State v. Schalow

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,
-2-
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
-3-
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
-5-
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.
-6-
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
-7-
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.
-8-
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).
-9-
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. § 15-144implicitly 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
- 10 -
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.
- 14 -
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 -