State v. Schalow ( 2016 )


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  •                 IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA16-330
    Filed: 20 December 2016
    Henderson County, No. 15 CRS 50922
    STATE OF NORTH CAROLINA
    v.
    LEONARD PAUL SCHALOW
    Appeal by defendant from judgment entered 5 November 2015 by Judge Mark
    E. Powell in Henderson County Superior Court. Heard in the Court of Appeals 3
    October 2016.
    Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde,
    for the State.
    Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel
    Shatz, for defendant-appellant.
    TYSON, Judge.
    Leonard Paul Schalow (“Defendant”) appeals from judgment entered after a
    jury convicted him of attempted first-degree murder in 15 CRS 50922. We vacate
    Defendant’s indictment, conviction, and judgment entered thereon.
    The original indictment in 14 CRS 50887 was not fatally defective and
    sufficiently alleged attempted voluntary manslaughter.        No manifest necessity
    existed to declare a mistrial after the jury had been impaneled, and jeopardy attached
    under the indictment in 14 CRS 50887.          Defendant’s subsequent indictment,
    STATE V. SCHALOW
    Opinion of the Court
    prosecution, and conviction in 15 CRS 50992 violated his constitutional right against
    double jeopardy. U.S. Const. amend. V; N.C. Const. art. I, § 19.
    I. Background
    A. Facts
    Erin Henry Schalow and Defendant were married in 1997 and moved to North
    Carolina in 2010. Two years later, Mrs. Schalow was hired as a nurse at a long-term
    adult care facility located in Brevard. Defendant was not working at the time the
    incidents occurred.
    Mrs. Schalow testified Defendant assaulted her almost daily from December
    2013 to February 2014. Defendant kicked her with hard-toe boots; hit her with
    walking sticks and an aluminum crutch; and strangled her into unconsciousness at
    least three times. Defendant also attacked her with a knife at least two times. One
    of those attacks and injuries caused her to seek medical attention. Many times, their
    minor son was present in the next room during these attacks.
    Mrs. Schalow also testified Defendant threatened to torture and kill her.
    Defendant told her to “make my peace with [their] son and make sure [she] could be
    there as much as possible for him in the short-term” because he was going to torture
    and kill her over an extended period of time.
    Mrs. Schalow’s supervisor and co-workers noticed and inquired about her
    injuries.   Mrs. Schalow explained her injuries were from falling down stairs,
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    STATE V. SCHALOW
    Opinion of the Court
    slamming her hand in a car door, or running into a wall. Her co-workers did not
    believe these explanations, and eventually Mrs. Schalow confided to one co-worker
    that Defendant had hit her.
    In late February 2014, Mrs. Schalow arrived at work bleeding from her temple
    and mouth, both of her eyes were blackened and swollen, her jaw was so swollen she
    could not talk, and she experienced difficulty walking. At this point, her supervisor
    called the police.
    Henderson County Sheriff’s Detective Dottie Parker interviewed Mrs.
    Schalow, who stated her husband had beaten her the night before. When Detective
    Parker observed Mrs. Schalow’s injuries, she advised her to go the hospital
    immediately. Mrs. Schalow was admitted to the hospital with extensive injuries. She
    remained inpatient at the hospital for three weeks.
    B. Procedural History
    Defendant was charged and indicted for attempted murder of Mrs. Schalow in
    14 CRS 50887. The caption of that indictment identified the offense charged as
    “Attempt First Degree Murder.” The body of the indictment alleged “the defendant
    named above unlawfully, willfully and feloniously did attempt to murder and kill Erin
    Henry Schalow.”
    The cause in 14 CRS 50887 was called for trial on 17 March 2015, the jury was
    impaneled, and the State presented evidence against Defendant. After the jury was
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    STATE V. SCHALOW
    Opinion of the Court
    excused following the first day of trial, Judge Powell alerted the parties to the fact
    the indictment failed to allege “with malice aforethought” as required to charge
    attempted first-degree murder under the short-form indictment statute, 
    N.C. Gen. Stat. § 15-144
    . The court cited State v. Bullock, 
    154 N.C. App. 234
    , 243-45, 
    574 S.E.2d 17
    , 23-24 (2002), appeal dismissed, disc. review denied, 
    357 N.C. 64
    , 
    579 S.E.2d 396
    ,
    cert. denied, 
    540 U.S. 928
    , 
    157 L. Ed. 2d 231
     (2003), in which a similar error was
    made in an initial indictment for attempted first-degree murder.        Judge Powell
    announced he would hear arguments on the validity of the indictment the following
    morning.
    The next morning, the State requested that Judge Powell dismiss the
    indictment as defective, in order to allow the State to re-indict Defendant in a bill
    which properly charged attempted murder. Defendant offered up a memorandum of
    law; repeatedly asserted that jeopardy had attached; and, argued dismissal by the
    trial court would be improper.     Defendant also argued the indictment properly
    charged the lesser-included offense of attempted voluntary manslaughter and was
    not fatally defective. Defendant cited State v. Bullock in support of his position
    asserting the indictment effectively charged attempted voluntary manslaughter. 
    Id.
    After hearing arguments from the parties, Judge Powell ruled the indictment
    was fatally defective and the court had not acquired jurisdiction to try the case. He
    dismissed the indictment and declared a mistrial. Defendant objected to this ruling.
    -4-
    STATE V. SCHALOW
    Opinion of the Court
    Defendant was subsequently re-indicted in 15 CRS 50922 on 18 May 2015. As
    with 14 CRS 50887, the caption of 15 CRS 50922 identified the charged offense as
    “Attempt First Degree Murder.” This indictment alleged “the defendant named above
    unlawfully, willfully and feloniously did with malice aforethought attempt to murder
    and kill Erin Henry Schalow by torture.” (emphasis supplied). A box checked on the
    indictment in 15 CRS 50922 indicated it was a “superseding indictment.”
    On 22 May 2015, Defendant filed a motion to dismiss 15 CRS 50922, along with
    a supporting memorandum of law. In his motion and memorandum, Defendant
    argued his prosecution in 15 CRS 50922 was barred by the double jeopardy
    protections in the Fifth Amendment to the Constitution of the United States and
    Article I, Section 19 of the North Carolina Constitution.
    Defendant’s motion and memorandum addressed and asserted three related
    grounds. First, there was no fatal defect or variance in the indictment in 14 CRS
    50887. Second, the trial court in 14 CRS 50887 abused its discretion in declaring a
    mistrial.   Finally, Defendant argued once jeopardy attached on the dismissed
    indictment for attempted voluntary manslaughter in 14 CRS 50887, the Double
    Jeopardy Clause prohibited Defendant from being prosecuted again for the greater
    offense of attempted murder.
    On 4 June 2015, Judge Thornburg conducted a hearing on Defendant’s double
    jeopardy motion and denied Defendant’s motion to dismiss. A written order was
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    STATE V. SCHALOW
    Opinion of the Court
    entered on 10 June 2015.      Judge Thornburg found Judge Powell had correctly
    determined the indictment in 14 CRS 50887 was fatally defective and did not abuse
    his discretion in dismissing the indictment and declaring a mistrial at the previous
    trial. Judge Thornburg concluded “the law is settled that there is no double jeopardy
    bar to a second trial when a charge is dismissed because an indictment . . . is
    defective.”
    Prior to his second trial, Defendant filed a motion for temporary stay and
    petition for writ of supersedeas. He requested this Court to stay the proceedings until
    it resolved the issues in Defendant’s contemporaneously filed petition for writ of
    certiorari. Defendant’s writ of certiorari requested this Court to stay and reverse
    Judge Thornburg’s orders denying Defendant’s motion to dismiss and habeas relief.
    Defendant again asserted the double jeopardy provisions of the North Carolina
    Constitution and the Constitution of the United States prohibited further prosecution
    of him pursuant to the new indictment.          This Court allowed and entered the
    temporary stay, but later denied Defendant’s petitions and dissolved the stay
    “without prejudice to his right to seek relief on appeal from the final judgment.”
    At the second trial, Defendant again asserted his double jeopardy defense at
    the outset, and renewed his motion to dismiss on double jeopardy grounds after the
    close of the evidence. The trial court denied the renewed motion to dismiss.
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    STATE V. SCHALOW
    Opinion of the Court
    The jury convicted Defendant of attempted first-degree murder with both
    premeditation and deliberation and by torture.           Defendant was sentenced to a
    minimum term of 157 months and a maximum term of 201 months. Defendant
    appeals.
    II. Jurisdiction
    Jurisdiction lies in this Court as of right from a final judgment in a superior
    court. N.C. Gen. Stat. § 7A-27(b)(1) (2015).
    III. Issues
    Defendant first argues jeopardy attached when the trial court dismissed the
    original indictment in 14 CRS 50887 and declared a mistrial absent any manifest
    necessity, and over Defendant’s objection.
    Defendant also argues the trial court erred in the subsequent trial by: (1)
    denying his motion to dismiss at the close of the State’s evidence, where the evidence
    failed to show he committed any overt act with the intent to kill Mrs. Schalow; (2)
    allowing Detective Parker’s testimony that she had elevated the charges against
    Defendant from assault to attempted murder; and, (3) failing to intervene ex mero
    motu when the prosecutor argued “a lot of thought” went into the decision to charge
    Defendant with attempted first-degree murder.
    IV. Standard of Review
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    STATE V. SCHALOW
    Opinion of the Court
    This Court reviews indictments alleged to be facially invalid de novo. State v.
    Haddock, 191 N.C. App 474, 476, 
    664 S.E.2d 339
    , 342 (2008).            Facially invalid
    indictments deprive the trial court of jurisdiction to enter judgment in criminal cases.
    
    Id.
     This Court also reviews double jeopardy issues de novo. State v. Baldwin, __ N.C.
    App. __, __, 
    770 S.E.2d 167
    , 170 (2015). A trial court’s decision to declare a mistrial
    due to manifest necessity is reviewed for abuse of discretion. State v. Sanders, 
    347 N.C. 587
    , 595, 
    496 S.E.2d 568
    , 573 (1998).
    V. Sufficiency of an Indictment
    The State asserts the original indictment in 14 CRS 50887 was fatally
    defective, because it failed to allege any charge against Defendant. As such, the State
    argues the indictment did not confer jurisdiction upon the trial court and Defendant’s
    constitutional right to be protected from double jeopardy was not violated.         We
    disagree.
    The Constitution of North Carolina provides: “no person shall be put to answer
    any criminal charge but by indictment, presentment, or impeachment.” N.C. Const.
    art. 1, § 22. Our Supreme Court has held:
    [a]n indictment or criminal charge is constitutionally
    sufficient if it apprises the defendant of the charge against
    him with enough certainty to enable him to prepare his
    defense and to protect him from subsequent prosecution for
    the same offense. The indictment must also enable the
    court to know what judgment to pronounce in the event of
    conviction.
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    STATE V. SCHALOW
    Opinion of the Court
    State v. Coker, 
    312 N.C. 432
    , 434-35, 
    324 S.E.2d 343
    , 346 (1984); see Haddock, 191
    N.C. App at 476-77, 
    664 S.E.2d at 342
    . Generally, courts do not favor quashing an
    indictment. State v. Greer, 
    238 N.C. 325
    , 327, 
    77 S.E.2d 917
    , 919 (1953); see 
    N.C. Gen. Stat. § 15-153
     (2015) (“[The indictment] shall not be quashed . . . by reason of any
    informality or refinement, if in the bill or proceeding, sufficient matter appears to
    enable the court to proceed to judgment.”).
    A. Short-form Indictment for Attempted Voluntary Manslaughter
    The North Carolina General Assembly statutorily authorized short-form
    indictments to provide “a method by which indictments can be certain to be sufficient
    to withstand constitutional challenges.” State v. McKoy, 
    196 N.C. App. 650
    , 656, 
    675 S.E.2d 406
    , 411 (2009), appeal dismissed and disc. review denied, 
    363 N.C. 586
    , 
    683 S.E.2d 215
     (2009). 
    N.C. Gen. Stat. § 15-144
     sets out the requirements for short-form
    indictments for murder and manslaughter:
    it is sufficient in describing murder to allege that the
    accused person feloniously, willfully, and of his malice
    aforethought, did kill and murder (naming the person
    killed), and concluding as is now required by law; and it is
    sufficient in describing manslaughter to allege that the
    accused feloniously and willfully did kill and slay (naming
    the person killed), and concluding as aforesaid; and any bill
    of indictment containing the averments and allegations
    herein named shall be good and sufficient in law as an
    indictment for murder or manslaughter, as the case may
    be.
    
    N.C. Gen. Stat. § 15-144
     (2015) (emphasis supplied).
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    STATE V. SCHALOW
    Opinion of the Court
    In State v. Jones, 
    359 N.C. 832
    , 837-38, 
    616 S.E.2d 496
    , 499 (2005), our
    Supreme Court considered whether 
    N.C. Gen. Stat. § 15-144
     also permitted the use
    of a short-form indictment as sufficient to allege attempted first-degree murder. The
    Supreme Court considered 
    N.C. Gen. Stat. § 15-144
     in conjunction with 
    N.C. Gen. Stat. § 15-170
    . 
    Id.
     
    N.C. Gen. Stat. § 15-170
     provides a defendant “may be convicted
    of the crime charged therein or of a less degree of the same crime, or of an attempt to
    commit the crime so charged, or of an attempt to commit a less degree of the same
    crime.” 
    N.C. Gen. Stat. § 15-170
     (2015) (emphasis supplied).
    The Jones Court noted that 
    N.C. Gen. Stat. § 15-170
     was relevant because “it
    reflects the General Assembly’s judgment that, for purposes of the indictment
    requirement, attempt is generally treated as a subset of the completed offense.”
    Jones, 
    359 N.C. at 837
    , 
    616 S.E.2d at 499
    . The Court held 
    N.C. Gen. Stat. § 15-144
    implicitly authorizes the State to use a short-form indictment to charge attempted
    first-degree murder. Based upon the principles in Jones, the State could properly use
    a short-form indictment to charge attempted voluntary manslaughter as a stand-
    alone offense, or as a lesser included offense to murder. See 
    id.
    B. Sufficiency of this Indictment under State v. Bullock
    Defendant argues, while the original indictment omitted the words “with
    malice aforethought” and failed to properly assert attempted first-degree murder, the
    language in the original indictment was sufficient to allege the charge of attempted
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    STATE V. SCHALOW
    Opinion of the Court
    voluntary manslaughter. We agree.
    In Bullock, the defendant was tried and convicted on attempted first-degree
    murder. Bullock, 154 N.C. App. at 236, 
    574 S.E.2d at 18
    .          His indictment for
    attempted first-degree murder stated: “[t]he jurors for the State upon their oath
    present that on or about the date of the offense shown and in the county named above
    the defendant named above unlawfully, willfully and feloniously did attempt to kill
    and murder Yvonne Bullock.” Id. at 244, 
    574 S.E.2d at 23
    . On appeal, the defendant
    argued the short-form indictment for attempted murder failed to allege “malice
    aforethought” as expressly required by 
    N.C. Gen. Stat. § 15-144
    . 
    Id. at 244
    , 
    574 S.E.2d at 24
    .
    This Court agreed the indictment failed to properly allege attempted first-
    degree murder, but found that “the indictment sufficiently allege[d] a lesser-included
    offense.” Id. at 245, 
    574 S.E.2d at 24
    . This Court clarified the Bullock indictment
    sufficiently alleged attempted voluntary manslaughter, as voluntary manslaughter
    “consists of an unlawful killing without malice, premeditation or deliberation.” 
    Id.
     As
    such, this Court did not vacate the indictment in Bullock, but held the proper remedy
    was to remand the case for resentencing on the lesser-included offense of attempted
    voluntary manslaughter and entry of judgment thereupon. 
    Id.
    In State v. Yang, 
    174 N.C. App. 755
    , 763, 
    622 S.E.2d 632
    , 647 (2005), disc.
    review denied, 
    360 N.C. 296
    , 
    628 S.E.2d 12
     (2006), this Court relied on Bullock to hold
    - 11 -
    STATE V. SCHALOW
    Opinion of the Court
    the defendant’s indictment, which insufficiently alleged attempted first-degree
    murder, was sufficient to allege attempted voluntary manslaughter. The Yang court
    explained that Bullock held “the indictment [in Bullock] did sufficiently allege the
    lesser-included offense of attempted voluntary manslaughter, notwithstanding the
    lack of the phrase ‘malice aforethought.’” 
    Id.
    More recently in Wilson, this Court relied on Bullock to remand the defendant’s
    case for resentencing on attempted voluntary manslaughter, where the indictment
    failed to allege attempted first-degree murder, but stated “the defendant named
    above unlawfully, willfully and feloniously did attempt to murder Timothy Lynch.”
    State v. Wilson, 
    236 N.C. App. 472
    , 474-75, 
    762 S.E.2d 894
    , 895-96 (2014).
    Had this Court concluded, in either Bullock or Wilson, the underlying
    indictments did not sufficiently allege any offense and were fatally defective, the trial
    court would have lacked jurisdiction to hear or impose sentences in either case. The
    appropriate remedy would have been to vacate both defendants’ convictions, and not
    to remand for resentencing consistent with the lesser-included offense of attempted
    voluntary manslaughter.
    The original indictment in 14 CRS 50887 failed to sufficiently allege attempted
    first-degree murder.    However, had the trial proceeded and the impaneled jury
    returned a guilty verdict on attempted first-degree murder, as in Bullock and Wilson,
    that indictment would have supported a conviction and judgment sentencing
    - 12 -
    STATE V. SCHALOW
    Opinion of the Court
    Defendant of attempted voluntary manslaughter. See Bullock, 154 N.C. App. at 245,
    
    574 S.E.2d at 24
    ; Wilson, 236 N.C. App. at 474-75, 762 S.E.2d at 895-96.
    Additionally, the original indictment apprised Defendant of the charges
    against him with sufficient certainty to enable him to prepare his defense. See Coker,
    
    312 N.C. at 434-35
    , 324 S.E.2d at 346. Defendant expressly objected to the mistrial
    and dismissal of the indictment in 14 CRS 50887. Defendant was prepared to proceed
    with the trial on the issue of attempted voluntary manslaughter and requested the
    trial court to proceed on that charge. Once the State’s failure to allege “with malice
    aforethought” in the original indictment in 14 CRS 50887 was discovered and
    communicated by Judge Powell, the court should have required the State to dismiss
    the charge against Defendant or to proceed with the trial on attempted voluntary
    manslaughter. See State v. Etheridge, 
    319 N.C. 34
    , 50, 
    352 S.E.2d 673
    , 683 (1987).
    The indictment also enabled “the court to know what judgment to pronounce
    in the event of conviction.” Coker, 
    312 N.C. at 434-35
    , 324 S.E.2d at 346. Judge Powell
    was aware of this Court’s holding in Bullock and cited it upon realizing the omission
    of “with malice aforethought” in the original indictment. See Bullock, 154 N.C. App.
    at 244, 
    574 S.E.2d at 24
    . Based upon Bullock and Wilson, had the trial proceeded on
    the original indictment in 14 CRS 50887, the jury’s conviction thereon would have
    supported a judgment and sentence of attempted voluntary manslaughter. See id. at
    245, 
    574 S.E.2d at 24
    ; Wilson, 236 N.C. App. at 474-75, 762 S.E.2d at 895-96.
    - 13 -
    STATE V. SCHALOW
    Opinion of the Court
    Under de novo review, the original indictment in 14 CRS 50887 was
    constitutionally and statutorily sufficient to invoke jurisdiction, allege attempted
    voluntary manslaughter, and was not fatally defective. See id. Since the indictment
    sufficiently alleged an offense upon which trial could have properly proceeded to
    judgment, it was error for the trial court to have concluded otherwise in 14 CRS
    50887. This error was compounded in 15 CRS 50992 when, after the hearing of
    Defendant’s double jeopardy motion, Judge Thornburg denied Defendant’s motion to
    dismiss the indictment and concluded Judge Powell had “validly ruled the indictment
    was defective.”
    VI. Double Jeopardy
    With our determination that the indictment in 14 CRS 50887 was not fatally
    defective, we turn to whether the trial court erred in dismissing the indictment and
    declaring a mistrial based on manifest necessity, and the double jeopardy
    implications of that action.
    The Fifth Amendment of the Constitution of the United States provides,
    No person shall be held to answer for a capital, or otherwise
    infamous crime, unless on a presentment or indictment of
    a grand jury, except in cases arising in the land or naval
    forces, or in the militia, when in actual service in time of
    war or public danger; nor shall any person be subject for the
    same offense to be twice put in jeopardy of life or limb; nor
    shall be compelled in any criminal case to be a witness
    against himself, nor be deprived of life, liberty, or property,
    without due process of law; nor shall private property be
    taken for public use, without just compensation.
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    STATE V. SCHALOW
    Opinion of the Court
    U.S. Const. amend. V (emphasis supplied).
    “It is a fundamental principle of the common law, guaranteed by our Federal
    and State Constitutions, that no person may be twice put in jeopardy of life or limb
    for the same offense.” State v. Shuler, 
    293 N.C. 34
    , 42, 
    235 S.E.2d 226
    , 231 (1977)
    (citing U.S. Const. amend. V; N.C. Const. art. I, § 19; State v. Cutshall, 
    278 N.C. 334
    ,
    
    180 S.E.2d 745
     (1971)).
    In a criminal prosecution, jeopardy attaches when a jury is impaneled to try a
    defendant on a valid bill of indictment. Id.; Cutshall, 
    278 N.C. at 344
    , 
    180 S.E.2d at 751
    . Once jeopardy attaches, it protects “a defendant from additional punishment
    and successive prosecution for the same criminal offense.” State v. Sparks, 
    362 N.C. 181
    , 186, 
    657 S.E.2d 655
    , 658-59 (2008) (citation and quotation marks omitted); see
    Gilliam v. Foster, 
    75 F.3d 881
    , 893 (4th Cir. 1996), cert. denied, 
    517 U.S. 1220
    , 
    134 L. Ed. 2d 950
     (1996) (“Among the protections provided by [the Double Jeopardy Clause]
    is the assurance that a criminal defendant will not be subjected to repeated
    prosecutions for the same offense.” (citation and quotation marks omitted)).
    While “the primary purpose of the Double Jeopardy Clause was to protect the
    integrity of a final judgment,” a separate body of double jeopardy law also protects a
    defendant’s interest “in avoiding multiple prosecutions even where no final
    determination of guilt or innocence has been made.” United States v. Scott, 
    437 U.S. 82
    , 92, 
    57 L. Ed. 2d 65
    , 74-75, reh’g denied, 
    439 U.S. 883
    , 
    58 L. Ed. 2d 197
     (1978).
    - 15 -
    STATE V. SCHALOW
    Opinion of the Court
    These protected interests arise in two situations: (1) when the trial court declares a
    mistrial, and (2) when the trial court terminates the proceedings in favor of the
    defendant on a basis that is not related to factual guilt or innocence. Id.; see State v.
    Priddy, 
    115 N.C. App. 547
    , 551, 445, S.E.2d 610, 613, disc. review denied, 
    337 N.C. 805
    , 
    449 S.E.2d 751
     (1994).
    This separate body of law under the Double Jeopardy Clause protects the
    defendant’s “valued right” to have a particular tribunal to decide guilt or innocence,
    once jeopardy attaches. Gilliam, 
    75 F.3d at 893
    . As the Supreme Court of the United
    States has held:
    The reasons why this “valued right” merits constitutional
    protection are worthy of repetition. Even if the first trial is
    not completed, a second prosecution may be grossly unfair.
    It increases the financial and emotional burden on the
    accused, prolongs the period in which he is stigmatized by
    an unresolved accusation of wrongdoing, and may even
    enhance the risk that an innocent defendant may be
    convicted. The danger of such unfairness to the defendant
    exists whenever a trial is aborted before it is completed.
    Consequently, as a general rule, the prosecutor is entitled
    to one, and only one, opportunity to require an accused to
    stand trial.
    Arizona v. Washington, 
    434 U.S. 497
    , 503-05, 
    54 L. Ed. 2d 717
    , 727-28 (1978)
    (footnotes omitted).
    In 14 CRS 50887, jeopardy attached once the jury was duly impaneled under a
    valid indictment to try the case. See Shuler, 
    293 N.C. at 42
    , 
    235 S.E.2d at 231
    .
    Neither the State nor Defendant contends otherwise. Since the trial court’s order did
    - 16 -
    STATE V. SCHALOW
    Opinion of the Court
    not constitute a “final determination of guilt or innocence,” we analyze Defendant’s
    double jeopardy claims under the separate body of double jeopardy law discussed in
    Scott. Scott, 
    437 U.S. at 92
    , 
    57 L. Ed. 2d at 74-75
    .
    A. Trial Court’s Declaration of a Mistrial
    The trial court’s order in 14 CRS 50887 stated: “I find that because the
    indictment is defective that the Court has no jurisdiction to try this case. And I
    dismiss the indictment. . . . I would find there’s a manifest necessity that because the
    indictment is dismissed that a mistrial be declared.” The briefs and arguments of
    both the State and Defendant proceed from the premise that the trial court’s order
    functioned as a mistrial.
    In their briefs and oral arguments to this Court regarding double jeopardy, the
    State and Defendant only argued whether manifest necessity existed for the trial
    court to declare a mistrial. See Lee v. United States, 
    432 U.S. 23
    , 32, 
    53 L. Ed. 2d 80
    ,
    88 (1977). We begin with the premise that, although the trial court both dismissed
    the indictment as defective and declared a mistrial, the court’s order ultimately
    functioned as a mistrial and the manifest necessity analysis applies.
    1. Lee v. United States and Illinois v. Somerville
    In Lee v. United States, the Supreme Court reviewed an appeal in which the
    district court granted the defendant’s motion to dismiss for failure of the indictment
    to charge either knowledge or intent as required by statute. 
    Id. at 25-26
    , 53 L. Ed. 2d
    - 17 -
    STATE V. SCHALOW
    Opinion of the Court
    at 84-85. The district court’s dismissal did not include any finding regarding the
    defendant’s guilt or innocence. 
    Id. at 29
    , 
    53 L. Ed. 2d at 86
    . In determining whether
    this order functioned as a “dismissal” or a “declaration of a mistrial” for the purposes
    of its double jeopardy analysis, the Court held that a trial court’s label of its action is
    not determinative. 
    Id. at 29-30
    , 
    53 L. Ed. 2d at 86-87
    . Rather, “[t]he critical question
    is whether the order contemplates an end to all prosecution of the defendant for the
    offense charged.    A mistrial ruling invariably rests on grounds consistent with
    reprosecution, while a dismissal may or may not do so.” 
    Id. at 30
    , 
    53 L. Ed. 2d at 87
    .
    The Supreme Court noted the indictment’s failure to sufficiently allege the
    offense as required by statute, “like any prosecutorial or judicial error that
    necessitates a mistrial, was one that could be avoided—absent any double jeopardy
    bar—by beginning anew the prosecution of the defendant.” 
    Id.
     The district court’s
    dismissal of the indictment plainly contemplated the State would re-indict the
    defendant at a later date. 
    Id. at 30-31
    , 
    53 L. Ed. 2d at 87
    . Based on this reasoning,
    the Supreme Court held:
    the order entered by the District Court was functionally
    indistinguishable from a declaration of mistrial.
    We conclude that the distinction between dismissals and
    mistrials has no significance in the circumstances here
    presented and that established double jeopardy principles
    governing the permissibility of retrial after a declaration of
    mistrial are fully applicable.
    
    Id. at 31
    , 
    53 L. Ed. 2d at 87-88
    . (footnote omitted).
    - 18 -
    STATE V. SCHALOW
    Opinion of the Court
    In Lee, the Supreme Court referenced a similar Supreme Court case where it
    upheld a trial court’s declaration of a mistrial over the defendant’s objection due to a
    fatal defect in the indictment. Lee, 
    432 U.S. at
    31 n.9, 
    53 L. Ed. 2d at 87
    ; see Illinois
    v. Somerville 
    410 U.S. 458
    , 459, 
    35 L. Ed. 2d 425
    , 428 (1973) (holding there was
    manifest necessity to declare a mistrial). The Court in Lee noted “[t]here is no reason
    to believe that Somerville would have been analyzed differently if the trial judge, like
    the District Court here, had labeled his action a ‘dismissal’ rather than a mistrial.”
    Lee, 
    432 U.S. at
    31 n.9, 
    53 L. Ed. 2d at 87
    . Furthermore, a subsequent Supreme Court
    case recognized that “Lee demonstrated that, at least in some cases, the dismissal of
    an indictment may be treated on the same basis as the declaration of a mistrial.”
    Scott, 
    437 U.S. at 94
    , 
    57 L. Ed. 2d at 76
    .
    2. Trial Court’s Order in 14 CRS 50887
    In terminating the proceeding in 14 CRS 50887, the trial court labeled its
    actions as both a dismissal of a defective indictment for lack of jurisdiction, as in Lee,
    and a declaration of a mistrial, as in Somerville. Whatever the label, the trial court’s
    decision to terminate the proceedings did not “contemplate[] an end to all
    prosecution,” but was based upon the erroneous belief the indictment did not invoke
    jurisdiction and the State could constitutionally re-indict Defendant at a later date.
    Lee, 
    432 U.S. at 30
    , 
    53 L. Ed. 2d at 87
    . Based on Lee, its analysis of Somerville, and
    as subsequently recognized in Scott, a dismissal of a defective indictment may be
    - 19 -
    STATE V. SCHALOW
    Opinion of the Court
    treated as a mistrial. 
    Id. at 31
    , 
    53 L. Ed. 2d at 86-87
    ; see Somerville, 
    410 U.S. at 459
    ,
    
    35 L. Ed. 2d at 428
    ; Scott, 
    437 U.S. at 94
    , 
    57 L. Ed. 2d at 76
    . Whether we ultimately
    review the trial court’s order as a dismissal or a mistrial, the “double jeopardy
    principles governing the permissibility of retrial after a declaration of mistrial are
    fully applicable” in this case. See 
    id.
    B. Mistrials and Manifest Necessity
    The United States Court of Appeals for the Fourth Circuit has explained:
    if a criminal proceeding is terminated by mistrial without
    a final resolution of guilt or innocence, a defendant may be
    retried in certain circumstances. When a defendant seeks
    or consents to the grant of a mistrial, there is no bar to his
    later retrial. But, when a defendant opposes the grant of a
    mistrial, he may not be retried unless there was a manifest
    necessity for the grant of the mistrial or the failure to grant
    the mistrial would have defeated the ends of justice.
    Gilliam, 
    75 F.3d at 893
    . (emphasis supplied) (citations and footnotes omitted).
    North Carolina courts have also recognized an order of mistrial after jeopardy
    has attached may only be entered over the defendant’s objection where “manifest
    necessity” exists. State v. Odom, 
    316 N.C. 306
    , 310, 
    341 S.E.2d 332
    , 334 (1986); State
    v. Jones, 
    67 N.C. App. 377
    , 381, 
    313 S.E.2d 808
    , 811-812, disc. review denied, 
    315 S.E.2d 699
     (1984). If a mistrial results from manifest necessity, double jeopardy does
    not bar the State from retrying the defendant on the same offense. Odom, 316 N.C.
    at 310, 
    341 S.E.2d at 334
    . However, if manifest necessity does not exist and “the
    order of mistrial has been improperly entered over a defendant's objection,
    - 20 -
    STATE V. SCHALOW
    Opinion of the Court
    defendant’s motion for dismissal at a subsequent trial on the same charges must be
    granted.” 
    Id.
     (citations omitted); see Gilliam, 
    75 F.3d at 895
    .
    “Whether a grant of a mistrial is manifestly necessary is a question that turns
    on the facts presented to the trial court.” Gilliam, 
    75 F.3d at 895
    . Since a declaration
    of a mistrial inevitably affects a constitutionally protected interest, the trial court
    “‘must always temper the decision whether or not to abort the trial by considering the
    importance to the defendant of being able, once and for all, to conclude his
    confrontation with society through the verdict of a tribunal he might believe to be
    favorably disposed to his fate.’” Washington, 
    434 U.S. at 514
    , 
    54 L. Ed. 2d at 733
    (quoting United States v. Jorn, 
    400 U.S. 470
    , 486, 
    27 L. Ed. 2d 543
    , 557 (1971)).
    As such, the trial court’s discretion in determining whether manifest necessity
    exists is limited. Jones, 67 N.C. App. at 381, 
    313 S.E.2d at 812
    ; see U.S. v. Sloan, 
    36 F.3d 386
    , 394 (4th Cir. 1994) (holding “manifest necessity” means a “high degree” of
    necessity is required for mistrial to be appropriate). The Fourth Circuit explained:
    First enunciated 170 years ago, this bedrock principle has
    been consistently reiterated and followed. Its basis is the
    Fifth Amendment’s Double Jeopardy Clause . . . . Because
    jeopardy attaches before the judgment becomes final, it has
    been held that the double jeopardy clause protects a
    defendant’s valued right to have his trial completed by a
    particular tribunal, and so prohibits the declaration of a
    mistrial absent manifest necessity.
    Sloan, 
    36 F.3d 386
     at 393 (citations and quotation marks omitted).
    - 21 -
    STATE V. SCHALOW
    Opinion of the Court
    Our courts have set forth two types of manifest necessity: physical necessity
    and the necessity of doing justice. State v. Crocker, 
    239 N.C. 446
    , 450, 
    80 S.E.2d 243
    ,
    246 (1954).   For example, physical necessity occurs in situations where a juror
    suddenly takes ill in such a manner that wholly disqualifies him from proceeding
    with the trial. 
    Id.
     Whereas the necessity of doing justice “arises from the duty of the
    court to guard the administration of justice from fraudulent practices” and includes
    “the occurrence of some incident of a nature that would render impossible a fair and
    impartial trial under the law.” 
    Id.
     (citation and quotation marks omitted).
    Both the Supreme Court of the United States and North Carolina courts have
    recognized that manifest necessity exists to declare a mistrial when the indictment
    contains a fatal defect, which deprives the court of jurisdiction. Somerville, 
    410 U.S. at 468-69
    , 
    35 L. Ed. 2d at 433-34
    ; State v. Whitley, 
    264 N.C. 742
    , 745, 
    142 S.E.2d 600
    ,
    603 (1965) (citing State v. Jordan, 
    247 N.C. 253
    , 256, 
    100 S.E.2d 497
    , 499 (1957)).
    Thus, “[a] defendant is not subjected to double jeopardy when an insufficient
    indictment is quashed, and he is subsequently put to trial on a second, sufficient
    indictment.” State v. Oakes, 
    113 N.C. App. 332
    , 340, 
    438 S.E.2d 477
    , 481, disc. review
    denied, 
    336 N.C. 76
    , 
    445 S.E.2d 43
     (1994).
    As noted, this Court does not favor dismissing indictments where the
    indictment is constitutionally sufficient to enable the court to proceed to judgment.
    See Greer, 
    238 N.C. at 327
    , 
    77 S.E.2d at 919
    ; 
    N.C. Gen. Stat. § 15-153
    . Unlike in
    - 22 -
    STATE V. SCHALOW
    Opinion of the Court
    Somerville and Oakes, in this case, the original indictment in 14 CRS 50887 was not
    fatally defective, it sufficiently alleged attempted voluntary manslaughter. See
    Bullock, 154 N.C. App. at 243-45, 
    574 S.E.2d at 23-24
    ; but see Somerville, 
    410 U.S. at 468-69
    , 
    35 L. Ed. 2d at 433-34
    ; Oakes, 113 N.C. App. at 340, 
    438 S.E.2d at 481
    . The
    trial court was aware of this Court’s opinion in Bullock and cited it when it first
    realized the indictment had failed to allege “with malice aforethought.”
    The Supreme Court of the United States has emphasized the importance of
    “preserving the defendant’s primary control over the course to be followed in the event
    of such [a prejudicial] error,” Lee, 
    432 U.S. at 32
    , 
    53 L. Ed. 2d at 88
     (citation and
    quotation marks omitted), and a defendant’s a “valued right” to have his case heard
    before the original jury impaneled. Washington, 
    434 U.S. at 503-05
    , 
    54 L. Ed. 2d at 727-28
    . As noted below, in 14 CRS 50887, Defendant argued that based on Bullock
    the trial could and should properly proceed on attempted voluntary manslaughter.
    Since the trial court retained jurisdiction, it could have proceeded on attempted
    voluntary manslaughter, and Defendant requested that the trial court proceed on
    that charge, no lack of jurisdiction or manifest necessity existed for the trial court to
    declare a mistrial to allow the State to re-indict Defendant. Judge Powell erred by
    ruling the indictment in 14 CRS 50887 was otherwise jurisdictionally defective to
    charge any crime to justify dismissal and by using this incorrect determination as a
    basis to declare a mistrial.
    - 23 -
    STATE V. SCHALOW
    Opinion of the Court
    C. Dismissals and Mistrial based on Defendant’s Motion or Consent
    This case is distinguishable from those in which a dismissal or mistrial was
    entered based on the defendant’s motion or consent. The Supreme Court of the
    United States has distinguished cases where the mistrial is entered pursuant to the
    defendant’s motion or complicity, from those where the mistrial is entered over the
    defendant’s objection. See Scott, 
    437 U.S. at 92-93
    , 
    57 L. Ed. 2d at 74-75
    ; Sloan, 
    36 F.3d at 393
     (holding there was no manifest necessity for the trial court to declare a
    mistrial over the defendant’s objections).
    The Supreme Court explained when a defendant moves for a mistrial:
    Such a motion by the defendant is deemed to be a
    deliberate election on his part to forgo his valued right to
    have his guilt or innocence determined before the first trier
    of fact. “The important consideration, for purposes of the
    Double Jeopardy Clause, is that the defendant retain
    primary control over the course to be followed in the event
    of such error.” United States v. Dinitz, 
    424 U.S. 600
    , 609,
    
    47 L. Ed. 2d 267
     (1976). But “[t]he Double Jeopardy Clause
    does protect a defendant against governmental actions
    intended to provoke mistrial requests and thereby to
    subject defendants to the substantial burdens imposed by
    multiple prosecutions.” 
    Id. at 611
    .
    Scott, 
    437 U.S. at 93-94
    , 
    57 L. Ed. 2d at 76
    .
    Similarly, when a defendant moves for a dismissal on grounds not related to
    the basis of factual guilt or innocence the Supreme Court held:
    [T]he defendant, by deliberately choosing to seek
    termination of the proceedings against him on a basis
    unrelated to factual guilt or innocence of the offense of
    - 24 -
    STATE V. SCHALOW
    Opinion of the Court
    which he is accused, suffers no injury cognizable under the
    Double Jeopardy Clause if the Government is permitted to
    appeal from such a ruling of the trial court in favor of the
    defendant. . . . we conclude that the Double Jeopardy
    Clause, which guards against Government oppression,
    does not relieve a defendant from the consequences of his
    voluntary choice.
    
    Id. at 98-99
    , 
    57 L. Ed. 2d at 79
    . Thus, if a defendant successfully seeks to avoid his
    trial prior to its conclusion by actions or a motion of mistrial or dismissal, the Double
    Jeopardy Clause is generally not offended by a second prosecution. 
    Id. at 93
    , 
    57 L. Ed. 2d at 75
    .
    1. State v. Priddy
    North Carolina courts have also addressed this issue. In a case similar to the
    one here, this Court considered whether double jeopardy bars the State from
    appealing a trial court’s order granting defendant’s motion to dismiss for lack of
    jurisdiction. Priddy, 115 N.C. App. at 551, 445 S.E.2d at 613.           In Priddy, the
    defendant moved to dismiss the case for lack of jurisdiction. Id. at 548, 445 S.E.2d at
    611. The defendant in Priddy asserted the superior court lacked jurisdiction because
    the impaired driving charge was not initially tried in the district court. Id. at 548,
    445 S.E.2d at 612. The superior court granted the defendant’s motion to dismiss and
    the State appealed. Id. at 548, 445 S.E.2d at 611.
    This Court held the superior court had jurisdiction over the impaired driving
    charge and the superior court erred in dismissing the indictment for lack of
    - 25 -
    STATE V. SCHALOW
    Opinion of the Court
    jurisdiction. Id. at 550, 445 S.E.2d at 612. Addressing the double jeopardy issue, this
    Court emphasized the defendant, not the State, moved to dismiss and the dismissal
    was “based solely upon the trial court’s ruling that it had no jurisdiction and was
    entirely unrelated to the sufficiency of evidence as to any element of the offense or to
    defendant’s guilt or innocence.” Id. at 551, 445 S.E.2d at 613. Based on Scott, this
    Court concluded double jeopardy did not bar the State’s appeal or a retrial of the
    charge against the defendant. Id.
    2. State v. Vestal
    Another panel of this Court later distinguished Priddy and Scott in State v.
    Vestal, 
    131 N.C. App. 756
    , 
    509 S.E.2d 249
     (1998). In Vestal, this Court held that
    double jeopardy barred the State from appealing the trial court’s sua sponte order
    dismissing the case with prejudice, because the police department had violated an
    order from the trial court. 
    Id. at 759
    , 509 S.E.2d at 252. The Court recognized that
    Scott and Priddy:
    mandate the rule against double jeopardy will not bar an
    appeal by the government where the defendant took an
    active role in the dismissal, because defendant essentially
    chose to end the trial and cannot later complain that he
    was ‘deprived of his ‘valued right to have his trial
    completed by a particular tribunal.’
    Id. (emphasis supplied) (quoting Scott, 
    437 U.S. at 99-100
    , 
    57 L. Ed. 2d at 80
    ). Unlike
    in Scott and Priddy, the defendant in Vestal did not take an active role in the process,
    which led to dismissal of the charge against him, but was “involuntarily deprived of
    - 26 -
    STATE V. SCHALOW
    Opinion of the Court
    his constitutional right to have his trial completed by the jury which had been duly
    empaneled and sworn.” Id. at 760, 509 S.E.2d at 252 (emphasis supplied).
    In Priddy and Scott, the defendants successfully sought termination of the
    original proceedings on grounds not related to factual guilt or innocence. The present
    case is similar to Vestal, where the defendant did not take any active role in acquiring
    dismissal. Here, Defendant actively argued against the trial court’s order dismissing
    the indictment and declaring a mistrial in 14 CRS 50887. Although Defendant
    recognized the error in the indictment, he requested the trial proceed on the
    sufficiently alleged offense of attempted voluntary manslaughter.         No manifest
    necessity existed to allow the trial court to declare a mistrial in 14 CRS 50887 over
    Defendant’s persistent objections.
    D. Greater and Lesser-Included Offenses under the Double Jeopardy Clause
    Since we hold no manifest necessity existed to declare a mistrial in 14 CRS
    50887 over the defendant’s objection, we now consider the effects of the erroneous
    declaration. As noted earlier, if an “order of mistrial has been improperly entered
    over a defendant’s objection, defendant’s motion for dismissal at a subsequent trial
    on the same charges must be granted.” Odom, 316 N.C. at 310, 
    341 S.E.2d at 334
    .
    Under the Double Jeopardy Clause, when one offense is a lesser-included
    offense of another, the two offenses are considered the same criminal offense.
    Etheridge, 
    319 N.C. at 50
    , 
    352 S.E.2d at
    683 (citing Brown v. Ohio, 
    432 U.S. 161
    , 53
    - 27 -
    STATE V. SCHALOW
    Opinion of the Court
    L. Ed. 2d 187 (1977); State v. Revelle, 
    301 N.C. 153
    , 
    270 S.E.2d 476
     (1980)). Once
    jeopardy has attached to the lesser-included offense, a defendant may not thereafter
    be prosecuted for either the greater or lesser-included offenses. See id.; Brown, 
    432 U.S. at 169
    , 53 L. Ed. 2d at 196 (“Whatever the sequence may be, the Fifth
    Amendment forbids successive prosecution . . . for a greater and lesser included
    offense.”); State v. Birckhead, 
    256 N.C. 494
    , 499, 
    124 S.E.2d 838
    , 843 (1962) (holding
    that once the defendant had been placed in jeopardy on the lesser-included offense of
    assault with intent to commit rape, double jeopardy principles implicit in the law of
    the land clause of the state constitution prohibited his subsequent prosecution for the
    greater offense of rape).
    Attempted voluntary manslaughter is a lesser-included offense of attempted
    first-degree murder and is considered as the same offense under the Double Jeopardy
    Clause. See State v. Rainey, 
    154 N.C. App. 282
    , 290, 
    574 S.E.2d 25
    , 30, disc. review
    denied, 
    356 N.C. 621
    , 
    575 S.E.2d 520
     (2002); Etheridge, 
    319 N.C. at 50
    , 
    352 S.E.2d at 683
    .   Once jeopardy attaches to one of these offenses, the defendant cannot be
    subsequently tried on the other. See Brown, 
    432 U.S. at 169
    , 53 L. Ed. 2d at 196.
    Once Judge Powell declared a mistrial where no manifest necessity existed in
    14 CRS 50887, the State was prohibited from retrying Defendant on either attempted
    first-degree murder or attempted voluntary manslaughter, since they are considered
    the same offense under the Double Jeopardy Clause. See Etheridge, 
    319 N.C. at 50
    ,
    - 28 -
    STATE V. SCHALOW
    Opinion of the Court
    
    352 S.E.2d at 683
    . As a result, pursuant to double jeopardy, Judge Thornburg also
    erred by denying Defendant’s motion to dismiss prior to trial in 15 CRS 50992. See
    Odom, 316 N.C. at 310, 
    341 S.E.2d at 334
    .
    VII. Defendant’s Previous Writ of Certiorari to this Court
    After Judge Thornburg denied his motion to dismiss made at the start of the
    second trial, Defendant filed a motion for temporary stay and petition for writ of
    supersedeas. He also petitioned this Court for writ of certiorari. Defendant asserted
    the double jeopardy provisions of the North Carolina Constitution and the
    Constitution of the United States prohibited further prosecution of him on the new
    indictment in 15 CRS 50992.
    Defendant had no statutory right to appeal Judge Thornburg’s interlocutory
    order. See State v. Shoff, 
    118 N.C. App. 724
    , 
    456 S.E.2d 875
     (1995) (dismissing the
    defendant’s appeal from an order denying his motion to dismiss on double jeopardy
    grounds), aff’d, 
    342 N.C. 638
    , 
    466 S.E.2d 277
     (1996). However, Appellate Rule 21
    authorizes petition for review of a non-appealable interlocutory order by writ of
    certiorari. N.C. R. App. P. 21(a)(1) (2015).
    We recognize this Court’s order dissolving the temporary stay and denying
    Defendant’s petitions for writs of supersedeas and certiorari “without prejudice,”
    essentially furthered the violation of Defendant’s constitutional rights. See Abney v.
    United States, 
    431 U.S. 651
    , 660-62, 
    52 L. Ed. 2d 651
    , 660-61 (1977) (holding the
    - 29 -
    STATE V. SCHALOW
    Opinion of the Court
    Double Jeopardy Clause protects a defendant not only from conviction after
    successive trial, but from even being subjected to a second trial); State v. Watson, 
    209 N.C. 229
    , 231, 
    183 S.E. 286
    , 287 (1936) (stating the rule against double jeopardy “not
    only prohibits a second punishment for the same offense, but it goes further and
    forbids a second trial for the same offense, whether the accused has suffered
    punishment or not, and whether in the former trial he has been acquitted or
    convicted” (citation omitted)).
    By denying his writ of certiorari, Defendant was subjected to a subsequent trial
    and conviction prior to final determination of whether his constitutional right against
    double jeopardy would be violated by such prosecution.
    VIII. Conclusion
    The original indictment in 14 CRS 50887 was constitutionally and statutorily
    sufficient to provide jurisdiction, allege attempted voluntary manslaughter, and was
    not fatally defective. The trial court erred in finding otherwise.
    Since the indictment was not fatally defective and the trial court retained
    jurisdiction, no manifest necessity existed to declare a mistrial over Defendant’s
    objections.   Once the State’s failure to allege “with malice aforethought” in the
    original indictment was discovered and communicated by Judge Powell in 14 CRS
    50887, he should have required the State to either dismiss the charge against
    - 30 -
    STATE V. SCHALOW
    Opinion of the Court
    Defendant or to proceed to trial on attempted voluntary manslaughter. See Etheridge,
    
    319 N.C. at 50
    , 
    352 S.E.2d at 683
    .
    North Carolina courts have clearly stated “where the order of mistrial has been
    improperly entered over a defendant’s objection, defendant’s motion for dismissal at
    a subsequent trial on the same charges must be granted.” Odom, 316 N.C. at 310, 
    341 S.E.2d at 334
    . With a valid indictment and no manifest necessity to declare a
    mistrial, the State was barred from re-indicting Defendant on attempted murder or
    manslaughter. Judge Thornburg erred by denying Defendant’s motion to dismiss the
    subsequent indictment in 15 CRS 50992. By denying his writ of certiorari, Defendant
    was subjected to a subsequent trial and conviction prior to final determination of
    whether his constitutional right against double jeopardy would be violated by such
    prosecution.
    We do not address the merits of Defendant’s other arguments regarding the
    trial in 15 CRS 50992, as we hold Defendant’s double jeopardy rights were violated
    by his subsequent indictment, prosecution, trial, and conviction in 15 CRS 50992. We
    conclude Defendant’s conviction by the jury and judgment entered thereon for
    attempted first-degree murder in 15 CRS 50922 must be vacated. It is so ordered.
    VACATED.
    Chief Judge McGEE and Judge DIETZ concur.
    - 31 -