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Appeals court tosses conviction in a horrific wife beating case

Leonard Paul Schalow Leonard Paul Schalow

A Henderson County man convicted of attempted murder for horrific and extended beatings of his wife could be set free after a North Carolina appeals court threw out his conviction on Tuesday.
Leonard Paul Schalow was convicted of attempted first-degree murder last year after a trial in which the victim testified that he had promised to “torture and kill her over an extended period of time,” according to the appeals court order. After Henderson County jury convicted him of the charge, Schalow, 49, was sentenced to up to 17 years in prison. He is currently incarcerated in a maximum security prison in Taylorsville but barring a successful move by District Attorney Greg Newman to intervene could be released soon, court officials said.
Joseph L. Hyde, an assistant attorney general who argued the state’s case on appeal, said he could not say yet whether the state would try to prevent Schalow’s release.

Newman said he had spoken with the attorney general's office and urged the appellate lawyers to appeal the ruling.

“They would have to request that the North Carolina Supreme Court intervene," he said. "They evaluate whether to make the reuest. I'm urging them to do that given the violent nature of what this man did. "In addition to that he was given a significant sentence. They can’t ignore that."

If the attorney general's office decides not to ask for the Supreme Court review, or if the high court doesn't grant it, Schalow could be released as early as Jan. 9, Newman said.

Newman said he had been "direct contact" with Erin Schalow.

"She’s really afraid and concerned of couse and they have a child who was present when these things happened," he said.

Schalow’s appeal of his conviction centered on the omission of a single phrase in the original indictment, a judge’s ruling of a mistrial halfway through the first trial and Schalow’s conviction based on a second indictment and trial. The actions of Newman and Henderson County’s chief resident superior court judge, Mark Powell, violated Schalow’s protection under the Constitution from double jeopardy — a second trial on the same offense, said the order by a three-judge panel made up of made up of Chief Judge Linda M. McGee, Richard Dietz and John M. Tyson and written by Tyson.

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After marrying in 1997, Erin Henry Schalow and Leonard Schalow moved to North Carolina in 2010.
Erin Schalow testified during the trial that Schalow assaulted her almost daily from December 2013 to February 2014 — often in front of their minor son — kicking her with hard-toe boots, hitting her with walking sticks and an aluminum crutch and strangling her until she passed out at least three times, Judge Tyson wrote in the appeals court order. Schalow attacked her with a knife at least twice. Erin Schalow testified that her husband had warned her to “make my peace” with their son because Schalow “was going to torture and kill her over an extended period of time,” the judge wrote in summarizing the facts of the case.
Coworkers at the Brevard nursing home where Erin Schalow worked noticed her injuries, which she tried to explain as having been caused by falling down stairs, slamming her hand in a car door or running into a wall. She finally confided to one coworker that her husband had hit her. Then, in late February Erin Schalow arrived at work barely able to walk, bleeding from her temple and mouth, her eyes blackened, her jaw so swollen she could not talk. Her boss called police. Erin told Henderson County Detective Dottie Parker that her husband had beaten her the night before. The detective advised her to go to the hospital immediately for treatment of her injuries, which were so severe that she required hospitalization for three weeks.
“The indications of trauma that we saw on the victim — it’s not what you get tripping and falling,” Sheriff Charlie McDonald told WLOS-TV at the time, adding that the trauma would extend to the boy, then 9 years old. “It’s bad enough for the victim but when you have children involved you’re setting things in play that just aren’t healthy.”

 

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The indictment that Newman later withdrew charged Schalow with attempted first-degree murder. In March 2015, the case went to trial. After prosecutors had completed their case before a jury, Judge Powell alerted the attorneys that the indictment failed to allege that Schalow’s actions had been committed “with malice aforethought,” as state law requires for a charge of attempted murder. When Powell convened court the next morning, prosecutors asked him to dismiss the original indictment so they could file a corrected version that included the “malice aforethought” element. The public defenders argued against the dismissal, saying that the original indictment was not faulty, that it contained the lesser charge of attempted voluntary manslaughter and that the trial that had already begun should continue. Dismissing the current indictment and reindicting their client, the defense attorneys argued, would amount to double jeopardy. The defense attorneys’ warned to no avail that a conviction based on a second indictment would likely be overturned on appeal.
Siding with the district attorney, Judge Powell dismissed the indictment as defective and declared a mistrial. Prosecutors filed the second indictment two months later, on May 18, 2015, this time adding the omitted phrase. Schalow, the indictment said, “unlawfully, willfully and feloniously did with malice aforethought attempt to murder and kill Erin Schalow by torture.”
Four days later, the defendant filed a motion to dismiss the corrected indictnment on the grounds that it violated the double jeopardy protections of the Fifth Amendment. The “trial court abused its discretion in declaring a mistrial,” the defense argued. Two weeks later, Judge Alan Z. Thornburg upheld Judge Powell’s ruling on the issue of the mistrial and reindictment. “The law is settled that there is no double jeopardy bar to a second trial when a charge is dismissed because an indictment … is defective,” Thornburg said.
Before the second trial and again once the second trial started the defense filed motions seeking the dismissal of the corrected indictment. Again, the motions were denied.

Newman defended Powell's handling of "what is really a procedural issue." The appeals court left prosecutors with no option besides a state Supreme Court appeal. "It was all or nothing," he said. "It’s like we're just done. Given the gravity of what’s happened here we're hoping that the North Carolina Supreme Court will take a fresh look at it."

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A Henderson County jury convicted Schalow of attempted first-degree murder. Schalow was sentenced to a prison term of 13 to 16 years. Schalow’s attorneys appealed.
The defense cited State v. Bullock, another appellate case in which prosecutors had omitted the “malice aforethought” phrase in an indictment. In Bullock, the appeals court held that “the proper remedy was to remand the case for resentencing” on the lesser charge of attempted voluntary manslaughter — the same sort of course correction that was available to Newman in the Schalow case, the defense argued.
“Had the trial proceeded and the impaneled jury returned a guilty verdict on attempted first-degree murder … that indictment would have supported a conviction and sentence … of attempted voluntary manslaughter,” the appeals court wrote. Because the original indictment contained an offense “upon which trial could have properly proceeded” Judge Powell was wrong to rule the indictment defective and Judge Thornburg wrong to uphold the ruling, the appeals court said.
On the Fifth Amendment argument — barring a defendant “… to be twice put in jeopardy of life or limb” for the same offense — the appeals court agreed with the defense that the second indictment and trial had subjected Schalow to double jeopardy. “Once Judge Powell declared a mistrial where no manifest necessity existed, the state was prohibited from retrying the defendant on either attempted first-degree murder or attempted voluntary manslaughter, since they are considered the same offense under the Double Jeopardy Clause,” the appellate panel said. Because the original indictment was sufficient to allow the state to proceed, Judge Powell erred in finding that indictment was “fatally defective. Instead, the appellate court added, the trial judge should have either required the state to dismiss the charge or continue the trial in order to win a conviction on the lesser charge of attempted voluntary manslaughter.

Newman defended his decision to start over when Judge Powell flagged the indictment defect. It would have been risky, he said, to assume that a trial judge would adequately explain the option of convicting on a lesser charge.

"Here's the thing," he said. "In order to get an instruction from the judge (to the jury) there have to be facts to support that. There have to be facts in the trial. Our facts did not meet the definition of the manslaughter charge. Our facts were right where they needed to be (for an attempted murder charge). I make absolutely no apology for not pursuing a different course. What he did was try to kill her and those are the facts that needed to be pursued."