Mistrial Leads to Double Jeopardy Violation in State v. Schalow

In State v. Schalow (Dec. 20, 2016), the trial court’s error in declaring a mistrial led to a successful claim of double jeopardy by the defendant and allowed him to avoid further prosecution for attempted murder. Schalow sheds light on the relatively obscure (at least to me) law of mistrials and double jeopardy. Facts. The case involved allegations of serious domestic abuse by the defendant against his wife over the course of several months. The State charged attempted first-degree murder, and the defendant went to trial. After the jury was impaneled and the first day of evidence, the trial judge alerted the parties that the indictment failed to allege “malice aforethought,” as required by G.S. 15-144 (the short-form indictment statute for homicides). “Malice” is an essential element of both murder and attempted murder. If an indictment fails to allege malice, a charge of murder is interpreted as charging voluntary manslaughter, which does not require malice. A charge of attempted murder failing to allege malice is likewise interpreted as charging attempted voluntary manslaughter. See State v. Bullock, 154 N.C. App. 234 (2002); accord State v. Wilson, 236 N.C. App. 472 (2014). The State moved for a mistrial in order to seek a corrected indictment and charge attempted murder. The defense objected to the mistrial and argued that the case should proceed before that jury on attempted voluntary manslaughter, which is a lesser-included offense of attempted murder and which was adequately alleged in the indictment. See State v. Rainey, 154 N.C. App. 282 [...]