Just for clarity on the Hardy matter, I feel this needs to be detailed thoroughly AGAIN.....
In North Carolina, misdemeanors are first tried before a judge in district court. If the defendant is acquitted, that’s the end of the case. If convicted, the defendant may appeal to superior court for a trial de novo, this time with a jury. The state saves considerable money and time in prosecuting misdemeanor cases because the district court trial is without a jury or court reporter and most defendants accept the verdict there, while the constitutional right to a jury is preserved by the option of carrying the case to superior court.
A Trial de novo means new, so the concept is a new trial. It’s still an appeal, though, but it doesn't limit how new the new trial is to be conducted.
The most commonly stated explanation of appeal to superior court for a trial de novo is that “it is as if the case had been brought there originally and there had been no previous trial.” State v. Sparrow, 276 N.C. 499, 507 (1970). Or, put another way, “The judgment appealed from is completely annulled and is not thereafter available for any purpose.” Id. The appeal to superior court, unlike an appeal to the Court of Appeals or Supreme Court, is not an appeal on the record. It is not an appeal based on error in the district court; it is an appeal of right. The appeal is available even if the defendant pled guilty in district court. “It is a new trial as a matter of absolute right from the beginning to the end. It totally disregards the plea, trial, verdict, and judgment of the District Court.” State v. Brooks, 287 N.C. 392, 405 (1975).
The United States Supreme Court has characterized the verdict in the lower court in a trial de novo system as “no more than an offer in settlement” of the state’s case. Colten v. Kentucky, 407 U.S. 104, 119 (1972). The defendant is free to either accept the offer or appeal and seek the decision of a jury in superior court. As the North Carolina Supreme Court has said:
"The purpose of our de novo procedure is to provide all criminal defendants charged with misdemeanor violations the right to a ‘speedy trial’ in the District Court and to offer them an opportunity to learn about the State’s case without revealing their own. In the latter sense, this procedure can be viewed as a method of ‘free’ criminal discovery."
Brooks, 287 N.C. at 406.
Because the appeal is a trial de novo and the slate is wiped clean of the district court proceedings, the superior court may impose a harsher sentence than the defendant received below. Colten v. Kentucky, supra; State v. Sparrow, supra. The defendant may not be questioned about having pled guilty in district court. State v. Overby, 4 N.C. App. 280 (1969). Nor may the defendant be asked about failing to testify in district court. State v. Ferrell, 75 N.C. App. 156 (1985). On the other hand, the state is no longer bound by a plea bargain which allowed the defendant to plead to a lesser charge in district court; it may proceed on the original charge in superior court. State v. Fox, 34 N.C. App. 576 (1977).
In other words, Hardy has no conviction on his record and as discussed previously he is in the process of having the arrest expunged from his record as well. If one were to conduct a background check on Mr. Hardy this matter would not even exist.
Further, the Prosecution had every right to pursue the charges without the alleged victim. As stated in the Charlotte Observer:
"Victims and witnesses routinely stop cooperating in domestic-abuse cases and prosecutors still take the cases to court. Murray (District Attorney Andrew Murray), though, said the Hardy case was different. He also appeared to raise doubts about Holder’s credibility in a statement to the judge.
But other details also raised unanswered questions about prosecutors’ handling of the case. Hardy’s defense team announced an appeal of his conviction before leaving court in July. But Murray said prosecutors only “recently” had compared what Holder told police the night of the alleged assault with her testimony at Hardy’s first trial.
That’s because prosecutors didn’t have a trial transcript. Hardy’s defense team did – attorney Chris Fialko hired a court reporter at Hardy’s trial in District Court where transcripts are not normally prepared. According to court records, Fialko also fought the prosecution’s request for a copy of the transcript in the weeks leading up to Hardy’s trial this week.
Murray’s office would not elaborate on what prosecutors found when they compared Holder’s statements, but the district attorney said in court that with Holder unavailable, they “did not have sufficient legal basis” to enter her statements to police as evidence.
Several legal experts around town speculated that prosecutors spotted inconsistencies that prevented them from building their case around Holder’s former accounts. To enter an unavailable witness’s prior testimony and statements as evidence, prosecutors have “to vouch” for its truthfulness, said Charlotte defense attorney George Laughrun.
“If they’re seeing something in the evidence that gives them pause, they may have been placed in a ethical dilemma where they don’t want to vouch for their witness.”
Apologies for the length of the post but the legal minutiae needs to be parsed out. There are a number of false statements on this board and every other medium being presented as legal truth or fact. I am merely trying to offer clarity. This case is more gray than black and white as a previous poster stated. The fact that some fall on one side of guilt or innocence and other people fall on the opposite side is totally understandable.
