State v. Resendiz-Merlos, ___ N.C. App. ___, 834 S.E.2d 442 (Oct. 15, 2019)

In this Watauga County case for indecent liberties, the defendant was accused of improper contact with a child in an incident allegedly witnessed by the child’s sister and mother. The State sought to compel the mother and two daughters to testify at trial. After jury was impaneled and opening statements were given, the court released the jury for the day. The State sought a show-cause order for the mother of the alleged victim, stating that the witness and her children were not present despite having been personally served with a subpoena. The State recounted efforts to reach the witnesses at the mother’s home and work, as well as at the children’s school. The defense opposed the show-cause order and sought to have trial proceed. The trial court issued the show-cause for the mother and set the matter for hearing the next morning. The mother and children again did not appear in court the next day and the trial court received more information that the witnesses could not be found. The State then sought an order for the mother’s arrest. Defense counsel again opposed the request, asking that the trial proceed or be dismissed and opposing any mistrial. The trial court issued the order for the mother’s arrest and held the proceedings open until later in the afternoon. When the witnesses were still not present, the State moved for a mistrial, arguing that the witnesses were “necessary and essential” and that trial could not proceed without them. The defendant again opposed a mistrial. The trial judge granted the mistrial, finding that the witnesses were not available due to no fault of the parties and “that their absence ‘deprived the State of its ability to present its case and to meet its burden of proof.’” At retrial, the defendant filed a motion to dismiss, arguing that a second trial would violate double jeopardy. The trial court denied the motion, ruling that because an earlier Superior Court judge had found a manifest necessity supporting the mistrial order, the present trial court could not overrule that earlier decision. The motion was therefore denied. The defendant sought review in the Court of Appeals by way of petition for writ of certiorari, which was granted. The Court of Appeals reversed.   

(1) The State first argued that appellate review should be limited to the motion to dismiss and should not consider the propriety of the mistrial order. The court disagreed. Under State v. Odom, 316 N.C. 306 (1986), “where the order of mistrial has been improperly entered over a defendant’s objection, defendant’s motion for dismissal at a subsequent trial must be granted.” In order to determine whether the motion to dismiss should have been granted, the court must also determine the propriety of the mistrial order.  The court observed that it reviewed both the order denying the motion to dismiss and the mistrial order in the recent case of State v. Schalow, 215 N.C. App. 334 (2016), disc. rev. improvidently allowed, 370 N.C. 525 (2018), on similar facts.

(2) The State also alleged that the constitutional issue was unpreserved, because the defendant failed to object to the mistrial. Rejecting this contention, the court noted:

Although Defendant never formally recited the word “objection” or noted any “exception” to the trial court’s declaration of a mistrial, he did ‘present the trial court with a timely request’ to deny the State’s motion for a mistrial, ‘stating the specific grounds for the ruling sought.’

While the defendant is generally not entitled to plead double jeopardy when he fails to object to the mistrial, here, the trial court heard arguments and ruled on the issue. This was sufficient to preserve the issue for appellate review.

(3) The trial court erred in denying the motion to dismiss based on its perceived inability to overrule another Superior Court judge. Under Odom, the court faced with a double jeopardy motion must determine whether the mistrial order was appropriate. While a mistrial normally does not support a double jeopardy claim, a mistrial must be supported by a manifest necessity when the defendant objects. A mistrial may be declared due to “physical necessity”—such as when a juror can no longer participate in the trial—or due to the “necessity of doing justice”—to protect the court system from “fraudulent practices” or where a fair trial has become impossible. Where the State seeks a mistrial, it has a “heavy” burden to carry in justifying the order. When the mistrial is based on missing or unavailable evidence, the “strictest scrutiny” applies under Arizona v. Washington, 434 U.S. 497 (1978). The inquiry looks at what the State knew at the time that trial began, and close cases should be resolved “in favor of the liberty of the citizen. . . “ Here, “it is clear the State took a chance by impaneling the jury ‘without first ascertaining’ that its witnesses . . . were present and available to testify.” There was no record evidence of any misconduct on the defendant’s part causing the witnesses to be absent, and all three witnesses were under subpoena before trial. The State assumed the risk that its witnesses would not appear, and that jeopardy would attach once the jury was impaneled. These circumstances did not constitute a manifest necessity. The court therefore unanimously reversed the trial court, remanding for the trial court to grant the motion to dismiss.