The defendant was charged with attempted first-degree murder and various other assaults against his wife in Henderson County. The State proceeded only on the attempted murder at trial. After the jury was empaneled, the trial court discovered that the indictment failed to allege malice, an essential element for attempted first-degree murder. The trial court ordered a mistrial over the defendant’s objection and dismissed the indictment. At retrial, the defendant’s double jeopardy argument was overruled and the defendant was convicted of attempted murder. On appeal in that case (“Schalow I”), the Court of Appeals determined that the second prosecution violated the Double Jeopardy Clause and vacated the convicted (Phil Dixon blogged about that case, here). Following that ruling, the State sought discretionary review in the Supreme Court and indicted the defendant on 14 counts of felony child abuse relating to the assaults on his wife. In remarks to the media, the District Attorney stated as follows:

If . . . the Supreme Court refuses to take up the case, then I have a plan to address that circumstance and will take additional action to see that [Defendant] is held accountable for his actions. . . . I will do everything that I can do to see that [Defendant] remains in custody for as long as possible.

The N.C. Supreme Court declined to review the Court of Appeals decision in Schalow I, and the DA posted on social media about his intentions to ensure the defendant stayed in custody, that he received a sentence similar to his first, and to prosecute the defendant again. Additional indictments for assaults against his wife were brought. All of the new charges in the third prosecution were based on the same alleged assaults against the defendant’s wife that constituted the basis for the first prosecution.

At trial, the defendant again moved to dismiss. He claimed the prosecution violated double jeopardy, constituted a vindictive prosecution, and was in violation of his rights to joinder of offenses. The trial court denied the motion, and the defendant sought certiorari review of that decision pretrial, which was granted. [The defendant had previously sought pretrial review of the denial of his motion to dismiss for double jeopardy in Schalow I and was denied.] The court granted relief on the vindictive prosecution and joinder claims.

(1) Under North Carolina v. Pearce, 395 U.S. 711 (1969), it is a due process violation for the court to impose penalties on the defendant in response to the defendant’s successful appeal or collateral attack. Blackledge v. Perry, 417 U.S. 21 (1974) later extended the protection from vindictive acts to charging decisions by the prosecution, so that the State could not try the defendant for more serious charges following the defendant’s successful appeal from the original charges of conviction. “The Blackledge court clarified that a defendant need not show that the prosecutor actually acted in bad faith; instead, where the reviewing court determines that ‘a realistic likelihood of ‘vindictiveness’’ exists, a presumption of vindictiveness may be applied.” To demonstrate a vindictive prosecution, the defendant must show that either actual intent to punish the defendant for the lawful exercise of his rights, or that the facts support presuming vindictiveness and the State failed to rebut that presumption. If a prosecution is found to be vindictive, the conviction must be vacated.

Here, the district attorney charged the defendant three different times for the same conduct. Each time, the district attorney increased the seriousness and number of charges, resulting in greater sentencing exposure to the defendant at each prosecution. The first case charged attempted manslaughter (based on the flawed indictment for attempted first-degree murder); the second case involved attempted first-degree murder; the third case involved 14 counts of child abuse, three class C assaults, two class F assaults, and one class H assault, with aggravating factors alleged in each. The defendant was facing over 35 years more time in prison in the third case, compared to the second. “[W]here a defendant is indicted on charges carrying a ‘significantly increased potential period of incarceration’ after the defendant ‘does what the law clearly permits him to do’—here, appealing from the judgment in the Second Prosecution—a reviewing court may presume prejudice.” The presumption here was “particularly appropriate here” due to the involvement of the same prosecutor at each stage. The court rejected the State’s argument that no presumption of vindictiveness should apply, because the State was only attempting to correct pleadings errors. The defendant was exposed to 19 more charges in the third prosecution, carrying significantly increased penalties. This was not rectifying pleading defects and warranted a presumption of vindictiveness.

The State also failed to rebut the presumption of vindictiveness. The only evidence showed that the DA charged in response to the outcome of its appeal of Schalow I and that the DA was determined to ensure the defendant stayed in custody “as long as possible.” Even if this did not amount to actual vindictiveness (which the court did not decide), the defendant showed that his case warranted a presumption of vindictiveness which the State failed to overcome. “[T]o hold such evidence can be sufficient to overcome a presumption of vindictiveness would effectively eviscerate the presumption altogether, and thereby render Pearce and its progeny nugatory.” The new charges were therefore dismissed.

(2) Under G.S. 15A-926, related offenses may be joined for trial. If a defendant is tried on a joinable offense and thereafter is put on trial for another related offense, he may move for dismissal for failure to join offenses, subject to the exceptions in the statute. Under State v. Warren, 313 N.C. 254 (1985), where the prosecution withholds additional charges in an effort to avoid statutory joinder of offenses, the new charges must be dismissed. In the words of the Warren court:

If a defendant can show, for example, that during the first trial the prosecutor was aware of substantial evidence that the defendant committed the crimes for which he was later indicted, this would be some evidence that the delay in bringing the later indictment was for the purpose of circumventing the statute. A showing that the State’s evidence at the second trial would be the same as the evidence presented in the first trial would also tend to show that the prosecutor delayed the indictment on the additional crimes for such purpose. A finding of either or both circumstances would support but not compel a determination by the trial court that the prosecutor withheld the additional indictment in order to circumvent the statute.

Here, the new charges were all based on the same conduct as the original assault charges that were dismissed before trial, and the child abuse allegations were apparently based on the theory that the defendant assaulted his wife in the presence of the child, causing mental injury. The State also represented to the trial court in a pretrial hearing that there had been no new investigation and would be no new substantive evidence at trial. The defendant therefore met both prongs of Warren—the prosecutor knew about substantial evidence of the assaults and child abuse during the earlier prosecutions, and the evidence necessary to prove those offense was no different than the evidence presented in the earlier trial. While these findings “support but do not compel” the conclusion that the State purposefully held back additional charges to circumvent joinder rights (and no prior case has ever reversed the denial of motion to dismiss based on Warren), here, it was appropriate. According to the court:

[B]ecause (1) Defendant has shown that both Warren circumstances are present, (2) the State has had multiple previous opportunities to join the offenses on which it now seeks to try Defendant, (3) the State has neither argued that it was somehow unable to try the offense at an earlier time nor proffered any explanation for why the offenses were not tried along with the earlier charge, we hold that the Warren exception should apply.

The defendant was therefore entitled to dismissal of the new charges for violation of his rights to statutory joinder of offenses. The court did not rule on the defendant’s double jeopardy argument because it granted relief on the other two claims. The matter was reversed and remanded for the motion to dismiss to be granted.

The trial court did not err by joining for trial offenses that occurred on different dates. The first set of offenses occurred on May 15, 2015 and involved assaults and sexual assaults on B.A. The second set of charges arose from a breaking or entering that occurred approximately eight months later, when the defendant entered a neighbor’s home looking for B.A. The defendant argued that certain testimony offered by the neighbor was inadmissible character evidence as to the first set of charges but was essential testimony as to the second set of charges, to establish guilt of another. The court however found that the evidence would not have been admissible for that purpose; to be admissible, guilt of another evidence must do more than create mere conjecture of another’s guilt. Here, the evidence was mere speculation that another person committed the crime. Furthermore the testimony was not inconsistent with the defendant’s guilt.

The trial court did not abuse its discretion by joining charges for trial. The defendant was indicted for: two counts of possession of a firearm by a felon; first-degree murder of Frink; two counts of assault with a deadly weapon with intent to kill inflicting serious injury; two counts of conspiracy to commit first-degree murder; first-degree murder of Jones; first-degree kidnapping; conspiracy to commit first-degree kidnapping; possession with intent to sell and/or deliver cocaine; and possession of a stolen firearm. Although the charges stemmed from a series of events that occurred over two months, they were factually related. The defendant participated in the shooting of Frick, with two accomplices, Reaves and Jones. The next night the defendant and Reaves were pulled over, and two firearms were recovered from their possession, one of which turned out to have been used in the earlier shooting. This evidence shows a direct link between the possession of a firearm by a felon charges and the charges arising directly out of the shooting. The discovery of the cocaine forming the basis for the drug charge occurred during the traffic stop. The charges related to the Jones murder were connected where the evidence showed that the defendant killed Jones to prevent Jones from implicating him in the earlier Frink murder. 

The court rejected the defendant’s argument that he received ineffective assistance of counsel when his lawyer failed to object to joinder of the defendant's charges of armed robbery and possession of a firearm by a felon. The defendant argued that the felon in possession statute was a “civil regulatory measure” that could not be joined with a criminal charge. The court held that felon in possession is a criminal offense that was properly joined for trial.

The trial court did not abuse its discretion by joining charges of felony assault with a deadly weapon and possession of stolen firearms. There was a sufficient transactional connection (a firearm that was the basis of the firearm charge was used in the assault) and joinder did not prejudicially hinder the defendant’s ability to receive a fair trial. 

In this Haywood County case, three defendants appealed their judgments for various drug-related offenses, arguing error in (1) joining their cases for trial, (2) admission of certain testimony, (3) denying their motions to dismiss. The Court of Appeals found no error. 

In October of 2018, the Haywood County Sheriff's Office executed a search warrant on three apartments, finding heroin and cocaine along with drug paraphernalia. The three defendants were found together in one of the apartments, along with drugs and a large amount of cash. The defendants came to trial in August of 2021, and the State moved to join the cases for trial; the trial court allowed this motion over their objections. 

For (1), the court noted that G.S. 15A-926 permits joinder in the discretion of the trial court, with the primary consideration being the fair trial for each defendant. Here, no confessions or affirmative defenses were offered by any defendant, and “[b]ecause there were no antagonistic or conflicting defenses that would deprive Defendants of a fair trial,” the court found no error in joining the cases. Slip Op. at 8. 

Looking to (2), the court explained that one defendant objected to the testimony by an officer referencing several complaints about a black car driven by the defendant. The court noted that the officer’s testimony was not hearsay under Rule of Evidence 801, as it was not being offered to prove the truth of the matter asserted. Instead, the officer’s testimony explained his subsequent actions in observing the black car, which led to conducting surveillance on the apartments. 

Finally, in (3), the court found that two of the defendants had constructive possession of the drugs sufficient to support their convictions for possession despite not having exclusive possession of the apartments, as sufficient evidence of incriminating circumstances linked the defendants to the drugs and paraphernalia. The court noted this constructive possession, along with a rental application for one of the apartments, supported the finding of a conspiracy between the defendants to traffic the drugs. As a result, the trial court did commit error by denying the defendants’ motions to dismiss.