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Schalow II and Dismissal for Failure to Join Offenses

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On Jan. 7, 2020, the Court of Appeals decided State v. Schalow (“Schalow II”), ___ N.C. App. ___, 837 S.E.2d 593, temp. stay allowed, ___ N.C. ___, 837 S.E.2d 123 (Jan. 27, 2020), ruling that the State’s third prosecution of the defendant was vindictive and violated the rules for joinder of offenses. I previously wrote about the Court of Appeals decision in Schalow I regarding a double jeopardy issue (on which the defendant also prevailed), here. The vindictive prosecution holding of Schalow II is itself significant, and I encourage everyone to read the opinion in full for that part of the case alone. In this post, though, I wanted to focus on the joinder issue. This issue in the Schalow II opinion represents the first time that our appellate division has ever granted relief for a joinder of offenses violation.

Procedural history. The defendant was initially charged with attempted first-degree murder. The indictment was flawed, however, in that it failed to allege malice, something that the judge noticed after jeopardy attached. The judge granted a mistrial over defense objection, the State obtained a new indictment, and the defendant was convicted of attempted murder. In Schalow I, the Court of Appeals found that the first indictment had properly charged attempted manslaughter, that the trial could have proceeded on that charge, and that the trial judge erred in granting the mistrial. The defendant’s conviction was vacated for the double jeopardy violation, and the N.C. Supreme Court declined review. State v. Schalow, 370 N.C. 525 (2018).

During the pendency of the appeal and after, the District Attorney publicly vowed that the defendant would face justice and receive a sentence like the one that was vacated. The DA subsequently indicted the defendant for various felony assaults and child abuse offenses, all based on the same conduct as in the first prosecution (the new child abuse charges apparently involved the infliction of mental injuries on the child for being present during the defendant’s alleged assaults on his wife). The defendant moved to dismiss this prosecution as another double jeopardy violation, a vindictive prosecution, and in violation of the defendant’s rights to have related offenses joined for trial. When that motion was denied by the trial judge, the defendant sought interlocutory review (as he had in Schalow I, without success). Here, though, the Court of Appeals granted pretrial review and granted the motion to dismiss on joinder and vindictive prosecution grounds.

Joinder of Offenses. G.S. 15A-926(c) provides for a right to dismissal when a defendant, having already been tried for a related offense, is later charged with another offense that would have been joinable at the time of the first trial. This statutory right applies to any related (or joinable) offenses—not just the greater and lesser-included offenses covered by double jeopardy. There are, however, exceptions. Under 15A-926(c)(2) a. and b., if joinable offenses were pending and the defendant failed to move to have them joined, or if the defendant’s joinder motion was denied, the motion to dismiss may be denied (in other words, there is no right to dismissal for failure to join pending charges). Further, this right only applies to a subsequent trial—under 15A-926(c)(3), the right to dismissal for failure to join offenses does not apply where the defendant pled guilty in the earlier case (although a plea arrangement that calls for a plea “in lieu of any and all related charges” will protect a defendant from subsequent related charges). Finally, if the court determines that the State lacked sufficient evidence to try the case at the time of the first trial, or otherwise finds that the interests of justice warrant a subsequent trial, the motion to dismiss may again be denied. See 15A-926(c)(2).

The Warren exception. Initially, the North Carolina Supreme Court interpreted this right to dismissal narrowly, to put it mildly. Under State v. Furr, 292 N.C. 711 (1977), the joinder statute only applied to pending charges, not charges initiated after the defendant’s first trial. As noted in the Defender Manual, this holding “eviscerated” the statutory right of dismissal because the statute provides for no right to dismissal of a pending charge that the defendant failed to move to join or unsuccessfully moved to join. See 6.1G, North Carolina Defender Manual, vol. I. Dicta in Furr suggested the result might be different where the State “held [the charges] in reserve pending the outcome of the [first] trial . . .” Furr, 292 N.C. at 724. A few years later in State v. Warren, 313 N.C. 254 (1985), the Court adopted that suggestion and held: “If a defendant shows that the prosecution withheld indictment on additional charges solely in order to circumvent the statutory joinder requirements, the defendant is entitled under [N.C. Gen. Stat. §] 15A-926(c)(2) to a dismissal of the additional charges.” Id. at 260. This holding, the so-called Warren exception, recognized that the joinder statute applied to joinable offenses brought after a first trial (without expressly repudiating Furr).

Warren places the burden of proof on the defendant to show purposeful circumvention by demonstrating, among other things, either (1) that the State possessed evidence at the time of the initial charges that would have supported the joinable offenses, or (2) that the evidence in the second or subsequent trial would be the same evidence as in the first. Warren observed that a showing of either or both situations “would be some evidence that the delay in bringing the later indictment was for the purpose of circumventing the statute.” Id. However, such evidence would not compel a finding of purposeful circumvention. In Warren, and in other North Carolina cases addressing the issue since then, the appellate courts found the defendant did not meet the requirements for relief—until now.

The State Knew of the Evidence. Before the first attempted murder indictment in Schalow I, the defendant was also charged with various assaults on the victim, including assaults in the presence of his minor child, by way of arrest warrants. All the assaults were dismissed before the defendant’s attempted murder trial. The later assault indictments (in the third prosecution) were based on the same conduct as alleged in those previously dismissed warrants. The later child abuse indictments were likewise based on the same conduct as the earlier assault in the presence of minor warrants. That the district attorney had previously dismissed the assault warrants was evidence that the State “was at least constructively aware of evidence” that would have supported those charges at the time of the original prosecution. Schalow II Slip op. at 18. Further, the prosecution affirmatively represented to the trial judge that there had been no new investigation into these offenses since then. The prosecutor was thus aware of this evidence at the time of the attempted murder prosecution, meeting the first Warren prong—the DA possessed evidence at the time of the initial charges that would have supported the later related charges.

The Evidence Was the Same. The State also represented to the trial court in Schalow II that the evidence in this trial would be the same as in the previous trial. Other than an opinion witness that the State planned to question on unspecified hypothetical scenarios, there was no new evidence and the evidence was expected to be the same as the previous trial. The court found that “unspecified hypothetical opinion testimony from a witness that knows nothing about the case” did not materially alter the evidence and that the defendant therefore also met the second prong of Warren—the evidence in the later trial would be materially the same as in the earlier one. Id. at 20, n.4.

And the State Had No Explanation. In Warren, there was “much stronger evidence” available for the later charge than was available at the time of the first trial, and the State therefore had “valid reasons” for not obtaining an indictment on the related offense sooner. Warren, 313 N.C. at 263. In Schalow II, though, the State had no valid reason for bringing the related charges later. Thus, the defendant was entitled to dismissal. In the court’s words:

[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, and (3) the State has neither argued that it was somehow unable to try the offenses at an earlier time nor proffered any explanation for why the offenses were not tried along with the earlier charge, we hold the Warren exception should apply. Schalow II Slip op. at 21.

These circumstances “compelled” a finding that the State purposefully circumvented the defendant’s joinder rights, and the motion to dismiss therefore should have been granted.

Final Thoughts. Here, the defendant met both prongs of Warren. But under Warren, either prong can do. It may well be that the two situations (possession of the evidence at the time of the first trial and no new evidence) will often arise together. But a defender shouldn’t hesitate to raise the issue and proceed under one or the other, if that situation arises. Further, although the defendant in Schalow was tried twice before, Warren and the joinder statute can apply to any subsequent trial on related offenses. What matters, I think, is that the State previously had the ability and opportunity to try the defendant before, not the number of prior trials.

The State may sometimes have good reason to bring additional charges after an initial trial on a related offense—a victim later succumbs to injuries, or some other new evidence is discovered justifying new charges. But Schalow II breathes new life into the Warren exception and the right to dismissal for failure of the State to join related offenses. Where the State seeks to bring related charges after the defendant has been tried on a joinable offense based on the same evidence as at the first trial (or evidence it possessed at the time of the first trial), it must have a valid explanation for that decision. That the State lost the first trial, as in Schalow II, will not suffice. Other reasons, such as the State not realizing it could join offenses, would also seem to be insufficient. And of course, the withholding of joinable offenses to gain a tactical advantage is impermissible—a protection rooted in due process. See U.S. v. Marion, 404 U.S. 307 (1971).

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