The defendant in State v. Greenfield, No. COA23-597 (N.C. Ct. App. Feb. 19, 2025), argued the trial court erred by admitting evidence and allowing argument about an attempted armed robbery charge for which he had previously been acquitted. The Court of Appeals posited that evidence is inadmissible under the Double Jeopardy Clause only when it falls within the scope of the collateral estoppel doctrine, which precludes relitigation of an issue of fact previously determined by a final judgment. The Court of Appeals concluded that the trial court did not err by failing to intervene in the closing argument here, but its formulation of the rule begs the question: under what circumstances will double jeopardy require the exclusion of evidence? This post attempts to answer that question.
Double Jeopardy
The Fifth Amendment of the United States Constitution provides that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend V. In Benton v. Maryland, 395 U.S. 784, 794 (1969), the United States Supreme Court held the Double Jeopardy Clause is incorporated in the due process guarantee of the Fourteenth Amendment and hence is applicable to the states. The North Carolina Constitution contains no double jeopardy provision. State v. Rambert, 341 N.C. 173, 175 n.1 (1995). Even before incorporation, however, the North Carolina Supreme Court found comparable protections in the common law and in the “law of the land” clause of the state constitution. See State v. Crocker, 239 N.C. 446, 449 (1954).
The doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445 (1970). “Under the doctrine of collateral estoppel, an issue of ultimate fact, once determined by a valid and final judgment, cannot again be litigated between the same parties in any future lawsuit.” State v. Edwards, 310 N.C. 142, 145 (1984). The “determinative factor is not the introduction of the same evidence,” but rather whether it is necessary to a later prosecution that the jury find against the defendant on an issue upon which the first jury found in his favor. Id. Collateral estoppel may thus preclude a subsequent prosecution. See G.S. 15A-954(a)(7) (dismissal required when essential issue was previously decided in defendant’s favor); State v. Safrit, 145 N.C. App. 541, 552 (2001) (G.S. 15A-954(a)(7) codifies collateral estoppel).
Exclusionary Rules
The admissibility of evidence is arguably a different issue. In Dowling v. United States, 493 U.S. 342 (1990), the United States Supreme Court held that the defendant’s prior acquittal of charges arising from a burglary and attempted robbery did not preclude the government from introducing evidence of those crimes in the defendant’s subsequent prosecution for bank robbery. As the Supreme Court explained, the admissibility of prior bad acts evidence under Evidence Rule 404(b) did not depend upon proof beyond a reasonable doubt. Dowling, 493 U.S. at 348. Given the different standards of proof, “the collateral-estoppel component of the Double Jeopardy Clause [was] inapposite. Dowling, 493 U.S. at 349; see also State v. Agee, 326 N.C. 542, 551-52 (1990).
North Carolina cases applying Dowling generally favor the admission of evidence. In State v. Bell, 164 N.C. App. 83 (2004), the defendant argued her acquittal of assault on a public officer barred evidence of the assault in a subsequent trial for resisting, delaying, or obstructing a public officer. The Court of Appeals summarized Dowling as holding that “evidence is inadmissible under the Double Jeopardy Clause only when it falls within the scope of the collateral estoppel doctrine.” Bell, 164 N.C. App. at 89. As the defendant failed to show the prior factfinder necessarily decided an issue in her favor that was also at issue in the later trial, the Court of Appeals found no error in the admission of the evidence. Id. at 92; see also State v. Jones, 256 N.C. App. 266, 274, 808 S.E.2d 280, 286 (2017) (prior acquittal of false pretenses did not bar admission of pawn shop ticket in later trial for robbery and assault).
To be sure, our Supreme Court has held that evidence of a prior offense, for which the defendant has been acquitted, is inadmissible in a subsequent trial when the probative value of such evidence depends on the defendant’s having in fact committed the prior offense. State v. Scott, 331 N.C. 39, 41 (1992). But that rule was based on Evidence Rule 403, not double jeopardy. Id.; see also State v. Robinson, 115 N.C. App. 358, 362 (1994) (evidence of prior larceny was inadmissible in later trial for breaking and entering).
A prior civil determination may, however, preclude re-litigation of an issue in a criminal prosecution. The defendant in State v. Summers, 351 N.C. 620 (2000), appealed his conviction for impaired driving, arguing the trial court erred by admitting evidence of his alleged willful refusal to submit to a breath test after he had appealed his license revocation and obtained a determination from the civil superior court that he had not willfully refused. Our Supreme Court held the State was collaterally estopped from relitigating the issue of willful refusal. Summers, 351 N.C. at 626.
State v. Greenfield
In State v. Greenfield, No. COA23-597 (N.C. Ct. App. Feb 19, 2025), the evidence showed that the defendant and a friend went to Jon and Beth’s apartment to purchase marijuana. According to Beth’s later testimony, she awoke to find the defendant pointing a gun at Jon and asking, “where’s the money?” The defendant ultimately shot both Jon and Beth. Jon died from his injuries and Beth was severely injured. The defendant testified he was acting in self-defense. Greenfield, Slip Op. pp. 2-4.
The defendant was indicted for murder, attempted murder, attempted armed robbery, and assault with a deadly weapon with intent to kill inflicting serious injury. The case first came on for trial in February 2017. The defendant was convicted of murder and assault, but he was acquitted of attempted murder and attempted armed robbery. The defendant appealed, and he was awarded a new trial on the murder and assault charges. Greenfield, Slip Op. p. 5.
Upon remand, the defendant filed a motion in limine to preclude the State from presenting any evidence of robbery as he was acquitted of attempted armed robbery in the prior trial. The trial court denied the motion. The defendant was again convicted of murder and assault and appealed. Greenfield, Slip Op. pp. 6-7.
Before the Court of Appeals, the defendant argued the trial court erred by allowing evidence and argument about the alleged armed robbery. (As the defendant failed to preserve his evidentiary claim, the Court of Appeals addressed only the argument issue. Greenfield, Slip Op. pp. 15-17.) The Court of Appeals recited the rule from Bell: evidence is inadmissible under the Double Jeopardy Clause only when it falls within the scope of the collateral estoppel doctrine. It noted that the evidence of the alleged robbery here “was only used to explain the chain of events that led to the intentional shooting of Beth and Jon.” Whether or not a robbery occurred, the Court of Appeals said, the evidence was admitted without objection and tended to explain the chain of events leading to the shooting. It concluded the trial court did not err by failing to intervene in the State’s closing argument. Greenfield, Slip Op. pp. 17-20.
Conclusion
Double jeopardy will rarely compel the exclusion of evidence. Greenfield may be added to the growing list of cases, headed by Dowling, holding that a defendant’s prior acquittal does not preclude evidence of the prior offense at a subsequent trial. Given that collateral estoppel requires an identity of the issues, this is not entirely surprising. A prior jury might have acquitted the defendant for any number of reasons, and it will be difficult for a defendant to show that an issue to be adjudicated at a later trial was necessarily resolved in his or her favor at an earlier one.
Still, Dowling and its progeny should not be read as a license to offer evidence of acquitted conduct in every case. As explained in Scott, under Evidence Rule 403, evidence that a defendant committed a prior offense for which he was acquitted is inadmissible in a later trial when its probative value depends upon the defendant’s having in fact committed the prior offense. Scott, 331 N.C. at 42. Evidence introduced to show intent, common scheme, or modus operandi is unlikely to satisfy this test. See Robinson, 115 N.C. App. 362. Evidence offered to establish the context or chain of circumstances of a crime is less objectionable. See Agee, 326 N.C. at 548.
Further, there is at least one scenario when collateral estoppel requires exclusion: evidence that a defendant willfully refused to submit to a breath test is inadmissible in a DWI trial when, in a prior civil license revocation hearing, the trial court found the defendant did not willfully refuse. Summers, 351 N.C. at 626. That result is perhaps attributable to a specific provision of Chapter 20 (motor vehicles) that makes the results of a single breath test admissible if a person refuses to give a second. G.S. 20-139.1(b3). This explains why the State would offer evidence of a defendant’s willful refusal without it being strictly necessary to a successful prosecution for impaired driving. A prior adjudication of that discrete issue might not warrant dismissal of the charges under G.S. 15A-954(a)(7). But it will preclude the State from relitigating the issue in a later prosecution.
