his judgment
because the defendant appealed only the trial court’s order denying his motion to
suppress, not the trial court’s final judgment).
Here, the State failed to petition this Court for review of the judgment through
a writ of certiorari. When the trial court entered its order granting Robinson’s motion
for appropriate relief on 20 April 2012, it also entered a separate judgment and
commitment order resentencing him to life in prison, pursuant to N.C.G.S. § 15A-
1301. On 10 July 2012, the State filed a petition for writ of certiorari, which this Court
allowed, that sought review of the order granting Robinson’s motion for appropriate
relief but not the trial court’s judgment and commitment order vacating Robinson’s
death sentence and resentencing him to life in prison. No notice of appeal or petition
for writ of certiorari was filed by the State as to the judgment or commitment order.
Further, we note that parties must petition for review of post-conviction proceedings
in death penalty cases within sixty days after delivery of the transcript of the hearing
on the motion for appropriate relief to the petitioning party, a deadline that elapsed
years ago. N.C. R. App. P. 21(f). Therefore, the State has failed to seek review of and
now cannot seek timely review of the judgment sentencing Robinson to life in prison.
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Opinion of the Court
Furthermore, the State lacked the statutory authority to seek review of the
judgment; it is, therefore, final and not subject to appellate review. The General
Assembly has granted the State the statutory authority to seek appellate review in
limited circumstances, and we construe those statutes narrowly. State v. Elkerson,
304 N.C. 658, 669, 285 S.E.2d 784, 791 (1982).
As a threshold matter, the General Assembly did not grant the State the power
to appeal through the RJA. See Original RJA, §§ 1–2, 2009 N.C. Sess. Laws at 1213–
15. The Act did provide that the procedures and hearing “shall follow and comply with
G.S. 15A-1420, 15A-1421, and 15A-1422.” Id., § 1, 2009 N.C. Sess. Laws at 1215.
Section 15A-1422 of the North Carolina General Statutes provides the State the right
to seek review of a trial court’s ruling on a motion for appropriate relief, but review
is limited to those filed pursuant to N.C.G.S. § 15A-1415. N.C.G.S. § 15A-1422(c)
(2019). Robinson’s motion for appropriate relief was not filed pursuant to N.C.G.S.
§ 15A-1415. Rather, it was filed pursuant to the Act. Therefore, we find that the State
lacked the statutory authority to appeal Robinson’s judgment pursuant to N.C.G.S.
§ 15A-1422.
The State’s only other statutory right to appeal is contained in N.C.G.S. § 15A-
1445, which provides the State a right to appeal in the following circumstances,
unless prohibited by the rule against double jeopardy:
(1) When there has been a decision or judgment dismissing
criminal charges as to one or more counts.
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Opinion of the Court
(2) Upon the granting of a motion for a new trial on the
ground of newly discovered or newly available evidence but
only on questions of law.
(3) When the State alleges that the sentence imposed:
(a) Results from an incorrect determination of the
defendant’s prior record level under G.S. 15A-
1340.14 or the defendant’s prior conviction level
under G.S. 15A-1340.21;
(b) Contains a type of sentence disposition that is not
authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23
for the defendant’s class of offense and prior record
or conviction level;
(c) Contains a term of imprisonment that is for a
duration not authorized by G.S. 15A-1340.17 or
G.S. 15A-1340.23 for the defendant’s class of offense
and prior record or conviction level; or
(d) Imposes an intermediate punishment pursuant
to G.S. 15A-1340.13(g) based on findings of
extraordinary mitigating circumstances that are not
supported by evidence or are insufficient as a matter
of law to support the dispositional deviation.
N.C.G.S. § 15A-1445(a)(1)–(3) (2019). None of these provisions grant the State the
statutory authority to appeal the trial court’s judgment sentencing Robinson to life
in prison. Therefore, the State lacked and continues to lack the statutory authority
to appeal life sentences entered pursuant to the RJA.
Because the retroactivity provision of the RJA Repeal violates the double
jeopardy protections of the North Carolina Constitution, because the State failed to
appeal the judgment of the trial court, and because the State lacked the statutory
authority to appeal that judgment in any event, we vacate the trial court’s order
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Opinion of the Court
dismissing Robinson’s claim under the RJA and remand for the reinstatement of a
sentence of life imprisonment without parole.
VACATED AND REMANDED.
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Justice HUDSON concurring in result.
While I agree with the majority that this case is controlled by double jeopardy
principles stemming from the Law of the Land Clause of the North Carolina
Constitution, I prefer to rely on the analysis of Part IV of the majority opinion. I do
not agree that the trial court’s lengthy order entered on 20 April 2012 was final; the
State was permitted to and did seek review of it by filing a petition for writ of
certiorari as provided by the Racial Justice Act. For the reasons set forth in Part IV
of the majority opinion, however, I agree that the separate judgment and commitment
order in which defendant Robinson was sentenced to life imprisonment without the
possibility of parole, entered on that same date, was and remains a final judgment of
which appellate review was neither sought nor obtained. Therefore, double jeopardy
precludes further review of the judgment. Accordingly, I respectfully concur in the
result.
Justice NEWBY dissenting.
As a monarch, King Louis XVI once famously said, “C’est légal, parce que je le
veux” (“It is legal because it is my will.”).1 Today, four justices of this Court adopt the
same approach to the law, violating the norms of appellate review and disregarding
or distorting precedent as necessary to reach their desired result. Apparently, in their
view, the law is whatever they say it is.
In essence the majority opinion presents three novel and unsupported theories
of double jeopardy:
1) In the majority opinion Part III, it argues that this Court lacked the
authority to vacate the 2012 RJA order, despite our order explicitly vacating it based
on our holding that the trial court procedure was fundamentally flawed. Thus, the
2012 RJA order was not vacated and any attempt at appellate review violates double
jeopardy principles.
2) In the majority opinion Part IV, it argues that, while this Court had the
authority to review the 2012 RJA order and the corresponding amended judgment
and commitment order (the amended J & C), the State failed to seek review of the
amended J & C. In its petition for writ of certiorari which this Court granted, the
State only sought review of the underlying 2012 RJA order. While the 2012 RJA order
1Jay Winik, The Great Upheaval: America and the Birth of the Modern World, 1788–
1800 108 (HarperCollins 2007).
STATE V. ROBINSON
Newby, J., dissenting
which was the basis for the amended J & C was vacated, our order did not vacate the
corresponding amended J & C. The amended J & C is thus a final order.
3) In the majority opinion Part IV, it argues that, while this Court had the
authority to review the 2012 RJA order, it did not have the authority to review the
corresponding amended J & C.
The only theory of the majority opinion that has four votes is the second theory.
Justice Hudson’s opinion concurring in the result notes that, while she believes the
State had the authority to seek review of the 2012 RJA order and corresponding
amended J & C, it only specifically sought review of the 2012 RJA order. Because the
State failed to seek review of the corresponding J & C, it became a final judgment.
Even though four justices agree on only one of the theories, because that theory is set
out in her opinion, and for ease of reading, I refer to Chief Justice Beasley’s opinion
as the “majority opinion.”
The votes of the four justices prevent defendant’s execution for murder. It
appears, however, that three justices may have a larger purpose: to establish that our
criminal justice system is seriously—and perhaps irredeemably—infected by racial
discrimination. To accomplish that purpose, the three adopt findings of fact made by
the trial court in an order previously vacated by this Court, the 2012 RJA order. Their
reliance on a vacated order is totally at odds with fundamental legal principles and
this Court’s many precedents holding that vacated orders are null and void. What
makes their action even more remarkable—and indefensible—is that we vacated that
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STATE V. ROBINSON
Newby, J., dissenting
order because the trial court denied the State adequate time to respond to the complex
statistical evidence presented by defendant in support of his motion for appropriate
relief under the Racial Justice Act. A one-sided version of the “facts” seems to suit
their purpose.
The only order properly before this Court is the one the trial court entered after
we vacated the 2012 RJA order and remanded the case, the 2017 remand order. The
2017 remand order dismissed defendant’s RJA MAR upon finding that the General
Assembly’s repeal of the RJA applied to defendant’s case. Because confining itself to
the 2017 remand order would deprive it of the opportunity to attack the motives of
prosecutors, jurors, and even judges, three justices try to revive the vacated order
through a misapplication of double jeopardy law that fully deserves to be labeled
judicial activism; the court is legislating changes in the law from the bench.
None of the majority opinion’s theories implicate the constitutional prohibition
against double jeopardy because none call into question the facts supporting
defendant’s conviction or the imposition of his capital sentence.
Although I dissented from this Court’s holding in State v. Ramseur, 843 S.E.2d
106 (N.C. 2020), that case plainly controls the outcome here. It holds that the General
Assembly’s repeal of the RJA does not apply retroactively. Based on the trial court
order which is actually before us, according to Ramseur and our 2015 order, we should
be returning this case to the trial court for a full hearing on the merits of defendant’s
RJA claim at a proceeding where the State has a fair chance to respond. Instead of
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Newby, J., dissenting
doing the legally correct thing, the majority opinion picks its preferred destination
and reshapes the law to get there. Inasmuch as today’s decision cannot be justified
on any legal basis, I respectfully dissent.
I.
a. Defendant’s Crime and Punishment
In 1994 a jury convicted defendant of the murder of seventeen-year-old Erik
Tornblom, who would have been a senior at Douglas Byrd High School. State v.
Robinson, 342 N.C. 74, 78–80, 463 S.E.2d 218, 221–22 (1995) (Robinson I). Defendant
and his accomplice, seventeen-year-old Roderick Williams, shot Tornblom in the face
with a sawed-off shotgun after he agreed to give them a ride in his car. Id. at 79, 463
S.E.2d at 221. Before leaving the crime scene, defendant and Williams stole
Tornblom’s wallet and divided the twenty-seven dollars from it between them. Id. at
79, 463 S.E.2d at 221–22. Defendant admitted to law enforcement that they shot
Tornblom even though he “kept begging and pleading for [defendant and Williams]
not to hurt him, because he didn’t have any money.” Id. at 79, 463 S.E.2d at 221. Two
days before the murder, defendant told his aunt that “he was going to burn him a
whitey”; defendant repeated this statement three times. Id. at 80, 463 S.E.2d at 222.
At trial a witness testified that, the day after the murder, defendant admitted that
he had robbed a white man the night before and had shot him in the head. Id.2
2 Despite the heinous nature of this crime, and the crimes committed by the
defendants listed in footnote 7, the majority opinion hollowly asserts that its judicial
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STATE V. ROBINSON
Newby, J., dissenting
Defendant pled guilty to the charges of first-degree kidnapping, robbery with
a dangerous weapon, possession of a weapon of mass destruction, felonious larceny,
and possession of a stolen vehicle. Id. at 78, 463 S.E.2d at 221. The State tried
defendant capitally on the count of first-degree murder. Id. On the murder charge,
the jury found defendant guilty both on the basis of premeditation and deliberation
and under the felony murder rule. Id. Defendant filed a pretrial motion, citing Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), but neither the State nor the defense
raised a Batson objection during jury selection. See Batson, 476 U.S. at 79, 106 S. Ct.
at 1712 (holding that the Equal Protection Clause forbids a prosecutor from
challenging potential jurors solely on account of their race and setting the factual
threshold for a defendant to establish a prima facie case of purposeful discrimination
in jury selection).
At the sentencing phase of the trial, the trial court presented the jury with the
statutory aggravating circumstances supported by the evidence, see Robinson I, 342
N.C. at 85–86, 463 S.E.2d at 225; the jury was required to find that one or more of
those aggravating circumstances existed beyond a reasonable doubt and outweighed
any mitigating circumstances before recommending the death penalty, see N.C.G.S.
§ 15A-2000(c)(1)–(3) (2019). In recommending the death penalty, the jury
unanimously found as aggravating circumstances that the murder was committed
elimination of the capital sentence “do[es] not negate or diminish [defendant’s] guilt or the
impact of his crimes on the victim’s family, the victim’s friends, and the community.”
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STATE V. ROBINSON
Newby, J., dissenting
while defendant was engaged in the commission of first-degree kidnapping and
robbery with a firearm and that the murder was especially heinous, atrocious, or
cruel. Robinson I, 342 N.C. at 88–89, 463 S.E.2d at 227; see N.C.G.S. § 15A-2000(e)(5),
(9) (2019). Consistent with the jury’s recommendation, and as required by statute,
the trial court entered a death sentence. Id.; see, e.g., N.C.G.S. § 15A-2000 (2019).
On direct appeal, this Court unanimously found no error either in the trial or
in the sentencing proceeding for the first-degree murder conviction and affirmed
defendant’s sentences, including the death sentence. Robinson I, 342 N.C. at 91, 463
S.E.2d at 228. Defendant raised no claims of racial discrimination on appeal. This
decision included a proportionality review, in which this Court found the punishment
consistent with other capital sentences given the circumstances of the crime. Id. at
88–91, 463 S.E.2d at 227–28. The Supreme Court of the United States denied further
review. Robinson v. North Carolina, 517 U.S. 1197, 116 S. Ct. 1693 (1996). Defendant
exhausted both state and federal post-conviction review and received a full
evidentiary hearing in state court on his motion for appropriate relief (MAR).
Defendant was scheduled to be executed on 26 January 2007, but his execution has
been stayed.3
3On 22 January 2007, defendant filed a civil action in Superior Court, Wake County
and obtained injunctive relief of his execution on the grounds that use of lethal injection to
execute him would violate the Eighth Amendment.
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Newby, J., dissenting
b. The 2012 RJA Order
Defendant committed his crimes in 1991, before the original RJA was enacted
in 2009. On 11 August 2009 the RJA became law, which allowed defendant and other
death row inmates one year to file a motion pursuant to the Act. North Carolina
Racial Justice Act, S.L. 2009-464, § 2, 2009 N.C. Sess. Laws 1213, 1215 [hereinafter
the RJA] (codified at N.C.G.S. § 15A-2010 (2009)) (repealed 2013). Defendant filed a
motion pursuant to the RJA (RJA MAR) on 6 August 2010. Defendant offered as his
primary evidence a statistical study conducted by professors at the Michigan State
University College of Law between 2009 and 2011, assessing jury selection statistics
from across North Carolina. At the start of the hearing, the State moved for a third
continuance because it needed more time to collect additional data from prosecutors
throughout the state in order to address the study. See State v. Robinson, 368 N.C.
596, 597, 780 S.E.2d 151, 152 (2015) (Robinson II). The trial court denied that motion.
Id. The trial court conducted a hearing and entered an order dated 20 April 2012 with
a corresponding amended J & C. In its 2012 RJA order, the trial court stated:
“[H]aving determined that Robinson is entitled to appropriate relief as to [his RJA
claims], [the court] concludes that Robinson is entitled to have his sentence of death
vacated, and Robinson is resentenced to life imprisonment without the possibility of
parole.” The amended J & C was entered based solely on this ruling in the 2012 RJA
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STATE V. ROBINSON
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order.4 This Court allowed the State’s petition for writ of certiorari to review the 2012
RJA order (including the amended J & C entered with it).5
After careful review, on 18 December 2015, this Court vacated the 2012 RJA
order, including the corresponding amended J & C. Robinson II, 368 N.C. at 597, 780
S.E.2d at 152. In our order, we stated:
Central to [defendant’s] proof in this case is a statistical
study that professors at the Michigan State University
College of Law conducted between 2009 and 2011.
[Defendant] gave [the State] all of the data used for the
study in May 2011 and a report summarizing the study’s
findings in July 2011. [Defendant] then provided the final
version of the study to [the State] in December 2011,
approximately one month before the hearing on
[defendant’s] motion began. At the start of the hearing, [the
State] moved for a third continuance because it needed
more time to collect additional data from prosecutors
throughout the state and to address [defendant’s] study.
The trial court denied the motion.
Id. at 596, 780 S.E.2d at 151. We determined that the trial court should have allowed
the State’s motion to continue:
Section 15A-952 of the Criminal Procedure Act requires a
trial court ruling on a motion to continue in a criminal
proceeding to consider whether a case is “so unusual and
4 Four justices hold that the State failed to seek review of this amended J & C.
5 Before this Court could review the trial court’s order, however, the legislature
repealed the statutory provisions upon which defendant’s RJA MAR relied. Act of June 13,
2013, S.L. 2013-154, § 5.(a), 2013 N.C. Sess. Laws 368, 372 [hereinafter the RJA Repeal]. On
19 June 2013, the RJA was repealed in its entirety. RJA Repeal, §§ 5.(a), 6, 2013 N.C. Sess.
Laws at 372. On its face, the RJA Repeal legislation was to apply retroactively, though it
exempted any judgments granting relief under the RJA that were affirmed on appeal and
became final orders before the repeal’s effective date. Id., § 5.(d), 2013 N.C. Sess. Laws at
372.
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STATE V. ROBINSON
Newby, J., dissenting
so complex” that the movant needs more time to adequately
prepare. N.C.G.S. § 15A-952(g)(2) (2013). [Defendant’s]
study concerned the exercise of peremptory challenges in
capital cases by prosecutors in Cumberland County, the
former Second Judicial Division, and the State of North
Carolina between 1990 and 2010. The breadth of
[defendant’s] study placed [the State] in the position of
defending the peremptory challenges that the State of
North Carolina had exercised in capital prosecutions over
a twenty-year period. [The State] had very limited time,
however, between the delivery of [defendant’s] study and
the hearing date. Continuing this matter to give [the State]
more time would have done no harm to [defendant], whose
remedy under the Act was a life sentence without the
possibility of parole. See N.C.G.S. § 15A-2012(a)(3). Under
these exceptional circumstances, fundamental fairness
required that [the State] have an adequate opportunity to
prepare for this unusual and complex proceeding.
Therefore, the trial court abused its discretion by denying
[the State’s] third motion for a continuance.
Id. (emphasis added). This Court further concluded that “[t]he trial court’s failure to
give [the State] adequate time to prepare resulted in prejudice.” Id. at 597, 780 S.E.2d
at 151–52.6 In its decision, this Court “express[ed] no opinion on the merits of
[defendant’s] motion for appropriate relief,” but vacated the 2012 RJA order and
remanded to the trial court to “address [the State’s] constitutional and statutory
challenges pertaining to the Act.” Id. at 596, 780 S.E.2d at 152. With the 2012 RJA
order vacated, the case was remanded to the trial court to consider the State’s
challenges and, if needed, to conduct a new hearing, after giving the State adequate
6In seeking to reinstate the 2012 RJA order, the majority opinion remarkably faults
the State for its failure to “present sufficient rebuttal evidence” despite this fundamentally
flawed procedure.
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STATE V. ROBINSON
Newby, J., dissenting
time to prepare. Id.; see also State v. Augustine, 368 N.C. 594, 780 S.E.2d 552 (2015).7
The Supreme Court of the United States denied defendant’s request to review this
7 For the same and additional reasons, this Court also vacated a combined trial court
order addressing RJA claims of three other defendants in State v. Augustine, 368 N.C. 594,
780 S.E.2d 552 (2015). On remand, since the primary issue involved whether the RJA Repeal
could be applied retroactively, the trial court considered the viability of defendant’s RJA MAR
post-repeal along with the RJA MARs filed by the three defendants.
In State v. Augustine, 359 N.C. 709, 616 S.E.2d 515 (2005), this Court affirmed
defendant Augustine’s conviction for first-degree murder on the basis of malice,
premeditation and deliberation and affirmed his death sentence for the killing of Officer Roy
Gene Turner, Jr. In that case, one witness testified that he heard defendant Augustine say
that “he was angry because his brother had ‘[gotten] some time’ and that he wanted to shoot
a police officer,” id. at 713, 616 S.E.2d at 520 (alteration in original), and other witnesses
testified that they “saw defendant [Augustine] take a black pistol out of his pocket and cock
it while the officer was still in his car. As Officer Turner emerged from his vehicle, defendant
[Augustine] raised himself up on the telephone booth and fired three or four rounds at close
range, causing the officer to fall to his knees.” Id. at 714, 616 S.E.2d at 521.
In State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), co-defendants and brothers
Kevin Salvador Golphin and Tilmon Charles Golphin, Jr., were tried capitally and each were
convicted of two counts of first-degree murder, two counts of robbery with a dangerous
weapon, one count of assault with a deadly weapon with intent to kill, one count of
discharging a firearm into occupied property, and one count of possession of a stolen vehicle.
Id. at 379, 533 S.E.2d at 183. In that case, the evidence showed that the defendants shot and
killed two police officers, Trooper Lloyd E. Lowry and Deputy David Hathcock, when the
officers stopped the defendants while responding to a dispatch call that identified the
defendants as fleeing the scene of a robbery of a finance company while driving a stolen
vehicle. Id. at 380, 533 S.E.2d at 183–84.
In State v. Walters, 357 N.C. 68, 588 S.E.2d 344 (2003), defendant Walters was tried
capitally, was found guilty of two counts of first-degree murder on the basis of premeditation
and deliberation and under the felony murder rule, and was sentenced to death for both. Id.
at 75, 588 S.E.2d at 349. Along with the murder charges, defendant Walters was found guilty
of nine other felonies arising out of a gang’s crime spree that involved, inter alia, multiple
random kidnappings of women and their execution-style shooting, ultimately resulting in the
death of two of those victims, Susan Moore and Tracy Lambert, and serious injury to the
other victim, Debra Cheeseborough. Id. at 75–78, 588 S.E.2d at 349–50. “One of the two
murder victims watched as her friend was fatally shot in her presence. The other begged to
be shot versus having her throat cut before she was shot in the head. The surviving victim
was kidnapped at gunpoint.” Id. at 113, 588 S.E.2d at 371.
This Court’s decision today would seem to control the outcome of these cases as well.
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STATE V. ROBINSON
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Court’s order vacating the 2012 RJA order. Robinson v. North Carolina, 137 S. Ct. 67(2016). Thus, without question, the decision by this Court to vacate the 2012 RJA
order is final.
c. The 2017 Remand Order
On remand, consistent with this Court’s order, the trial court only considered
whether the retroactive repeal of the RJA rendered void defendant’s RJA MAR. It
ultimately dismissed defendant’s RJA MAR in an order filed on 25 January 2017,
citing the legislature’s intent that the 19 June 2013 repeal of the RJA apply
retroactively. The trial court determined that “[t]his repealing legislation . . .
unambiguously expressed the conclusion of the legislature that statistical evidence
should not and could not be used to prove purposeful racial discrimination in a specific
case.” The statutory language, as the trial court noted, acknowledges that capital
defendants retain all the constitutional rights, safeguards, and protections, including
the right to a trial free from racial bias, that they enjoyed before the enactment of the
RJA, during its tenure, and following its repeal. See Act of June 13, 2013, S.L. 2013-
154, § 5.(b), 2013 N.C. Sess. Laws 368, 372 [hereinafter the RJA Repeal]. But, as the
trial court concluded, the RJA Repeal “prohibited statistical evidence from unrelated
cases from admission in evidence in a specific case.”
The trial court acknowledged that the statutory language, on its face, “provides
that it is retroactive and applies to any MAR filed pursuant to the RJA before 19 June
2013, and that all MARs filed before that date are void. Each MAR in these cases was
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STATE V. ROBINSON
Newby, J., dissenting
filed prior to the effective date of the act, 13 June 2013[;]” therefore, the RJA Repeal
should retroactively apply to them. Applying the statutory language of the RJA
Repeal, the trial court determined that the “resentencing orders to life imprisonment
without parole were not affirmed upon appellate review, and because th[o]se orders
were subject to appellate review, and were vacated, they were not final orders by a
court of competent jurisdiction.” The trial court concluded that, because no final order
had been entered on defendant’s RJA claims or his claims under the amended RJA,
those claims were controlled by the RJA Repeal, and his RJA claims were void as a
matter of law.
Having interpreted the statutory language as determinative, the trial court
acknowledged contentions “that the repeal of the Racial Justice Act violates
[defendants’] constitutional rights or limits access to the protections from
discrimination that already exist under the North Carolina and United States
Constitutions.” Such contentions must overcome the presumption that the General
Assembly enacts constitutional legislation. Relying on case law from this Court, the
trial court concluded that a final judgment, rather than the filing of a MAR, could
vest a defendant’s right to a remedy under the RJA. Without a final judgment, the
statutory remedy can be repealed by the legislature without constitutional
implications.
In short, the remand trial court determined that, because no final order had
been entered on defendant’s RJA claims, those claims were controlled by the repeal
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STATE V. ROBINSON
Newby, J., dissenting
of the RJA, and his RJA claims were void as a matter of law. The trial court concluded
that the unconditional repeal of the RJA warranted the dismissal of defendant’s RJA
motion, citing Spooners Creek Land Corp. v. Styron, 276 N.C. 494, 496, 172 S.E.2d
54, 55 (1970), and In re Incorporation of Indian Hills, 280 N.C. 659, 663, 186 S.E.2d
909, 912 (1972).
d. Effect of the Vacated 2012 RJA Order
The 2017 remand order and this order alone is the subject of our review in this
case. The 2012 RJA order, including its corresponding amended J & C, having been
vacated no longer exists.
Significantly, on remand the trial court never conducted an evidentiary
hearing or reached the merits of defendant’s RJA claims. The State has never had an
opportunity to present its evidence. Legally, there is no trial court order on the merits;
it was vacated. Though I disagree with its decision, this Court has previously
addressed the merits of the 2017 remand order in Ramseur, 843 S.E.2d 106, and
invalidated the retroactive nature of the RJA Repeal. Id. at 118; see id. at 122–39
(Newby, J., dissenting).8
As stated in Justice Ervin’s dissent, the decision in Ramseur should control
this matter. But, unwilling to simply follow the law and decide the issue presented,
the majority opinion takes the unprecedented and indefensible step of attempting to
8This dissent’s analysis of the RJA, including its separation-of-powers discussion, is
hereby incorporated by reference.
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STATE V. ROBINSON
Newby, J., dissenting
recreate and reinstate a trial court order that legally no longer exists. The only trial
court order granting defendant relief under the RJA, the 2012 RJA order, has been
declared null and void. The majority opinion, by an act of judicial will, seeks to
resurrect whole cloth the 2012 RJA order, which this Court held to have been based
on a fundamentally flawed process. See Robinson II, 368 N.C. at 597, 780 S.E.2d at
151–52. Thus, this Court vacated it as a result of its unfair proceedings. Id. (“The
trial court’s failure to give [the State] adequate time to prepare resulted in prejudice.
Without adequate time to gather evidence and address [defendant’s] study, [the
State] did not have a full and fair opportunity to defend this proceeding.” (internal
citations omitted)). Nonetheless, the majority opinion faults the State for its failure
to present adequate rebuttal evidence.
A vacated order is treated as if the order were never entered. See Alford v.
Shaw, 327 N.C. 526, 543 n.6, 398 S.E.2d 445, 455 n.6 (1990) (defining “vacate” as “[t]o
annul; to set aside; to cancel or rescind. To render an act void; as, to vacate an entry
of record, or a judgment” (quoting Black’s Law Dictionary 1388 (rev. 5th ed. 1979))).
It “render[s] the judgment null and void”; if a judgment is vacated, “no part of it could
thereafter be the law of the case.” Id. “A void judgment is, in legal effect, no judgment.
No rights are acquired or d[i]vested by it. It neither binds nor bars any one, and all
proceedings founded upon it are worthless—as if judgment be rendered without
service on the party, or his appearance.” Stafford v. Gallops, 123 N.C. 19, 21–22, 31
S.E. 265, 266 (1898) (citations omitted). Regardless of the nature of the trial court’s
order, once it is vacated, it has no legal effect. Furthermore, the 2012 RJA order
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STATE V. ROBINSON
Newby, J., dissenting
procedurally is not even before this Court. Nonetheless, without analysis or apology,
the majority opinion simply seeks to recreate it by raw judicial power. Despite the
irredeemably flawed procedure and the State’s never having had an opportunity to
present its evidence, the majority opinion relies on and seeks to enforce the 2012 RJA
order.
As stated earlier, the majority opinion presents three arguments only one of
which garners four votes, resulting in the narrow holding that the State failed to
appeal the amended J & C so that order is final. This argument is presented in Part
IV of the majority opinion. Nonetheless, this dissent will address the arguments in
the order in which they are presented in the majority opinion.
II.
Even if by some judicial magic the 2012 RJA order were recreated and properly
before the Court procedurally, the majority opinion’s creative double jeopardy
analysis is flawed. I agree with Justice Ervin’s assessment that the double jeopardy
argument is “barred by the law of the case doctrine.” Furthermore, in a capital-
sentencing context, double jeopardy only applies if the final reviewing court
determines that the State failed to present evidence sufficient to establish an
aggravating circumstance as required to justify a capital sentence. If the State failed
to present sufficient evidence, it does not get another chance. Here there is no dispute
that more than sufficient evidence supported the jury’s finding of both aggravating
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STATE V. ROBINSON
Newby, J., dissenting
circumstances, justifying the jury’s death sentence recommendation. Thus, a double
jeopardy claim is not viable.
At the time of its passage, the General Assembly intended the RJA to provide
a new MAR procedure through which a capitally sentenced defendant could
collaterally challenge a death sentence. The RJA’s procedure does not equate to a
defendant’s capital-sentencing proceeding because it does not conform to the
standards of a criminal trial. It does not negate the facts of the underlying offense or
aggravating circumstances, and it cannot serve as an affirmative defense to a
sentence imposed during a defendant’s capital sentencing. The RJA was simply a
mechanism for a defendant to collaterally attack his sentence. Given that on appeal
this Court vacated the only trial court order under the RJA, that order cannot
constitute a final judgment on defendant’s RJA MAR let alone an “acquittal” for
double jeopardy purposes. There is no legal support for this approach. The majority
opinion misstates and misapplies double jeopardy principles.
The Fifth Amendment of the United States Constitution contains a guarantee
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; see also Benton v. Maryland, 395 U.S. 784, 794–96,
89 S. Ct. 2056, 2062–63 (1969) (incorporating the Double Jeopardy Clause to the
States by the Fourteenth Amendment and noting its “fundamental nature” rooted in
the English common law and dating back to the Greeks and the Romans); State v.
Brunson, 327 N.C. 244, 247, 393 S.E.2d 860, 863 (1990) (recognizing the Law of the
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STATE V. ROBINSON
Newby, J., dissenting
Land Clause of the North Carolina Constitution as affording the same protections as
the Double Jeopardy Clause of the federal constitution). “The law of the land clause,
the basis for the former jeopardy defense in North Carolina, is conceptually similar
to federal due process,” and therefore we “view the opinions of the United States
Supreme Court with high regard in the context of interpreting our own law of the
land clause.” Brunson, 327 N.C. at 249, 393 S.E.2d at 864 (citations omitted). This
Court has previously rejected a “defendant’s contention that the law of this state
confers greater former jeopardy protection upon defendants than the federal law
does.” Id.“Our double jeopardy case law is complex, but at its core, the Clause means
that those acquitted or convicted of a particular ‘offence’ cannot be tried a second time
for the same ‘offence.’ ” Gamble v. United States, 139 S. Ct. 1960, 1964 (2019) (quoting
U.S. Const. amend. V). The protections against double jeopardy prevent multiple
attempts to convict a defendant of an offense or to retry him for that offense when he
has already been acquitted. “It benefits the government by guaranteeing finality to
decisions of a court and of the appellate system, thus promoting public confidence in
and stability of the legal system. The objective is to allow the prosecution one
complete opportunity to convict a defendant in a fair trial.” Brunson, 327 N.C. at 249,
393 S.E.2d at 864 (1990) (citing Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct.
824, 830 (1978)).
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STATE V. ROBINSON
Newby, J., dissenting
Conceptually, “jeopardy” centers around the factual inquiry that determines
guilt or innocence. “[A] defendant is placed in jeopardy in a criminal proceeding once
the defendant is put to trial before the trier of the facts, whether the trier be a jury or
a judge.” United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 554 (1971) (emphasis
added). A conviction or guilty plea brings finality if it represents the final judgment
“with respect to the guilt or innocence of the defendant.” See Burks v. United States,
437 U.S. 1, 15, 98 S. Ct. 2141, 2149 (1978) (discussing that “evidentiary insufficiency,”
rather than a trial error, decides whether the government has failed to prove its case
“with respect to the guilt or innocence of the defendant”). The protection against
double jeopardy provides that, “once a defendant is placed in jeopardy for an offense,
and jeopardy terminates with respect to that offense, the defendant may neither be
tried nor punished a second time for the same offense.” Sattazahn v. Pennsylvania,
537 U.S. 101, 106, 123 S. Ct. 732, 736 (2003). The State simply cannot retry a
convicted defendant in pursuit of harsher punishment. See Green v. United States,
355 U.S. 184, 190–91, 78 S. Ct. 221, 225–226 (1957).
Finding double jeopardy presupposes a preceding final judgment, see Burks,
437 U.S. at 15, 98 S. Ct. at 2149. It “does not bar reprosecution of a defendant whose
conviction is overturned on appeal.” Justices of Bos. Mun. Court v. Lydon, 466 U.S.
294, 308, 104 S. Ct. 1805, 1813 (1984). “Without risk of a determination of guilt,
jeopardy does not attach, and neither an appeal nor further prosecution constitutes
double jeopardy.” Serfass v. United States, 420 U.S. 377, 391–92, 95 S. Ct. 1055, 1064
(1975); see also State v. Courtney, 372 N.C. 458, 463 n.5, 831 S.E.2d 260, 265 n.5
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STATE V. ROBINSON
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(2019) (“[T]he State may proceed with a retrial when a defendant secures the relief
of a new trial after an original conviction is vacated on appeal.”).
Jeopardy will always terminate following a defendant’s acquittal regardless of
whether the acquittal originated from a jury or judge. See Evans v. Michigan, 568
U.S. 313, 328–29, 133 S. Ct. 1069, 1080–81 (2013). Hence, “[a] verdict of acquittal on
the issue of guilt or innocence is, of course, absolutely final,” Bullington v. Missouri,
451 U.S. 430, 445, 101 S. Ct. 1852, 1861 (1981), even if obtained erroneously, see
Green, 355 U.S. at 188, 192, 78 S. Ct. at 223–24, 226. Notably, “an ‘acquittal’ cannot
be divorced from the procedural context,” Serfass, 420 U.S. at 392, 95 S. Ct. at 1064;
it has “no significance . . . unless jeopardy has once attached and an accused has been
subjected to the risk of conviction,” id. at 392, 95 S. Ct. at 1065.
An acquittal, by its very definition, requires some finding of innocence and
“actually represents a resolution, correct or not, of some or all of the factual elements
of the offense charged.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571,
97 S. Ct. 1349, 1355 (1977). An acquittal is “any ruling that the prosecution’s proof is
insufficient to establish criminal liability for the offense.” Evans, 568 U.S. at 318, 133
S. Ct. at 1074–75. In a capital-sentencing context, insufficient proof to establish
criminal liability supporting the capital sentence means that the State failed to
present evidence sufficient to prove that at least one of the statutory aggravating
circumstances existed at the time that the defendant committed the capital offense.
Like proving a criminal offense in the guilt or innocence phase of a capital trial, these
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Newby, J., dissenting
circumstances must be presented to a jury, and the jury must find at least one of the
statutory aggravating circumstances existed beyond a reasonable doubt to impose the
death penalty.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the Supreme
Court of the United States clarified that “if the existence of any fact (other than a
prior conviction) increases the maximum punishment that may be imposed on a
defendant, that fact—no matter how the State labels it—constitutes an element, and
must be found by a jury beyond a reasonable doubt.” Sattazahn, 537 U.S. at 111, 123
S. Ct. at 739 (citing Apprendi, 530 U.S. at 482–84, 120 S. Ct. at 2348). Thus, in the
capital-sentencing context, aggravating circumstances that make a defendant eligible
for the death penalty “operate as ‘the functional equivalent of an element of a greater
offense.’ ” Id. (quoting Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 2428
(2002)). It is in that sense that the sentencing phase of a capital trial carries the
“hallmarks of the trial on guilt or innocence.” Bullington, 451 U.S. at 439, 101 S. Ct.
at 1858; id. at 438, 101 S. Ct. at 1858 (“The presentence hearing resembled and,
indeed, in all relevant respects was like the immediately preceding trial on the issue
of guilt or innocence.”). North Carolina’s death penalty statutes reflect these
principles. See, e.g., N.C.G.S. § 15A-2000(c), (e), (f) (2019).9
9Following a guilty verdict of first-degree murder, in a separate trial phase the jury
considers aggravating circumstances from a comprehensive list, N.C.G.S. § 15A-2000(e),
presented pursuant to the Rules of Evidence, see N.C.G.S. § 8C-1 (2019), and weighs any
mitigating circumstances in the defendant’s favor, N.C.G.S. § 15A-2000(f). The jury must find
the existence of an aggravating circumstance beyond a reasonable doubt and that that
circumstance outweighs any mitigating circumstances before recommending the death
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“If a jury unanimously concludes that a State has failed to meet its burden of
proving the existence of one or more aggravating circumstances, double-jeopardy
protections attach to that ‘acquittal’ on the offense of ‘murder plus aggravating
circumstance(s).’ ” Sattazahn, 537 U.S. at 112, 123 S. Ct. at 740. The reason for this
determination “is not that a capital-sentencing proceeding is ‘comparable to a trial,’
but rather that ‘murder plus one or more aggravating circumstances’ is a separate
offense from ‘murder’ simpliciter.” Id. (first quoting Arizona v. Rumsey, 467 U.S. 203,
209, 104 S. Ct. 2305, 2309 (1984); then citing Bullington, 451 U.S. at 438, 101 S. Ct.
at 1861) (internal citations omitted)).
In a capital-sentencing context, only after there has been a finding that no
aggravating circumstance is present can a defendant claim an acquittal, State v.
Sanderson, 346 N.C. 669, 679, 488 S.E.2d 133, 138 (1997), and “the touchstone for
double-jeopardy protection in capital-sentencing proceedings is whether there has
been an ‘acquittal,’ ” Sattazahn, 537 U.S. at 109, 123 S. Ct. at 738. “[A]n acquittal on
the merits by the sole decisionmaker in the proceeding is final and bars retrial on the
same charge.” Poland v. Arizona, 476 U.S. 147, 154, 106 S. Ct. 1749, 1754 (1986)
(citing Rumsey, 467 U.S. at 211, 104 S. Ct. at 2310).
penalty. N.C.G.S. § 15A-2000(c)(1)–(3). This Court automatically reviews cases where a death
sentence is imposed to ensure the defendant received a fair trial, free from prejudicial error,
and that the death sentence was proportional to the facts of the defendant’s individual case.
See N.C.G.S. § 7A-27(a)(1) (2019).
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The majority opinion correctly defines the term “acquittal” initially, but then
blurs the lines between capital trials, capital-sentencing proceedings, and post-
conviction procedures to broaden its definition. Simply referring to an event as an
acquittal, however, does not make it so. For an event to be an “acquittal,” it must tie
factually to a defendant’s guilt or innocence of the offense charged or factually
determine that an aggravating circumstance to justify the death penalty does not
exist. That definition of an acquittal remains the same and must be met regardless
of the stage of the defendant’s proceedings, whether during a defendant’s capital trial
or capital-sentencing proceedings, on appeal, or during post-conviction proceedings.
In Sattazahn the state statute required a unanimous jury to impose a death
sentence. Sattazahn, 537 U.S. at 109–10, 123 S. Ct. at 738–39. When a jury was
hopelessly deadlocked in the penalty stage, the same statutory scheme required the
judge to enter life sentence. Id. At defendant Sattazahn’s trial, the jury convicted him
but was hopelessly deadlocked on the death penalty, and the judge imposed a life
sentence. Id. at 104–05, 123 S. Ct. at 736. Defendant Sattazahn appealed, and the
appellate court reversed the first-degree murder conviction and remanded the case
for a new trial. Id. at 105, 123 S. Ct. at 736. On remand the State presented evidence
of an additional aggravating circumstance, the jury again convicted defendant
Sattazahn of first-degree murder, but this time imposed a death sentence. Id. Both
the conviction and sentence were affirmed on appeal. Id. On review the Supreme
Court of the United States determined that defendant Sattazahn’s original life
sentence was not an acquittal on the merits, id. at 109, 123 S. Ct. at 738, reiterating
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that “it is not the mere imposition of a life sentence that raises a double-jeopardy
bar,” id. at 107, 123 S. Ct. at 737. The judge’s imposition of a life sentence during the
first trial was not an “acquittal” for double jeopardy purposes because the jury’s
inability to agree did not constitute a finding of fact that no aggravating circumstance
existed. See id. at 112–13, 123 S. Ct. at 740.10
In Bobby v. Bies, 556 U.S. 825, 129 S. Ct. 2145 (2009), the Supreme Court of
the United States considered a post-conviction attempt to vacate a defendant’s death
sentence based on the aggravating and mitigating circumstances the jury considered
at his capital-sentencing proceeding. Id. at 831, 129 S. Ct. at 2150. In its analysis, the
Supreme Court distinguished an actual acquittal for double jeopardy purposes from
a post-conviction attempt to vacate a death sentence. Id. at 829, 129 S. Ct. at 2149.
Defendant Bies argued that a then-recent case Atkins v. Virginia, 536 U.S. 304, 122
S. Ct. 2242 (2002), which prohibited the execution of intellectually disabled
defendants, entitled him to post-conviction sentencing relief. Id. at 832, 129 S. Ct. at
2151. Defendant Bies contended that, because the jury in his case had found his
10 A jury can also revisit previously submitted aggravating circumstances in a new
capital-sentencing proceeding without implicating double jeopardy, if there has been no
conclusive factual finding on those factors. Sanderson, 346 N.C. at 679, 488 S.E.2d at 138(Double jeopardy principles did not prevent a jury’s consideration of aggravating
circumstances in a third capital-sentencing proceeding when neither jury previously found
that no aggravating circumstance existed). Compare Poland, 476 U.S. at 154, 106 S. Ct. at
1755 (The failure to find one particular aggravating circumstance is not an acquittal for
double jeopardy purposes and does not preclude the death penalty.), with Rumsey, 467 U.S.
at 203, 205, 104 S. Ct. at 2305, 2307 (A life sentence imposed by a judge during a capital-
sentencing proceeding, who found no aggravating circumstances, constituted an acquittal of
the death penalty for purposes of the Double Jeopardy Clause.).
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STATE V. ROBINSON
Newby, J., dissenting
intellectual disability to be a mitigating circumstance at his prior sentencing hearing,
the jury essentially found facts sufficient to settle the issue of his intellectual
disability. Id. Considering this fact-finding as a type of “issue preclusion,” the federal
appeals court concluded that it, in conjunction with defendant Bies’s newly
recognized “Aktins defense” of intellectual disability, “acquitted” defendant Bies of
his death sentence and vacated his death sentence. Id. at 832–33, 129 S. Ct. at 2151.
In that court’s view, any proceedings on defendant Bies’s intellectual disability would
violate double jeopardy. Id. at 833, 129 S. Ct. at 2151.
On review the Supreme Court of the United States first reiterated that “[t]he
touchstone for double-jeopardy protection in capital-sentencing proceedings is
whether there has been an ‘acquittal.’ ” Id. (quoting Sattazahn, 537 U.S. at 109, 123
S. Ct. at 738). Since the State presented sufficient evidence to support the jury’s
finding of aggravated circumstances during the capital-sentencing proceeding, and
the jury then voted to impose the death penalty, there was no “acquittal.” Id. at 833–
34, 129 S. Ct. at 2152. The State did not “twice put [defendant Bies] in jeopardy”
because “neither the judge nor the jury had acquitted the defendant in his first . . .
proceeding by entering findings sufficient to establish legal entitlement to the life
sentence.” Id. at 833, 129 S. Ct. at 2151–52 (first quoting U.S. Const. amend. V; then
quoting Sattazahn, 537 U.S. at 108–09, 123 S. Ct. at 738). The issue in Bies did not
involve serial prosecutions or an attempt by the State to procure a conviction or to
increase defendant Bies’s punishment, but rather his “second run at vacating his
death sentence.” Id. at 833–34, 129 S. Ct. at 2152 (quoting Bies v. Bagley, 535 F.3d
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STATE V. ROBINSON
Newby, J., dissenting
520, 531 (6th Cir. 2008) (Sutton, J., dissenting)). Such an inquiry does not implicate
double jeopardy. Id.A RJA MAR hearing does not involve serial prosecutions or an attempt by the
State to procure a conviction or to increase a defendant’s punishment. It is not akin
to a trial on the merits as to the issue of punishment. The subject matter of the RJA
hearing is unrelated to the murder that led to a defendant’s conviction and sentence.
Even if relief is granted under the RJA, it does not invalidate, excuse, or justify a
defendant’s guilt for that murder. A RJA hearing does not seek to increase a
defendant’s punishment; a defendant asserting RJA claims has already received the
highest punishment available. Even if relief is initially granted under the RJA, a RJA
hearing does not invalidate the aggravating circumstances that justified the
imposition of the death sentence as required for an acquittal. Because defendant here
“cannot establish that the jury or the court ‘acquitted’ him during his first capital-
sentencing proceeding,” Sattazahn, 537 U.S. at 109, 123 S. Ct. at 738, double jeopardy
does not apply.
Nonetheless, the majority opinion creatively cites Burks in an attempt to
support its argument. See Burks, 437 U.S. 1, 98 S. Ct. 2141. Burks, however, simply
stands for the same basic proposition that the evidence presented at the guilt or
innocence phase of defendant’s capital trial must be sufficient to justify a defendant’s
conviction. Id. At his trial for a bank robbery, defendant Burks relied on an insanity
defense and presented multiple expert witnesses to support that theory. Id. at 2–3,
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98 S. Ct. at 2143. The prosecution offered, inter alia, its expert witnesses in rebuttal,
but they acknowledged defendant Burks’s “character disorder” and one of those
witnesses equivocally answered whether defendant Burks was capable of conforming
his conduct to the law. Id. at 3, 98 S. Ct. at 2143. Defendant Burks unsuccessfully
moved for an acquittal before the case was submitted to the jury, which found him
guilty. Id. Following his conviction, he argued that the evidence was insufficient to
support the guilty verdict, and the trial court denied any relief. Id.
On direct appeal the reviewing court held that the prosecution had failed to
rebut defendant Burks’s proof of insanity at the guilt or innocence phase, a defense
that could excuse his criminal culpability for the offense itself. Id. at 17–18, 98 S. Ct.
at 2150–51. The appellate court reversed and remanded the case for the trial court to
decide whether defendant was entitled to a new trial or a directed verdict of acquittal.
Id. at 4, 98 S. Ct. at 2144.
On appeal to the Supreme Court of the United States, the issue presented was
“whether a defendant may be tried a second time when a reviewing court has
determined that in a prior trial the evidence was insufficient to sustain the verdict of
the jury.” Id. at 5, 98 S. Ct. at 2144. The Supreme Court concluded that, once the
reviewing court found the evidence presented at his first trial insufficient to warrant
a guilty verdict, the protection against double jeopardy prevented a second trial
during which the prosecution could try to supply the evidence once lacking and secure
a guilty verdict. Id. at 18, 98 S. Ct. at 2150–51.
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STATE V. ROBINSON
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The appellate decision unmistakably meant that the [trial
court] had erred in failing to grant a judgment of
acquittal. . . . The Double Jeopardy Clause forbids a second
trial for the purpose of affording the prosecution another
opportunity to supply evidence which it failed to muster in
the first proceeding. This is central to the objective of the
prohibition against successive trials.
Id. at 11, 98 S. Ct. at 2147 (footnote omitted). The Supreme Court then placed
defendant Burks’s scenario within the traditional double jeopardy protection that
prevents a series of trials and repeated attempts to convict a defendant of a criminal
offense:
The Clause does not allow “the State . . . to make repeated
attempts to convict an individual for an alleged offense,”
since “[t]he constitutional prohibition against ‘double
jeopardy’ was designed to protect an individual from being
subjected to the hazards of trial and possible conviction
more than once for an alleged offense.”
Id. (quoting Green, 355 U.S. at 187, 78 S. Ct. at 223).
The RJA, however, does not constitute an affirmative defense to a capital
offense because RJA relief does not negate proof of the elements of any capital offense
or any aggravating circumstance in capital sentencing. The cases relied on by the
majority opinion only find an acquittal when the evidence is legally insufficient to
support proof of the offense committed or proof of the aggravating factors beyond a
reasonable doubt. Defendant has already been convicted at his capital trial, received
the highest sentence possible at his capital-sentencing proceeding before a jury, and
both his conviction and sentence has been affirmed on appeal. Defendant has never
received an “acquittal on the merits.” See Poland, 476 U.S. at 154, 106 S. Ct. at 1754.
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STATE V. ROBINSON
Newby, J., dissenting
RJA claims are not part of a defendant’s capital trial or capital-sentencing
proceeding at all, but must be pursued by filing a collateral MAR. A post-conviction
hearing on a RJA MAR does not bear “the hallmarks of the trial on guilt or innocence,”
as argued by the majority opinion because, as it also concedes, defendant’s guilt or
any other factual inquiry surrounding the nature of the offense at the time of its
commission are not at issue.
To support the desired outcome, the majority opinion here seeks to expand the
interpretation of double jeopardy far beyond that recognized by our case law or that
of the federal courts. Without authority, the majority opinion tries to embed that
expansive interpretation into our state constitution. Notably, this Court has held that
the double jeopardy protection provided by our state constitution provides no greater
protection than its federal counterpart. Brunson, 327 N.C. at 249, 393 S.E.2d at 864(rejecting the “defendant’s contention that the law of this state confers greater former
jeopardy protection upon defendants than the federal law does”).
III.
Recognizing the deficiencies in its double jeopardy analysis based on its
attempt to resurrect the 2012 RJA order, the majority opinion submits alternative
theories, again unsupported by law: The majority opinion argues that the State only
sought appellate review of the 2012 RJA order, not the corresponding amended J & C
entered pursuant to the 2012 RJA order. The majority opinion reasons that, even if
the 2012 RJA order were vacated, the companion amended J & C remains effective
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STATE V. ROBINSON
Newby, J., dissenting
because it was not part of the certiorari review allowed by this Court. As previously
noted, this theory—that the State failed to seek review of the amended J & C—is the
only theory for which there are four votes. The majority opinion further argues that
the State was prohibited from seeking any appellate review of the amended J & C.
Both of these creative arguments are indefensible. The only legal basis for the
trial court’s entry of the amended J & C was the 2012 RJA order. By allowing the
State’s petition for writ of certiorari to review the court’s ruling of defendant’s RJA
MAR, this Court granted review of the entire proceeding. Once the 2012 RJA order
was vacated, everything arising from it was likewise void. It is nonsensical to concede
that the 2012 RJA order was properly before the Court, but the amended J & C was
not. Similarly, there is no support that this Court’s review of the amended J & C was
prohibited. Both under our state constitution and applicable statutes the State had
the authority to seek appellate review. Finally, as previously discussed, the validity
of the 2012 RJA order with its corresponding amended J & C is not procedurally
before this Court.
The General Assembly intended the RJA to allow a capitally sentenced
defendant to collaterally challenge a death sentence by generally following the MAR
procedures. Like any other trial court decision on a MAR, it is subject to appellate
review. By allowing the State’s petition for writ of certiorari, this Court provided
appellate review of the entire MAR proceeding, including the process and any
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STATE V. ROBINSON
Newby, J., dissenting
resulting orders. It is indisputable that this Court has the authority to review the
actions of any lower court.
The state constitution recognizes this Court’s jurisdiction to review any
decision of the courts below, N.C. Const. art. IV, § 12, and that it has subject matter
jurisdiction regardless whether the trial court grants or denies relief, see id. art IV,
§ 12(1) (“The Supreme Court shall have jurisdiction to review upon appeal any
decision of the courts below, upon any matter of law or legal inference.”). This basic
principle of appellate review rings particularly true here because this Court has
appellate jurisdiction by statute over death penalty cases like this one. See N.C.G.S.
§ 7A-27(a)(1) (2019).
I agree with the statutory analysis of Justice Ervin in his dissenting opinion
that the amended J & C was subject to appellate review which we granted when this
Court allowed the State’s petition for writ of certiorari. Our case law supports this
perspective. In State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2015), this Court
determined “the Court of Appeals has subject matter jurisdiction to review the State’s
appeal from a trial court’s ruling on a [MAR] when the defendant has been granted
relief in the trial court.” Id. at 41, 42–43, 770 S.E.2d at 76. In that case, defendant
Stubbs’s 1973 guilty plea resulted in a sentence of life imprisonment, id. at 40, 770
S.E.2d at 75, but under the new Structured Sentencing Act, the length of his sentence
would have likely been much shorter, id. at 40 n.1, 770 S.E.2d at 75 n.1 (citing
N.C.G.S. §§ 15A-1340.10 to 1340.23 (effective 1 Oct. 1994)). In 2011 defendant Stubbs
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STATE V. ROBINSON
Newby, J., dissenting
filed a pro se MAR in the Superior Court, Cumberland County arguing that the new
Structured Sentencing Act made “significant changes” in the sentencing laws and
that his 1973 sentence now constituted cruel and unusual punishment under the
Eighth Amendment to the federal constitution. Id. at 40, 770 S.E.2d at 75. After an
evidentiary hearing, the trial court agreed, granted the MAR, and vacated defendant
Stubbs’s judgment and life sentence. Id. The trial court then resentenced defendant
Stubbs to a term of thirty years, applied time served, and ordered his immediate
release. Id. The State sought review by a petition for writ of certiorari. Id.
A panel of the Court of Appeals reversed the trial court’s order and remanded
to the trial court for reinstatement of the original 1973 sentence. Id. In doing so, it
“addressed whether it had subject matter jurisdiction to review the State’s appeal
from a trial court’s decision on a defendant’s MAR when the defendant prevailed in
the trial court.” Id. at 42, 770 S.E.2d at 75. In taking up this same question on appeal,
this Court first noted that “the General Assembly has specified when appeals relating
to MARs may be taken” by writ of certiorari, for instance, when “the time for appeal
has expired and no appeal is pending.” Id. at 42–43, 770 S.E.2d at 76 (quoting
N.C.G.S. § 15A-1422(c) (2014)). “[S]ubsection 15A-1422(c) does not distinguish
between a MAR when the State prevails below and a MAR under which the defendant
prevails.” Id. at 43, 770 S.E.2d at 76.
Accordingly, given that our state constitution authorizes
the General Assembly to define the jurisdiction of the
Court of Appeals, and given that the General Assembly has
given that court broad powers “to supervise and control the
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STATE V. ROBINSON
Newby, J., dissenting
proceedings of any of the trial courts of the General Court
of Justice,” [N.C.G.S.] § 7A-32(c), and given that the
General Assembly has placed no limiting language in
subsection 15A-1422(c) regarding which party may appeal
a ruling on an MAR, we hold that the Court of Appeals has
jurisdiction to hear an appeal by the State of an MAR when
the defendant has won relief from the trial court.
Id. A trial court may not unilaterally reduce sentences without being subjected to
appellate review. A trial court’s order on a MAR is subject to review regardless of the
prevailing party or subject matter. Significantly, this Court did not distinguish
between review of the trial court’s MAR ruling and any corresponding amended
J & C.
In State v. Bowden, 367 N.C. 680, 766 S.E.2d 320 (2014), defendant Bowden
unsuccessfully sought application of various credits to his life sentence at the trial
court through a petition for writ of habeas corpus and later following a MAR hearing
under N.G.G.S. § 15A-1420. Id. at 681–82, 766 S.E.2d at 321–22. Upon a second
remand from the Court of Appeals, the trial court granted defendant relief and
calculated and applied all of his credits to determine that defendant had served his
entire sentence. Id. at 682, 766 S.E.2d at 322. Notably, though ordering defendant’s
unconditional release, the trial court anticipatorily “stayed its order the following day
pending final appellate review.” Id. (emphasis added). This Court reversed,
recognizing that these credits have never applied toward the calculation of an
unconditional release date for a similarly situated inmate like Bowden serving a life
sentence.” Id. at 685–86, 766 S.E.2d at 324. Even though the trial court had ordered
defendant Bowden’s immediate release through a MAR, this Court reversed upon
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STATE V. ROBINSON
Newby, J., dissenting
review, and defendant “remain[ed] lawfully incarcerated.” Id. Like defendant Stubbs,
defendant Bowden received more than one round of appellate review, both with the
Court of Appeals and with this Court, even though he was twice denied relief by the
trial court and once granted relief by the trial court.
Here the 2012 RJA order including the corresponding amended J & C, has been
subjected to appellate review, has been determined to be the result of a
fundamentally flawed procedure, and has been vacated. A vacated trial court order
certainly carries no degree of finality and is void. See Robinson II, 368 N.C. at 597,
780 S.E.2d at 152.
It is ludicrous to say that defendant’s resentencing in the amended J & C can
stand alone when that resentencing could only legally occur based on the underlying
2012 RJA order. Certainly, the State sought review of defendant’s resentencing
through its petition for writ of certiorari when it sought review of the 2012 RJA order.
That order explicitly stated that, “having determined that Robinson is entitled to
appropriate relief as to [his RJA claims], . . . Robinson is entitled to have his sentence
of death vacated, and Robinson is resentenced to life imprisonment without the
possibility of parole.” The amended J & C simply effectuated this order. There is no
legal support for the holding that the State failed to appeal the amended J & C.
IV.
In its apparent eagerness to undermine defendant’s death sentence, the
majority opinion steps outside our time-honored judicial role of simply deciding the
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STATE V. ROBINSON
Newby, J., dissenting
case before us. Of the three novel theories presented, only one, the narrowest, has
four votes. These four justices hold that the State failed to seek judicial review of the
amended J & C when this Court allowed review of the 2012 RJA order. As with the
other two theories, there is no legal support for this position. There is no explanation
of how an amended J & C, which effectuated the 2012 RJA order can legally exist
apart from the 2012 RJA order. It does exist and is given substance purely by four
votes. The majority opinion’s extraordinary judicial activism is completely
unnecessary. This case should be controlled by our prior decision in Ramseur and
remanded to the trial court for a new RJA hearing. The majority opinion’s result
guarantees that the State will never have a fair hearing in court. The ultimate
damage to our jurisprudence and public trust and confidence in our judicial system
is yet to be determined. I dissent.
-34-
Justice ERVIN, dissenting
I am unable to join the Court’s decision to reinstate the trial court’s original
order and judgment sentencing defendant to a term of life imprisonment rather than
death based upon a determination that Judge Weeks’ order finding that defendant’s
race had been a significant factor in the imposition of his death sentence was entitled
to double jeopardy effect and that the State had not sought and was not entitled to
seek appellate review of the judgment that Judge Weeks entered in light of the
determination reflected in his order. On the contrary, I believe that the Court’s
holding that Judge Weeks’ “order resentencing [defendant] to life in prison was an
acquittal for purposes of double jeopardy” (1) fails to take the procedural context in
which that decision was made into account despite the fact that the double jeopardy-
related rules applicable to acquittals that occur before and after the initial verdict are
different and (2) implicitly vacates this Court’s 2015 order overturning Judge Weeks’
decision and remanding this case to the Superior Court, Cumberland County, State
v. Robinson, 368 N.C. 596, 780 S.E.2d 151 (2015), cert. denied, 137 S. Ct. 67, 196 L.
Ed. 2d 34 (2016), despite the fact that the State sought review of Judge Weeks’
decision in accordance with the applicable statutory provisions and prevailed before
this Court on procedural grounds. As a result, given my belief that the Court’s
decision is simply inconsistent with the relevant decisions of this Court and the
Supreme Court of the United States and with this Court’s statutory authority to
review decisions of the trial court in proceedings conducted pursuant to the Racial
STATE V. ROBINSON
Ervin, J., dissenting
Justice Act, I respectfully dissent from the Court’s decision and would, instead,
reverse the trial court’s order and remand this case to the Superior Court,
Cumberland County, for a hearing concerning the merits of defendant’s Racial Justice
Act claim on the basis of the logic set out in this Court’s decision in State v. Ramseur,
843 S.E.2d 106 (2020), and our 2015 order.
As an initial matter, the Court’s determination that Judge Weeks’ order
granting relief pursuant to the Racial Justice Act constituted a final acquittal for
double jeopardy purposes cannot be squared with the relevant decisions of the
Supreme Court, 1 which have stated that, in the event that a defendant is acquitted
following a jury verdict or a decision made at a bench trial, double jeopardy
considerations do not prevent the government from appealing the acquittal decision
given that an appellate reversal would simply reinstate the original verdict rather
than subject the defendant to a second trial. See United States v. Wilson, 420 U.S.
332, 344–45, 95 S. Ct. 1013, 1022, 43 L. Ed. 2d 232, 242 (1975). In view of the fact
that the effect of an appellate decision vacating Judge Weeks’ order and the related
judgment and remanding this case to the Superior Court, Cumberland County, for
further proceedings would, depending upon the result reached on remand, at most,
1 As this Court has previously stated, the double jeopardy protection inherent in
article I, section 19 of the state constitution affords the same protections to criminal
defendants as the double jeopardy provision of the Fifth Amendment to the Constitution of
the United States. State v. Oliver, 343 N.C. 202, 205, 470 S.E.2d 16, 18 (1996) (discussing
double jeopardy and N.C. Const. art. I, § 19).
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STATE V. ROBINSON
Ervin, J., dissenting
have the effect of reinstating the original jury verdict and the resulting death
sentence, I am not persuaded that Judge Weeks’ order and the related judgment were
entitled to preclusive effect or that the order and judgment must be reinstated.
In Wilson, the defendant was charged with converting union funds in order to
pay for his daughter’s wedding reception in violation of federal law. Id. at 333, 95 S.
Ct. at 1017, 43 L. Ed. 2d at 235–36. The government began its investigation into the
defendant’s alleged unlawful conduct in April 1968, concluded that investigation in
June 1970, and did not indict the defendant for another sixteen months, formally
charging him three days prior to the expiration of the applicable statute of
limitations. Id. at 333–34, 95 S. Ct. at 1017, 43 L. Ed. 2d at 235–36. The defendant
filed a pretrial motion seeking to have the indictment dismissed on the grounds that
the government’s delay in charging him had prejudiced his ability to obtain a fair
trial given that two defense witnesses—one of whom had died and the other of whom
was suffering from a terminal illness—would be unavailable to testify. Id. at 334, 95
S. Ct. at 1017, 43 L. Ed. 2d at 236. After the trial court denied the defendant’s
dismissal motion, the jury found the defendant guilty. Id. Following the return of
the jury’s verdict, the defendant filed several post-verdict motions in which he
reiterated his assertion that, among other things, the charge that had been lodged
against him should have been dismissed on the basis of preindictment delay. Id. At
that point, the district court reversed itself and dismissed the indictment that had
been returned against the defendant on the grounds that he had been subject to
-3-
STATE V. ROBINSON
Ervin, J., dissenting
unreasonable preindictment delay that had prejudiced his ability to obtain a fair trial.
Id. Although the government appealed from the trial court’s order, the United States
Court of Appeals for the Third Circuit dismissed the government’s appeal on the
grounds that the trial court’s dismissal decision constituted an acquittal that was
entitled to double jeopardy effect. Id. at 335, 95 S. Ct. at 1017–18, 43 L. Ed. 2d at
236–37. After granting certiorari, the Supreme Court reversed the Third Circuit’s
decision on the grounds that the government was entitled to appeal from the district
court’s dismissal order given that the challenged order was not entitled to preclusive
effect. 2 Id. at 352–53, 95 S. Ct. at 1026, 43 L. Ed. 2d at 246–47.
In rejecting the defendant’s argument that the Double Jeopardy Clause
precluded the government from appealing the district court’s dismissal order, the
Supreme Court recognized that “[t]he development of the Double Jeopardy Clause
from its common-law origins . . . suggests that it was directed at the threat of multiple
prosecutions, not at Government appeals, at least where those appeals would not
require a new trial.” Id. at 342, 95 S. Ct. at 1021, 43 L. Ed. 2d at 241. Thus, “where
there is no threat of either multiple punishment or successive prosecutions, the
Double Jeopardy Clause is not offended.” Id. at 344, 95 S. Ct. at 1022, 43 L. Ed. 2d
at 242. For that reason, prosecutorial appeals of adverse rulings noted after the
2The Supreme Court of the United States assumed, without deciding, that an order
dismissing a case based upon prejudicial preindictment delay would constitute an acquittal
for double jeopardy purposes. Wilson, 420 U.S. at 336, 95 S. Ct. at 1018, 43 L. Ed. 2d at 237.
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STATE V. ROBINSON
Ervin, J., dissenting
return of the jury’s verdict or the judge’s decision at the conclusion of a bench trial do
not implicate double jeopardy considerations because “reversal on appeal would
merely reinstate the jury’s verdict” without “offend[ing] the policy against multiple
prosecution.” Id. at 344–45, 95 S. Ct. at 1022, 43 L. Ed. 2d at 242. Simply put, the
“[c]orrection of [a post-verdict error of law by a trial judge] would not grant the
prosecutor a new trial or subject the defendant to the harassment traditionally
associated with multiple prosecutions.” Id. at 352, 95 S. Ct. at 1026, 43 L. Ed. 2d at
247. As a result, the Supreme Court held that, “when a judge rules in favor of the
defendant after a verdict of guilty has been entered by the trier of fact, the
Government may appeal from that ruling without running afoul of the Double
Jeopardy Clause,” id. at 352–53, 95 S. Ct. at 1026, 43 L. Ed. 2d at 247, and that, given
that the jury had returned a verdict convicting the defendant, the government’s
appeal from the district court’s order dismissing the indictment that had been
returned against the defendant could be entertained by the appellate courts without
placing the defendant in jeopardy multiple times for the same offense. Id. at 353, 95
S. Ct. at 1026–27, 43 L. Ed. 2d at 247 (stating that, “if [the defendant] prevails on
appeal, the matter will become final, and the Government will not be permitted to
bring a second prosecution against him for the same offense”). 3
3 The Supreme Court has reiterated its decision that the Government is entitled to
seek appellate review of a post-verdict ruling acquitting a defendant as long as such an appeal
does not subject the defendant to multiple prosecutions or punishments on multiple occasions
since Wilson. See, e.g., Smith v. Massachusetts, 543 U.S. 462, 467, 125 S. Ct. 1129, 1134, 160
L. Ed. 2d 914, 922–23 (2005) (stating that, “[w]hen a jury returns a verdict of guilty and a
-5-
STATE V. ROBINSON
Ervin, J., dissenting
Although this Court has not previously addressed the issue decided by the
Supreme Court in Wilson, the Court of Appeals has adopted an approach to this issue
that is consistent with the one that I believe to be appropriate. In State v. Scott, the
State appealed from the trial court’s order granting a post-verdict motion to dismiss
for insufficiency of the evidence. 146 N.C. App. 283, 285, 551 S.E.2d 916, 918 (2001),
rev’d on other grounds, 356 N.C. 591, 573 S.E.2d 866 (2002). In rejecting the
defendant’s contention that the State had no right to note an appeal from the trial
court’s dismissal order and that allowing the State’s appeal would result in a double
jeopardy violation, id. at 285–86, 551 S.E.2d at 918–19, the Court of Appeals began
by recognizing that, “[a]t common law, the State had no right to bring an appeal” and
could only be “authorized to do so by statute.” Id. at 285, 551 S.E.2d at 918. As a
general proposition, the State is entitled to pursue an appeal from an adverse trial
court decision “[u]nless the rule against double jeopardy prohibits further
prosecution,” including instances in which “there has been a decision or judgment
dismissing the criminal charges as to one or more counts.” N.C.G.S. § 15A-1445(a)(1)
(2019). In light of the fact that the trial court’s dismissal order constituted a decision
trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal,
the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury
verdict of guilty” (citing Wilson, 420 U.S. at 352–53, 95 S. Ct. at 1026, 43 L. Ed. 2d at 246–
47)); Evans v. Michigan, 568 U.S. 313, 329–30 n.9, 133 S. Ct. 1069, 1081 n.9, 185 L. Ed. 2d
124, 140 n.9 (2013) (stating that, “[i]f a court grants a motion to acquit after the jury has
convicted, there is no double jeopardy barrier to an appeal by the government from the court’s
acquittal, because reversal would result in reinstatement of the jury verdict of guilt, not a
new trial” (citing Wilson, 420 U.S. at 332, 95 S. Ct. at 1013, 43 L. Ed. 2d at 232)).
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Ervin, J., dissenting
or judgment dismissing criminal charges, the Court of Appeals concluded that “the
State [was] within its statutory authority to bring this appeal as long as it [did] not
violate the rule against double jeopardy,” Scott, 146 N.C. App. at 285, 551 S.E.2d at
918, and that the State’s appeal did not result in a double jeopardy violation because
“reversal would only serve to reinstate the verdict rendered by the jury,” with
“defendant [being] in no danger of re[-]prosecution [because] the appeal does not place
the defendant in double jeopardy.” Id. at 286, 551 S.E.2d at 918 (citing Wilson, 420
U.S. at 344–45, 95 S. Ct. at 1022–23, 43 L. Ed. 2d at 242). According to the Court of
Appeals, “[t]he emphasis of double jeopardy is on the possibility of [the] defendant
being subjected to a new trial—not whether the dismissal acts as a verdict of not
guilty”—and that, “[a]s long as [the] defendant would not be subjected to a new trial
on the issues, his double jeopardy rights have not been violated.” Id. at 286, 551
S.E.2d at 919. As a result, the Court of Appeals held that the State could lawfully
bring its appeal. Id.Assuming, for the purpose of discussion, that Judge Weeks’ decision to grant
defendant’s motion for appropriate relief by affording defendant relief pursuant to
the Racial Justice Act and to enter a judgment sentencing him to a term of life
imprisonment constituted an acquittal as that term is used in double jeopardy
jurisprudence, that decision was not unreviewable and double jeopardy was not
implicated because any appellate reversal of that decision would, at most, result in
the reinstatement of the defendant’s original sentence and would not subject
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Ervin, J., dissenting
defendant to a new trial. 4 All of the decisions upon which this Court relies in reaching
a different result involve either acquittals that occurred during or prior to, rather
than after, the return of initial jury or judicial verdicts convicting or acquitting the
defendant of the commission of a substantive criminal offense or sentencing the
defendant to death; determinations that the decision in defendant’s favor was not
entitled to double jeopardy effect at all; or holdings that a determination made on
direct appeal or in postconviction proceedings was entitled to double jeopardy effect
upon becoming final. Evans, 568 U.S. at 324, 133 S. Ct. at 1078, 185 L. Ed. 2d at 137(holding that the trial court’s erroneous ruling that the prosecution had failed to
prove the existence of an alleged element of the crime at defendant's trial that it was
not, in fact, required to prove was not subject to appellate review); Monge v.
California, 524 U.S. 721, 734, 118 S. Ct. 2246, 2253, 141 L. Ed. 2d 615, 628 (1998)
(refusing to afford double jeopardy effect to an appellate determination that a trial
court conclusion that the defendant had committed a “qualifying felony” for purposes
of California’s “three strikes and you’re out” law lacked sufficient evidentiary support
4 The fact that a refusal to afford Judge Week’s order double jeopardy effect will
require defendant to participate in a new hearing under the Racial Justice Act does not,
unlike the situation at issue in Arizona v. Rumsey, 467 U.S. 203, 211–12, 104 S. Ct. 2305,
2310, 81 L. Ed. 2d 164, 172 (1984), in which the “acquittal” that barred retrial occurred on
direct appeal from the trial court’s initial judgment rather than in a post-conviction
proceeding, does not, at least in my opinion, suffice to require that Judge Weeks’ order be
treated differently than any other postconviction acquittal, with there being no decision of
either this Court or the Supreme Court of which I am aware having reached such a result
and with the Supreme Court’s decision to remand for further proceedings in Bobby v. Bies,
556 U.S. 825, 837, 129 S. Ct. 2145, 2154, 173 L. Ed. 2d 1173, 1183 (2009), appearing to me to
conflict with the logic upon which the Court relies.
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STATE V. ROBINSON
Ervin, J., dissenting
on the grounds that this determination did not constitute an acquittal for double
jeopardy purposes); Poland v. Arizona, 476 U.S. 147, 157–57, S. Ct. 1749, 1757, 90 L.
Ed. 2d 123, 133 (1986) (holding that a new capital sentencing hearing may be held
when, in the course of a death-sentenced defendant’s direct appeal, the reviewing
court determines that, even though the evidence did not suffice to support the
submission of the sole aggravating circumstance upon which the sentencing judge
relied in sentencing the defendant to death, the record did contain sufficient evidence
tending to show the existence of an aggravating circumstance that the sentencing
judge erroneously found to be legally, rather than factually, inapplicable); Rumsey,
467 U.S. at 212, 104 S. Ct. at 2311, 81 L. Ed. 2d at 172 (holding that a trial court’s
decision at the defendant’s initial trial and capital sentencing hearing that no
aggravating circumstance existed and that the defendant was not death-eligible
under Arizona law was entitled to double jeopardy effect despite a decision made in
connection with the State’s cross-appeal that the record evidence did, in fact, support
a finding of the existence of an aggravating circumstance); Bullington v. Missouri,
451 U.S. 430, 446–47, 101 S. Ct. 1852, 1862, 68 L. Ed. 2d 270, 283–84 (1981) (holding
that the jury’s determination at the defendant’s capital sentencing hearing that the
defendant should be sentenced to life imprisonment rather than death was entitled
to double jeopardy effect despite a decision by the trial court allowing a post-verdict
motion and awarding the defendant a new trial on the issue of guilt); Burks v. United
States, 437 U.S. 1, 17–18, 98 S. Ct. 2141, 2150–51, 57 L. Ed. 2d 1, 13 (1978) (holding
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Ervin, J., dissenting
that a final appellate decision that the record evidence did not suffice to support the
defendant’s conviction was entitled to double jeopardy effect and precluded a retrial);
Morrison v. United States, 429 U.S. 1, 3–4, 97 S. Ct. 24, 26, 50 L. Ed. 2d 1, 4 (1976)
(holding that an acquittal at a bench trial has the same effect as an acquittal by a
jury for double jeopardy purposes); Fong Foo v. United States, 369 U.S. 141,143, 82
S. Ct. 671, 672, 7 L. Ed. 2d 629, 631 (1962) (holding that a trial court’s determination
during the course of the defendant’s trial that the defendant should be acquitted on
a legally unsupportable ground was entitled to double jeopardy effect). Simply put,
the Court has not cited any decision of either the Supreme Court or this Court holding
that a postconviction acquittal of the type at issue here is subject to preclusive effect
unless and until that decision has become final at the conclusion of the process of
appellate review, and I have been unable to find any such decision in the course of
my own research. As a result, I feel compelled to conclude that the Court’s double
jeopardy analysis, which relies upon general statements of double jeopardy
jurisprudence that were made in a procedural context that is completely different
from the one that is present here, is fundamentally flawed.
In addition, the Court fails to recognize that essentially the same double
jeopardy argument that it now finds persuasive was presented to this Court during
the proceedings that led to the entry of our 2015 order, from which defendant
unsuccessfully sought relief from the Supreme Court and which has, given the
absence of such relief, become final. I am unable to read our 2015 order to vacate
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STATE V. ROBINSON
Ervin, J., dissenting
Judge Weeks’ order and to remand this case to the Superior Court, Cumberland
County, as anything other than a rejection of defendant’s double jeopardy claim in
light of the fact that no such remand would have been permissible had Judge Weeks’
order and the related judgment been entitled to double jeopardy effect. As a result,
it would appear to me that defendant’s double jeopardy claim is, in addition to lacking
support in our jurisprudence relating to that constitutional provision, barred by the
law of the case doctrine. Hayes v. City of Wilmington, 243 N.C. 525, 536, 91 S.E.2d
673, 681–82 (1956) (stating that, “when an appellate court passes on a question and
remands the cause for further proceedings, the questions there settled become the
law of the case, both in subsequent proceedings in the trial court and on subsequent
appeal, provided the same facts and the same questions which were determined in
the previous appeal are involved in the second appeal”) (citations omitted).
In apparently holding that our 2015 order is a nullity, the Court concludes that
the State was not entitled to seek appellate review of Judge Weeks’ order and the
related judgment and that, by failing to list the judgment that Judge Weeks entered
in conjunction with his order concluding that defendant was entitled to relief from
his death sentence pursuant to the Racial Justice Act as one of the determinations of
which it sought review in the certiorari petition that led to the entry of this Court’s
2015 order, the State failed to properly seek and obtain review of Judge Weeks’
sentencing decision. I am not persuaded by the Court’s reasoning, which overlooks
the relevant statutory provisions and the fundamental reason for which the State
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STATE V. ROBINSON
Ervin, J., dissenting
sought, and the Court granted further review of Judge Weeks’ order granting relief
to defendant on the basis of his Racial Justice Act claim and his decision to resentence
defendant to life imprisonment.
The North Carolina Constitution provides that this Court “shall have
jurisdiction to review upon appeal any decision of the courts below, upon any matter
of law or legal inference.” N.C. Const. art. IV, § 12(1) (emphasis added). While certain
statutes generally limit the extent to which this Court is entitled to review the
decisions of lower courts, “it is beyond question that a statute cannot restrict this
Court’s constitutional authority” to supervise the activities of North Carolina’s lower
courts. State v. Ellis, 361 N.C. 200, 205, 639 S.E.2d 425, 428 (2007). For that reason,
“[t]his Court will not hesitate to exercise its rarely used general supervisory authority
when necessary to promote the expeditious administration of justice.” State v.
Stanley, 288 N.C. 19, 26, 215 S.E.2d 589, 594 (1975). In apparent recognition of our
constitutional supervisory authority, the General Assembly has enacted N.C.G.S. §
7A-32(b), which provides that this Court “has jurisdiction . . . to issue the prerogative
writs, including . . . certiorari, . . . in aid of its own jurisdiction or in exercise of its
general power to supervise and control the proceedings of any of the other courts of
the General Court of Justice.” N.C.G.S. § 7A-32(b) (2019). This Court has utilized its
general supervisory authority to hear appeals concerning motions for appropriate
relief despite the absence of any statutory authority to do so and, in some instances,
in the face of a statutory prohibition against appellate review of specific types of lower
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STATE V. ROBINSON
Ervin, J., dissenting
court orders or decisions. See, e.g., State v. Todd, 369 N.C. 707, 709–10, 799 S.E.2d
834, 837 (2017); Ellis, 361 N.C. at 200, 639 S.E.2d at 425. As a result, this Court may
well have had the authority to review Judge Weeks’ order and the related judgment
as a constitutional matter.
I see no need for further discussion of the Court’s constitutional supervisory
authority in this case, however, given that there is explicit statutory authority for the
Court’s decision to grant a certiorari petition authorizing review of Judge Weeks’
original order. The Racial Justice Act expressly provided that “the procedures and
hearing on the motion” seeking relief from a defendant’s sentence on the basis that
racial discrimination played a significant role in the decision to seek or impose the
death penalty “shall follow and comply with” a number of statutory provisions
governing the litigation of motions for appropriate relief, including “[N.C.G.S. §] 15A-
1422.” North Carolina Racial Justice Act, S.L. 2009-464, § 1, 2009 N.C. Sess. Laws
1213, 1215 (codified at N.C.G.S. § 15-2012(c) (2009)) (repealed 2013). Subsection 15A-
1422(c) provides, in turn, that “[t]he court’s ruling on a motion for appropriate relief”
is subject to review “[i]f the time for appeal has expired and no appeal is pending, by
writ of certiorari.” N.C.G.S. § 15A-1422(c) (2019). 5 Thus, the General Assembly
5 The amended Racial Justice Act provided that a defendant’s Racial Justice Act claim
“shall be raised by the defendant . . . in postconviction proceedings pursuant to Article 89 of
Chapter 15A of the General Statutes.” An Act to Amend Death Penalty Procedures, S.L.
2012-136, § 3, 2012 N.C. Sess. Laws 471, 472 (enacting N.C.G.S. § 15A-2011(f)(1) (Supp.
2012)) (repealed 2013). Section 15A-1422 falls within Article 89 of Chapter 15A.
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STATE V. ROBINSON
Ervin, J., dissenting
expressly granted this Court the authority to review trial court decisions granting or
denying relief pursuant to the Racial Justice Act through the use of its certiorari
jurisdiction, which is the exact procedural vehicle that the State utilized in seeking
and obtaining review of Judge Weeks’ order. 6 As a result, I am further compelled to
conclude that the Court’s apparent determination that Judge Weeks’ order granting
relief pursuant to the Racial Justice Act was not subject to appellate review is
erroneous.
Finally, I am equally unpersuaded by the Court’s conclusion that the State’s
failure to list the judgment that Judge Weeks entered based upon his decision to
grant defendant’s request for relief from his death sentence pursuant to the Racial
Justice Act in the certiorari petition that led to the entry of our 2015 order deprived
us of any authority to vacate Judge Weeks’ order and the related judgment following
appellate review. Aside from the fact that no meaningful request for appellate review
of the underlying judgment could be taken apart from review of the order granting
defendant’s request for relief from his death sentence under the Racial Justice Act
6 The fact that the General Assembly did not grant the State an appeal as of right
from orders granting relief pursuant to the Racial Justice Act, upon which the Court places
some emphasis in its opinion, has no bearing upon the proper resolution of this case given
the General Assembly’s decision to expressly authorize appellate review of such orders
pursuant to N.C.G.S. § 15A-1422(c)(3) and former N.C.G.S. § 15A-2012(c). Similarly, the fact
that N.C.G.S. § 15A-1422(c)(3) makes no mention of proceedings conducted pursuant to the
Racial Justice Act is irrelevant to the issue of whether the State was entitled to seek the
issuance of a writ of certiorari authorizing review of Judge Weeks’ order given that the use
of the procedure authorized by N.C.G.S. § 15A-1422(c) was expressly imported into Racial
Justice Act proceedings by former N.C.G.S. § 15A-2012(c).
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STATE V. ROBINSON
Ervin, J., dissenting
and the fact that the State’s certiorari petition cannot be understood as anything
other than a challenge to the correctness of both Judge Weeks’ order and the
judgment that was entered in reliance upon that order, the Court’s decision, which
seems to me to be overly technical for that reason alone, is inconsistent with the
relevant statutory provisions governing review of trial court decisions made pursuant
to the Racial Justice Act. According to N.C.G.S. § 15A-1422(c), which specifically
provides for review of “[t]he court’s ruling on a motion for appropriate relief,” the
order or decision that is subject to further review is the “ruling on a motion for
appropriate relief” rather than any remedial judgment that the trial court might have
entered for the purpose of effectuating its decision to afford relief to a defendant. I
have a great deal of difficulty seeing how the General Assembly could have intended
for this logic to permit review of the order entered in connection with the allowance
of a motion for appropriate relief while requiring a separate request for review of the
judgment that the trial court entered based upon the underlying order. The
interpretation of N.C.G.S. § 15A-1422(c) that I believe to be appropriate is fully
consistent with our certiorari-related jurisprudence, which brings the entire record
forward for review and recognizes the fundamental principle that the trial court’s
judgment flows logically from the proceedings that led to its entry. State v. Moore,
258 N.C. 300, 302, 128 S.E.2d 563, 565 (1962); In re Burton, 257 N.C. 534, 545, 126
S.E.2d 581, 589 (1962). As a result, I believe that, in light of the language in which
the relevant statutory provisions are couched and the effect of our decision to issue a
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STATE V. ROBINSON
Ervin, J., dissenting
writ of certiorari authorizing review of Judge Weeks’ order, the fact that the State
failed to expressly seek review of the judgment that was entered on the basis of Judge
Weeks’ order in the certiorari petition that led to the entry of our 2015 order does not
have the effect of precluding further review of that judgment. 7
I do not, by dissenting from the Court’s decision in this case, wish to be
understood as expressing any doubt about the fundamental importance of the goals
sought to be achieved by the Racial Justice Act or the pressing need to completely
eradicate racial and all other forms of odious discrimination from our system of
justice, to cast any doubt upon the correctness of our recent decision in Ramseur, or
to express any opinion concerning the extent to which the Court did or did not
correctly grant relief from Judge Weeks’ order in 2015, which was a decision in which
I did not participate. However, it seems clear to me that a trial court order granting
relief pursuant to the Racial Justice Act and the entry of a related judgment of life
imprisonment is not an unreviewable decision entitled to double jeopardy protection,
with there being no support for a contrary result in the relevant decisions of this
Court or the Supreme Court or in the statutory provisions governing our review of
lower court decisions in criminal cases. As a result, I am unable to join the Court’s
7 The majority’s reference to State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542,
543 (2010), has no bearing upon a proper analysis of this case given that the manner in which
an appeal must be taken from an order denying a motion to suppress evidence differs from
the manner in which appellate review of orders granting or denying relief pursuant to the
Racial Justice Act must be sought. See N.C.G.S. § 15A-979 (b) (2019) (stating that “[a]n order
finally denying a motion to suppress evidence may be reviewed upon an appeal from a
judgment of conviction, including a judgment entered upon a plea of guilty”).
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STATE V. ROBINSON
Ervin, J., dissenting
decision that defendant is entitled to have the sentence of life imprisonment without
the possibility of parole that was imposed upon him as the result of Judge Weeks’
order to grant defendant relief pursuant to the Racial Justice Act reinstated and
would, instead, hold, for the reasons set forth in Ramseur, that the trial court erred
by dismissing defendant’s Racial Justice Act claim based upon the General
Assembly’s decision to repeal that legislation and that this case should be remanded
to the Superior Court, Cumberland County, for further proceedings not inconsistent
with this opinion, including the hearing on the merits contemplated in our 2015 order.
Justice DAVIS joins in this dissenting opinion.
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