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Appeals court says Wake prosecutors were wrong to try man a second time for 2009 shooting death

The state Court of Appeals tossed out a man's 2016 conviction for second-degree murder in a 2009 Raleigh shooting, saying prosecutors lost their chance to convict him when they dismissed the first murder charge after a jury could not decide the case.

An opinion dated Tuesday said that Wake County had no right to try James Harold Chesney III again after police got more evidence and a grand jury handed up a new indictment in 2015 for the same incident.

After the new indictment, a jury convicted Chesney of second-degree murder in the death of James Carol DeBerry in what police said they believed was a drug-related incident.

A jury that heard the first case against Chesney in 2010 could not decide whether he was guilty, and a judge declared a mistrial.

Leaving things there would have let prosecutors try Chesney again without violating the double jeopardy ban on charging the same person twice with the same crime.

In April 2011, however, the prosecutor filed a form to dismiss the charge and did not reserve the right to take them up again, the appeals court said.

That, the court ruled in the opinion written by Judge Rick Elmore, worked the same way as if the first jury had found Chesney not guilty.

"While the State has the undisputed right to retry a hung charge, we hold that a prosecutor’s election instead to dismiss that charge is binding on the State and tantamount to an acquittal," Elmore wrote.

Elmiore cited a box that was checked on a state court form. It was to dismiss the charge outright. A different box is checked if prosecutors are reserving the right to bring a suspect back into court.

Ron Gallagher 919-829-4572 @RPGKT
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