State v. Schalow, ___ N.C. App. ___, 795 S.E.2d 567 (Dec. 20, 2016)

The court vacated the defendant’s attempted murder conviction on double jeopardy grounds. The defendant was originally charged and indicted for attempted murder of his wife. After the trial began, the trial court, over the defendant’s objection, ruled that the indictment was fatally defective because it failed to allege that the defendant acted with malice aforethought and declared a mistrial. When the defendant was re-indicted for attempted murder, he asserted that the second prosecution was barred by double jeopardy. The defendant argued that there was no fatal defect in the first indictment; that the trial court abused its discretion in declaring the mistrial; and that once jeopardy attached on the dismissed indictment for attempted voluntary manslaughter, the defendant could not be prosecuted again for the greater offense of attempted murder. The trial court denied the defendant’s motion to dismiss and the defendant was convicted. The court first determined that although the original indictment failed to properly charge attempted first-degree murder, it sufficiently alleged of attempted voluntary manslaughter. Thus, the trial court’s decision to terminate the first prosecution was based on the erroneous belief that the defect in the indictment deprived the court of jurisdiction. An order of mistrial after jeopardy has attached may only be entered over the defendant’s objection where manifest necessity exists. If a mistrial results from manifest necessity, double jeopardy does not bar retrial. However if there is no manifest necessity and the order of mistrial has been improperly entered over a defendant’s objection, jeopardy bars a subsequent prosecution. Here, the original indictment was not fatally defective because it sufficiently alleged attempted voluntary manslaughter. Since the trial court retained jurisdiction, it could have proceeded on attempted voluntary manslaughter, as the defendant requested. The court was careful to distinguish this case from those in which a dismissal or mistrial is entered on the defendant’s motion or with the defendant’s consent, noting: “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.” Having found that no manifest necessity existed to declare a mistrial on the first indictment that properly charged attempted voluntary manslaughter, the court held that double jeopardy precluded a second prosecution for the greater offense of attempted first-degree murder.