Smith's Criminal Case Compendium
Table of Contents
State v. Schalow, 379 N.C. 639, 2021-NCSC-166 (Dec. 17, 2021)
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.