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North Carolina v. Brunson11/21/1989
The order the State is appealing dismissed its warrant charging defendant with impaired driving on the ground that it would twice put him in jeopardy for the same offense in violation of the guarantees contained in Article I, Sec. 19 of the North Carolina Constitution and the Fifth Amendment of the United States Constitution. That there was an earlier prosecution for the same offense which was voluntarily dismissed by the District Attorney because of the absence of the State's witnesses is not questioned; the only question is whether jeopardy attached in it. We hold that it did not and vacate the order.
The facts pertinent to this question follow: On 5 May 1987 in the District Court of Pasquotank County the State charged defendant with two misdemeanors within its original jurisdiction -- impaired driving in violation of G.S. 20-138.1; and leaving the scene of an accident involving property damage without providing the required information in violation of G.S. 20-166. Our District Courts do not have juries and in criminal cases misdemeanors are tried to the judge with defendants having a right to a trial de novo in the Superior Court before a jury if convicted. The case was scheduled to be tried on 20 July 1987 and that morning between 9:30 and 10:00 o'clock when the Assistant District Attorney prosecuting the docket called the calendar to ascertain what defendants were there, which ones were represented by counsel, and what pleas would be submitted defendant stated that he would plead not guilty and needed a continuance because the lawyer he wanted to hire had to be elsewhere that day. The court denied the motion to continue and defendant then signed a waiver of counsel and waited in court the rest of the day for the call of his case. Shortly after 5 o'clock that afternoon the case was called for trial, the charges were read to him, and he pled "not guilty" to each charge. Immediately thereafter, before any witnesses were sworn or any evidence presented, the Assistant District Attorney moved for a continuance on the ground that some essential witnesses for the State were not there. Judge Chaffin denied the motion, stating that he had denied defendant's motion earlier and the District Attorney could either try the case or dismiss it. The District Attorney dismissed the case, but immediately had new warrants issued for the same charges. Defendant moved to dismiss the new charges on the ground that he had been placed in jeopardy on the charges in the earlier proceeding. Judge Beaman found facts essentially as above stated, but denied the motion because in the prior proceeding no witnesses were sworn and no evidence was presented. In the bench trial that followed defendant was acquitted of leaving the accident scene and convicted of impaired driving. The conviction was appealed to the Superior Court where defendant again moved to dismiss on the constitutional ground asserted earlier. In addition to the facts stated above, in granting the motion Judge Small also found that in the former proceeding defendant was duly arraigned and the charges were dismissed because of the unavailability of the witnesses and he concluded that jeopardy attached when the District Court Judge ordered the State to either try the case or dismiss it.
When jeopardy attaches in a criminal prosecution before a jury is well established. It attaches when a defendant is placed on trial (1) on a valid indictment or information; (2) before a court of competent jurisdiction; (3) after arraignment or its waiver; (4) after plea; and (5) when a competent jury has been impaneled and sworn. State v. Shuler, 293 N.C. 34, 2
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