Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 06/25/2022
E.g., 06/25/2022

The facts of this case were previously summarized following the Court of Appeals decision in State v. Schalow, 269 N.C. App. 369 (2020) (“Schalow II“), available here.  The defendant was initially charged with attempted murder and several counts of assault against his wife, but the state only proceeded to trial on attempted murder and dismissed the assault charges. After discovering the indictment for attempted murder failed to allege malice, the court granted the state a mistrial over the defendant’s objection. The defendant was subsequently tried for that charge on a new indictment and convicted. On appeal, the defendant argued in State v. Schalow, 251 N.C. App. 354 (2018) (“Schalow I”) that the mistrial was granted in error because it sufficiently alleged manslaughter as written, and therefore the second prosecution violated double jeopardy. The appellate court agreed and vacated the conviction. In addition to seeking discretionary review of the decision in Schalow I (which was ultimately denied), the state obtained several new indictments against the defendant for felony child abuse and the related assaults against his wife. The defendant’s pretrial motion to dismiss the new charges on the basis of vindictive prosecution, double jeopardy, and failure to join charges under G.S. 15A-926 was denied, and the defendant sought discretionary appellate review, which was granted. The Court of Appeals held that the trial court erred by denying the defendant’s motion to dismiss in Schalow II, finding that the defendant was entitled to a presumption of prosecutorial vindictiveness and also met his burden of showing that the state withheld the prior indictments to circumvent the joinder requirements of G.S. 15A-926, which required dismissal of the charges. Based on those holdings, the appellate court did not reach the double jeopardy issue.

The state sought discretionary review of the appellate court’s rulings in Schalow II, which was granted and resulted in the current decision. On review, the state Supreme Court court reversed the Court of Appeals on the two issues it decided, and remanded the case to the lower court to reconsider the remaining double jeopardy argument.

First, regarding vindictive prosecution, the higher court explained that North Carolina v. Pearce, 395 U.S. 711 (1969) and Blackledge v. Perry, 417 U.S. 21 (1974) establish a presumption of vindictiveness when a defendant receives a more serious sentence or faces more serious charges with significantly more severe penalties after a successful appeal, but noted that subsequent cases have declined to extend that presumption to other contexts. The filing of new or additional charges after an appeal, without more, “does not necessarily warrant a presumption of prosecutorial vindictiveness,” even when there is “evidence that repeated prosecution is motivated by the desire to punish the defendant for his offenses.” The Court of Appeals erred in concluding that the defendant faced a more severe sentence for substantially the same conduct under the new set of charges, since G.S. 15A-1335 independently prohibits imposing a more severe sentence in these circumstances, making that outcome a “legal impossibility” in this case. The court also rejected the defendant’s argument that under U.S. v. Goodwin, 457 U.S. 368 (1982), the presumption of vindictiveness applies whenever there has been a change in the charging decision after an initial trial is completed. The language in Goodwin regarding the lower likelihood of vindictiveness in pretrial charging decisions did not establish “that such a presumption was warranted for all post-trial charging decision changes,” and given the harshness of imposing such a presumption, the court was unwilling to find that it applied here. Additionally, although the prosecutor in this case made public statements about his intent to pursue other charges against the defendant if the ruling in Schalow I were upheld, those statements indicated an intent to punish the defendant for his underlying criminal conduct, not for exercising his right to appeal. Concluding that the presumption of vindictiveness did not apply and actual vindictiveness was not established, the state Supreme Court reversed the appellate court on this issue.

Second, the state Supreme Court also disagreed with the Court of Appeals’ conclusion that the defendant’s motion to dismiss should have been granted for failure to join offenses under G.S. 15A-926. The statute provides that after a defendant has been tried for one offense, his pretrial motion to dismiss another offense that could have been joined for trial with the first offense must be granted unless one of the enumerated exceptions applies. Pursuant to State v. Furr, 292 N.C. 711 (1977), this statute does not apply to charges that were not pending at the time of the earlier trial. However, under State v. Warren, 313 N.C. 254 (1985), the later-filed charges must nevertheless be dismissed if the prosecutor withheld those charges in order to circumvent the statutory requirement. If either or both of two circumstances are present — (i) during the first trial the prosecutor was aware of evidence that would support the later charges, or (ii) the state’s evidence at the second trial would be the same as the first trial — those factors will “support but not compel” a finding that the state did withhold the other charges to circumvent the statute. At the trial level, the defendant in this case only argued that dismissal was required by the statute, but did not argue that dismissal was required under Warren even though the charges were not pending at the time of the prior trial; therefore, the argument presented by the defendant on appeal was not properly preserved for review, and the appellate court erred by deciding the issue on those grounds. Additionally, the Court of Appeals erred by holding that the trial court was required to dismiss the charges upon finding that both Warren factors were present. Even if one or both Warren factors were found, that will “support” a dismissal by the trial court, but it does not “compel” it. The appellate court incorrectly converted “a showing of both Warren circumstances into a mandate requiring dismissal,” contrary to case precedent.

The case was remanded for reconsideration of the defendant’s remaining argument that prosecution for the assault charges would also violate double jeopardy, which the Court of Appeals declined to address.

State v. Schalow (“Schalow II”) [Duplicated], ___ N.C. App. ___, ___ S.E.2d ___ (Jan. 7, 2020) rev’d in part on other grounds, ___ N.C. ___, 2021-NCSC-166 (Dec 17 2021)

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.

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