- The N.C. Court of Appeals has ruled that a man convicted of felony child abuse can be charged with murder 21 years later in connection with the same set of facts.
- Judges agreed that the 1912 Diaz exception defeated the defendant's argument that a murder charge would subject him to double jeopardy.
The N.C. Court of Appeals has ruled that a man can be charged with murder 21 years after pleading guilty to abuse that’s alleged to have caused the later death.
The unanimous ruling issued Tuesday will allow Brunswick County authorities to pursue a murder case against David Raeford Tripp Jr.
Tripp entered an Alford plea in 1998 to four counts of felony child abuse. In an Alford plea, the defendant formally admits guilt to charges while also maintaining his innocence.
The charges were based on injuries a 15-month-old boy, David, had suffered in April 1997. “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,” according to the Appeals Court opinion.
Tripp’s girlfriend, Robin Noffisnger, was David’s mother. She also faced felony child abuse charges connected with the injuries. (In a separate ruling issued Tuesday, the same three-judge panel ruled unanimously that Noffsinger also could face first-degree murder charges.)
Sentenced to prison on three of the four felony charges, Tripp served active prison time until 2008.
“David lived a disabled life for almost twenty-one years before allegedly succumbing to his injuries and dying in 2018,” according to the court opinion.
Authorities indicted Tripp on a first-degree murder charge in May 2018. He moved to have the case dismissed, “alleging prosecution for first-degree murder would violate his right to be free from double jeopardy and his right to due process,” according to the court.
“The State concedes and we agree that … 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,” wrote Judge April Wood.
Wood identified a 1912 precedent called Diaz v. United States. “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,” Wood wrote. “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.”
“Here, the State could not have prosecuted Defendant for murder in 1998 because the abused child, David, had not yet died,” she added. “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.”
Judges Toby Hampson and Jefferson Griffin agreed with Wood about the Diaz exception to Tripp’s double-jeopardy claim. All three judges also rejected Tripp’s argument that a murder prosecution would violate his due process rights.
“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 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,” Wood wrote. “Perhaps Defendant’s ‘debt’ for felony child abuse has been paid, but we look to whether a potential ‘debt’ for murder is due.”
Tripp could appeal Tuesday’s ruling. Since the Appeals Court decision was unanimous, the N.C. Supreme Court faces no obligation to take the case.
Editor’s note: This story was updated on Dec. 7 to include information about State v. Noffsinger.