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State v. Resendiz-Merlos

Court of Appeals of North Carolina

October 15, 2019


          Heard in the Court of Appeals 5 June 2019.

          Appeal by Defendant from Order entered 21 August 2018 by Judge Gary Gavenus in Watauga County Superior Court. No. 17 CRS 51149

          Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

          Reeves DiVenere Wright, by John B. "Jak" Reeves and Anné C. Wright, for defendant-appellant.

          HAMPSON, JUDGE

         Factual and Procedural Background

         Luis Alberto Resendiz-Merlos (Defendant) appeals from the trial court's Order on Defendant's Motion to Dismiss (Motion to Dismiss Order). The Record tends to show the following:

         On 27 November 2017, Defendant was indicted on one count of Indecent Liberties with a Child. The Indictment alleged Defendant took indecent liberties with Y.B.G., who was a minor at the time of the alleged incident. M.G. is the mother of Y.B.G. and her sister A.B.G., [1] who allegedly witnessed the incident leading to Defendant's Indictment. Given their relationship with Defendant and his alleged criminal conduct, the State intended to call M.G. and her two daughters as witnesses at Defendant's trial.

         Defendant's case came on for trial before Judge Alan Z. Thornburg (Judge Thornburg) on 22 May 2018. The same morning, Defendant was arraigned and pleaded not guilty, and later that afternoon at approximately 3:00 p.m., the jury was impaneled. After opening remarks from both the State and defense counsel, Judge Thornburg released the jury for the day. Thereafter, the State requested a show-cause order for M.G., explaining:

[M.G.] was personally served with a subpoena to be here and appear herself, as well as bring her two minor children. And she was to be here at 2 p.m. today, did not show up. We've tried to call her multiple times, both her cell phone and her place of work. We were told she did not show up for work today.
We have been in contact with the school who confirmed that the children were at school until around 12:30, I believe, but she checked them out then and there has been no further contact. The interpreter from the school also tried to contact her and there was no answer. I also do have some information from a deputy that went out to her house, and he said it appeared to him someone was home but no one would come to the door. So that is the information from him.

         Judge Thornburg then heard from defense counsel regarding the State's motion for a show-cause order. Defense counsel stated, "we're here, ready to proceed. Based upon conversations with the State I think it's pretty readily apparent that the victim's mother does not wish to prosecute this case. My understanding, I don't think any of them do. We'd ask the matter be dismissed." Judge Thornburg then issued an order to show cause why M.G. should not be held in contempt of court and set a hearing for 9:30 a.m. the following morning.

         The next morning, on 23 May 2018, M.G. and her two children did not show up to court. Judge Thornburg was informed that a sheriff had visited M.G.'s residence the previous night and that morning but could not locate her. The State requested the trial court issue an order for M.G.'s arrest, and arguing in response, defense counsel apprised the trial court:

Your Honor. If my client had not been here to start a trial yesterday an order for arrest would have been issued immediately. He was present. He is ready to proceed. We would oppose the case being held open any longer. The case was held open yesterday.
On the record yesterday I asked that the matter be dismissed. Again, I will ask that it be dismissed. I do not think that it would be appropriate to grant a mistrial. If my client hadn't shown I don't [sic] the Court would have granted a mistrial for the defense. So, I would ask that the matter be dismissed and not held open.

         Thereafter, Judge Thornburg issued an order for M.G.'s arrest and held the matter open until 12:30 that afternoon.

         When the case resumed that afternoon, M.G.'s whereabouts were still unknown. The State moved for a mistrial under N.C. Gen. Stat. § 15A-1063(1), and the trial court heard arguments from both parties regarding the motion. During its argument, the State conceded it did not have sufficient evidence to assert that Defendant in any way caused the witnesses' absence. Rather, the State asserted M.G., Y.B.G., and A.B.G. were necessary and essential witnesses and that their absence had made it "impossible for the trial to proceed in conformity with law" under Section 15A-1063(1), thereby requiring the trial court to grant a mistrial. In response, defense counsel argued against granting a mistrial, citing applicable case law and statutes. After hearing both sides' arguments, Judge Thornburg found that "all three [witnesses were] unavailable for trial due to no fault of the State or the defendant" and that their absence "deprived the State it's [sic] ability to present its case and to meet its burden of proof." Therefore, Judge Thornburg orally declared a mistrial pursuant to Section 15A-1063(1).

         On 5 June 2018, Defendant filed a Motion to Dismiss arguing "that to be tried on this matter again would violate his constitutional protections against double jeopardy." Defendant's Motion to Dismiss came on for a hearing on 12 June 2018 before the trial court. After hearing arguments from both sides, the trial court took the matter under advisement. On 13 June 2018, the trial court entered an Order continuing the hearing on Defendant's Motion to Dismiss until "the entry of any Order by Judge Thornburg granting a mistrial." On 15 June 2018, Judge Thornburg entered a written Order on State's Motion for Mistrial (Mistrial Order) granting the State's motion for a mistrial.

         On 5 July 2018, Judge Gary Gavenus (Judge Gavenus) heard arguments regarding Defendant's Motion to Dismiss. Judge Gavenus denied Defendant's Motion to Dismiss in open court, and on 21 August 2018, Judge Gavenus entered his Motion to Dismiss ...

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