                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,
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                                  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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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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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.



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      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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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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      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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      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. 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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      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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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



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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



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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.



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      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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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).


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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


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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



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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).


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      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



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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,


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                                   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).




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      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



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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.



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        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


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                                     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



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                                    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


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                                   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 -
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                                  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,



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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 -
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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




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                                 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 -
