State v. Schalow
| Decision Date | 20 December 2016 |
| Docket Number | No. COA16-330,COA16-330 |
| Citation | 251 N.C.App. 334,795 S.E.2d 567 |
| Parties | STATE of North Carolina v. Leonard Paul SCHALOW |
| Court | North Carolina Court of Appeals |
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.
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, 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.
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, 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.
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 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, 124 S.Ct. 338, 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.
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 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.
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.
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).
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.
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 , 240 N.C.App. 413, 415, 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).
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...
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