State v. David Raeford Tripp

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-795
No. COA21-688
Filed 6 December 2022
Brunswick County, No. 18 CRS 681
STATE OF NORTH CAROLINA
v.
DAVID RAEFORD TRIPP, JR.
Appeal by Defendant from order entered 28 June 2021 by Judge Jason C.
Disbrow in Brunswick County Superior Court. Heard in the Court of Appeals 14
September 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Nicholas R.
Sanders, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Zimmer, for Defendant-Appellant.
WOOD, Judge.
¶1 Under the principles of double jeopardy and due process, may Defendant be
prosecuted for murder twenty-one years after his conviction for felony child abuse
now that the child has succumbed to his injuries? We hold that he may.
I. Background
¶2 On 12 April 1997, David, a fifteen-month-old child, was taken to the Columbia
Brunswick Hospital by ambulance. The emergency room doctor “observed that the
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child was not breathing, that he had a head fracture, abnormal pupil response, facial
bruising, deformity on an arm and a leg, and a burned area in the diaper region, and
that the child was having seizures.” State v. Noffsinger, 137 N.C. App. 418, 419, 528
S.E.2d 605, 607 (2000). A pediatrician who treated David’s injuries determined that
he suffered from Battered Child Syndrome based on her “physical findings . . . and
not finding a sufficient explanation for any of the injuries as had been described.”
According to the pediatrician, David would “never” be able to live independently and
that “the entire part of his brain that involves learning, thinking, maturing, [and]
developing normally ha[d] been destroyed.” David barely survived and was left
unable to function on his own without assistance.
¶3 In 1998, David Raeford Tripp, Jr. (“Defendant”) entered an Alford plea to four
counts of felony child abuse. Defendant was the boyfriend of the abused child’s
mother, Robin Noffsinger, who was also indicted for felony child abuse charges as a
result of the child’s injuries. David suffered severe fractures to his skull, spine, limbs,
and ribs; second- and third-degree burns to his buttocks and genitals; missing hair;
and multiple bruises, cuts, and puncture wounds over his body, among others. The
burns resulted in permanent nerve damage, and at the time of the plea, David was
living in a long-term care home for children.
¶4 As part of the plea agreement, the State agreed to dismiss an indictment for
malicious maiming, a Class C felony. The parties also agreed that the
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State will not use Defendant’s guilty plea in either a
direct or impeaching manner in any subsequent
prosecution of Defendant arising out of the acts and
transactions that form the basis of the charges to which the
Defendant is pleading guilty except the State may use
Defendant’s conviction herein as allowed by Rule 609.
Defendant reserves the right to raise a defense of
former or double jeopardy in any subsequent prosecution of
Defendant based on the acts or transactions forming the
basis of the charges to which Defendant is pleading guilty.
The State reserves the right to proceed against
the Defendant at any later date for any and all criminal
charges for which the law allows.
¶5 The trial court sentenced Defendant to active sentences for three counts of
felony child abuse and a suspended sentence on the fourth count. He completed his
sentences in 2008. David lived a disabled life for almost twenty-one years before
allegedly succumbing to his injuries and dying in 2018. The State now seeks to
prosecute Defendant for murder.
¶6 Defendant was indicted for first-degree murder on 21 May 2018. Because the
indictment related to Defendant’s previous offenses, he moved to dismiss the murder
charge, alleging prosecution for first-degree murder would violate his right to be free
from double jeopardy and his right to due process. The trial court denied his motion
to dismiss on 28 June 2021. Defendant appealed this denial by petition for writ of
certiorari. On 26 August 2021, this Court granted Defendant’s petition for writ of
certiorari for the limited purpose of reviewing the trial court’s denial of Defendant’s
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Motion to Dismiss.
II. Jurisdiction
¶7 Because the denial of Defendant’s motion to dismiss preceded final judgment
on the merits, this appeal is interlocutory. Waters v. Qualified Pers., Inc., 294 N.C.
200, 207, 240 S.E.2d 338, 343 (1978). We may properly hear interlocutory appeals
upon writ of certiorari. N.C. Gen. Stat. § 15A-1444(g) (2021). “Rule 21 of our
appellate rules provides that a ‘writ of certiorari may be issued in appropriate
circumstances by either appellate court to permit review of the judgments and orders
of trial tribunals when . . . no right of appeal from an interlocutory order exists.’ ”
Rauch v. Urgent Care Pharmacy, Inc., 178 N.C. App. 510, 515, 632 S.E.2d 211, 216
(2006) (quoting N.C. R. App. P. 21(a)(1)). As this Court has previously stated, “the
consequences of rejecting Defendant’s double jeopardy argument are surely serious.”
State v. Smith, 267 N.C. App. 364, 367, 832 S.E.2d 921, 925 (2019). Defendant filed
a Petition for Writ of Certiorari on 29 July 2021. We allowed the petition on 26
August 2021.
III. Standard of Review
¶8 We review “the trial court’s denial of a motion to dismiss de novo.” State v.
Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). Likewise, we review
“conclusions of law pertaining to a constitutional matter de novo.” State v. Bowditch,
364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010).
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IV. Double Jeopardy
¶9 “No person shall . . . be subject for the same offense to be twice put in jeopardy
of life or limb . . . .” U.S. Const. amend. V.
¶ 10 This right against double jeopardy provides several protections. “It protects
against a second prosecution for the same offense after acquittal. It protects against
a second prosecution for the same offense after conviction. And it protects against
multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711,
717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969). We address the second of
these protections as it is undisputed that Defendant’s prior felony child abuse
convictions and the current first-degree murder indictment arise out of the same
incident that occurred in 1997.
¶ 11 Determining if a second prosecution is for the same offense, the U.S. Supreme
Court relies on the Same-Elements Test of Blockburger v. United States, 284 U.S.
299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). United States v. Dixon, 509 U.S. 688, 696,
113 S. Ct. 2849, 2856, 125 L. Ed. 2d 556, 568 (1993). Two offenses for the same
conduct are considered the same offense under this test unless “each offense contains
an element not contained in the other.” Id. Hence, lesser-included and greater
offenses are treated as the same. Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct. 2221,
2227, 53 L. Ed. 2d 187, 196 (1977). For example, a contempt prosecution for the
disruption of judicial business and a subsequent prosecution for the criminal assault
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that was part of the disruption fail the Same-Elements Test “because the contempt
offense did not require the element of criminal conduct, and the criminal offense did
not require the element of disrupting judicial business.” Dixon, 509 U.S. at 697, 113
S. Ct. at 2856, 125 L. Ed. 2d at 568. Thus, both offenses may be prosecuted without
violating the Double Jeopardy Clause.
¶ 12 Our State’s felony murder rule allows for the conviction of first-degree murder
when a victim is killed “in the perpetration or attempted perpetration of any arson,
rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or
attempted with the use of a deadly weapon.” State v. Watson, 277 N.C. App. 314,
2021-NCCOA-186, ¶ 23 (quoting N.C. Gen. Stat. § 14-17). At the time of Defendant’s
original sentencing in 1997, a non-parent committed felony child abuse when the
“person providing care to or supervision of a child less than 16 years of age . . .
intentionally inflicts any serious physical injury upon or to the child or . . .
intentionally commits an assault upon the child which results in any serious physical
injury.” N.C. Gen. Stat. § 14-318.4(a) (1997). The State concedes and we agree that,
under the Same-Elements Test, Defendant’s conviction of felony child abuse appears
on its face to be a lesser-included offense of felony murder and should be treated as
the same offense unless an exception applies. We now consider the exceptions.
¶ 13 One exception to the general prohibition of placing individuals in double
jeopardy would have this Court uphold the prosecution of a greater- or lesser-included
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offense if our legislature specifically intends to treat the offense at issue as a separate
offense from others. The U.S. Supreme Court illustrated this exception in Missouri
v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535, 542 (1983) when
it upheld the prosecution of both robbery and armed criminal action. Though one
crime contained the same elements as that of the other such that prosecution for both
generally ought to have been prohibited, the Court found no error with the
prosecution because the legislature provided that “[t]he punishment imposed
pursuant to this subsection shall be in addition to any punishment provided by law
for the crime committed by, with, or through the use, assistance, or aid of a dangerous
or deadly weapon.” Hunter, 459 U.S. at 362, 103 S. Ct. at 676, 74 L. Ed. 2d at 539.
Similarly, this Court has held “[w]hen a defendant is tried under two different
statutes for the same conduct, ‘the amount of punishment allowable under the double
jeopardy clause . . . is determined by the intent of the legislature.’ ” State v.
Barksdale, 237 N.C. App. 464, 473, 768, S.E.2d 126, 132 (2014) (quoting State v.
Freeland, 316 N.C. 13, 21, 340 S.E.2d 35, 39 (1986)).
¶ 14 This legislative intent exception has only ever been utilized with concurrent
sentencing and not subsequent prosecutions as is the case here. Though our
legislature identifies felony child abuse and murder as separate crimes “even when
both offenses arise out of the same conduct,” State v. Elliott, 344 N.C. 242, 278, 475
S.E.2d 202, 218 (1996), we refrain, in this case, from considering whether the
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legislature’s authorization to prosecute a single occurrence as two distinct crimes
applies to a subsequent prosecution scenario when a more established exception
exists.
¶ 15 The more established exception which applies in this case is found in Diaz v.
United States. 223 U.S. 442, 449, 32 S. Ct. 250, 251, 56 L. Ed. 500, 503 (1912). Under
the Diaz Exception, a defendant subsequently may be prosecuted for a separate
offense if a requisite element for that offense was not an element of the offense
charged during the defendant’s prior prosecution. Id. For example, as in Diaz, a
defendant convicted of assault and battery may subsequently be tried for murder if
the victim later dies from his injuries. Id.¶ 16 Here, the State could not have prosecuted Defendant for murder in 1998
because the abused child, David, had not yet died. To be convicted of murder, one
must be proven guilty of “(1) the unlawful killing, (2) of another human being, (3)
with malice.” State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (citing N.C.
Gen. Stat. § 14-17). It was not until David died in 2018, allegedly from his injuries,
that the missing element necessary to pursue a murder indictment manifested. This
scenario triggers the Diaz Exception. Where the perpetrator in Diaz was prosecuted
for assault and battery before the victim’s death and for murder after the victim’s
death, Defendant here was prosecuted for felonious child abuse before the victim’s
death and is now being prosecuted for murder after the victim’s death.
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¶ 17 Notwithstanding Defendant’s exposure to prosecution under the federal
scheme, Defendant asks us to consider whether our State affords greater protection
from double jeopardy than the U.S. Constitution as applied to the facts of this case.
Generally, States are free to grant greater protections to its citizens than afforded
under the U.S. Constitution. State v. Jackson, 348 N.C. 644, 648, 503 S.E.2d 101, 103
(1998). Accordingly, Defendant urges this Court to adopt the added protection of the
Same Conduct Test used in the U.S. Supreme Court case of Grady v. Corbin. Under
this test, the Double Jeopardy Clause stands as a bar against “a subsequent
prosecution if, to establish an essential element of an offense charged in that
prosecution, the government will prove conduct that constitutes an offense for which
the defendant has already been prosecuted.” Grady v. Corbin, 495 U.S. 508, 510, 110
S. Ct. 2084, 2087, 109 L. Ed. 2d 548, 557 (1990). The U.S. Supreme Court later
overturned this test in United States v. Dixon. 509 U.S. 688, 704, 113 S. Ct. 2849,
2860, 125 L. Ed. 2d 556, 573 (1993). In Dixon, the Court ruled that the test “is wholly
inconsistent with earlier Supreme Court precedent and with the clear common-law
understanding of double jeopardy.” Id. Citing the Court’s reasoning in Dixon, the
North Carolina Supreme Court refused to adopt it. State v. Gay, 334 N.C. 467, 490,
434 S.E.2d 840, 853 (1993). Bound by these precedents, we must not adopt the Same
Conduct Test here. See Cannon v. Miller, 313 N.C. 324, 324, 327 S.E.2d 888, 888
(1985) (stating this Court lacks authority to overrule decisions of our Supreme Court).
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¶ 18 Defendant also urges this Court not to apply the Diaz Exception to our State’s
tradition of prohibiting double jeopardy. Here, too, the North Carolina Supreme
Court has spoken. State v. Meadows fully recognizes the Diaz Exception as applied
to our State’s application of the principles barring double jeopardy. 272 N.C. 327,
331, 158 S.E.2d 638, 641 (1968). In Meadows, the defendant pleaded guilty to
felonious assault before the victim died. Id. at 331, 158 S.E.2d at 640. After the
victim died, the State sought to prosecute the defendant for murder. Id. Our
Supreme Court cited Diaz in allowing the prosecution. Id. at 331, 158 S.E.2d at 641.
¶ 19 Defendant points out that Meadows was decided before our State disposed of
the common-law year-and-a-day rule. See State v. Vance, 328 N.C. 613, 616-19, 403
S.E.2d 495, 498-99 (1991) (outlining the history of the year-and-a-day rule before
abrogating it). Further, our legislature has not enacted a statute of limitations for
the prosecution of felonies. State v. Johnson, 275 N.C. 264, 271, 167 S.E.2d 274, 279
(1969). Yet, these conditions do not affect this analysis of double jeopardy protections.
Our legislature authorizes the prosecution of felonies years after their commission,
and our constitutional safeguards permit it. See State v. Barnett, 223 N.C. App. 450,
459, 734 S.E.2d 130, 137 (2012) (exampling a felony conviction over twenty-five years
after the offense).
V. Substantive Due Process
¶ 20 In the absence of double jeopardy protection, the year-and-a-day rule, or an
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applicable statute of limitation, Defendant calls upon the aid of substantive due
process to contend that it is a violation of his constitutional rights to prosecute him
for first-degree murder twenty-one years after being convicted of felony child abuse
for the same act. We are unpersuaded.
¶ 21 Substantive due process developed to “prevent[] the government from engaging
in conduct that shocks the conscience or interferes with rights implicit in the concept
of ordered liberty.” State v. Womble, 277 N.C. App. 164, 2021-NCCOA-150, ¶ 79
(quoting State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998)). This
doctrine arose from the Fourteenth Amendment of the U.S. Constitution and has been
interpreted to exist within our State’s constitutional variant—the Law of the Land
Clause. Id. at ¶¶ 79, 82.
¶ 22 The U.S. Supreme Court has “decline[d] . . . to hold that the Due Process Clause
provides greater double-jeopardy protection than does the Double Jeopardy Clause.”
Sattazahn v. Pennsylvania, 537 U.S. 101, 116, 123 S. Ct. 732, 742, 154 L. Ed. 2d 588,
602 (2003). Since we hold that the subsequent prosecution of Defendant is permitted
under the U.S. Constitution’s Double Jeopardy Clause, we likewise hold that it does
not violate the Due Process Clause of the Fourteenth Amendment. We now turn our
attention to our State’s Law of the Land Clause.
¶ 23 Article I, Section 19, of our State’s Constitution reads,
No person shall be taken, imprisoned, or disseized of his
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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. No person shall be denied the equal
protection of the laws; nor shall any person be subjected to
discrimination by the State because of race, color, religion,
or national origin.
“The term ‘law of the land’ as used in Article I, Section 19, of the Constitution of North
Carolina, is synonymous with ‘due process of law’ as used in the Fourteenth
Amendment to the Federal Constitution.” In re Moore, 289 N.C. 95, 98, 221 S.E.2d
307, 309 (1976). We note, however, that the U.S. Supreme Court’s interpretation of
the Due Process Clause is “not controlling[] authority for interpretation of the Law of
the Land Clause.” Singleton v. N.C. HHS, ___ N.C. App. ___, 2022-NCCOA-412, ¶ 29
(quoting Evans v. Cowan, 132 N.C. App. 1, 6, 510 S.E.2d 170, 174 (1999)). For
instance, “[o]ur Supreme Court has read our Law of the Land Clause to provide
greater protection than the Due Process Clause of the Fourteenth Amendment.”
Womble, 277 N.C. at ¶ 82. It protects “against arbitrary legislation, demanding that
the law shall not be unreasonable, arbitrary or capricious, and that the law be
substantially related to the valid object sought to be obtained.” State v. Joyner, 286
N.C. 366, 371, 211 S.E.2d 320, 323 (1975).
¶ 24 Defendant does not cite to a specific law that offends the doctrine of substantive
due process but asserts generally that Defendant’s “right to due process would be
violated if he is forced to pay his debt to society twice.” To clarify, the State does not
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seek to prosecute Defendant once more for the crime of felony child abuse. Today, it
seeks his prosecution for the crime of first-degree murder. Perhaps Defendant’s
“debt” for felony child abuse has been paid, but we look to whether a potential “debt”
for murder is due. We therefore conclude the trial court’s denial of Defendant’s
Motion to Dismiss does not violate Defendant’s fundamental rights as protected
under the doctrine of substantive due process.
VI. Conclusion
¶ 25 The Diaz Exception permits the subsequent prosecution of a greater-included
offense if a fact necessary for that offense was not present during Defendant’s prior
prosecution. We hold that the Diaz Exception applies to the facts of this case and
that substantive due process allows for the prosecution of Defendant for first-degree
murder. The trial court’s denial of Defendant’s motion to dismiss is affirmed.
AFFIRMED.
Judges HAMPSON and GRIFFIN concur.