IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-149
Filed: 15 October 2019
Watauga County, No. 17 CRS 51149
STATE OF NORTH CAROLINA
v.
LUIS ALBERTO RESENDIZ-MERLOS
Appeal by Defendant from Order entered 21 August 2018 by Judge Gary
Gavenus in Watauga County Superior Court. Heard in the Court of Appeals 5 June
2019.
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
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Opinion of the Court
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.
1 Initials have been used to protect the privacy of the mother and her two daughters.
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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.
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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
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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 Order, which contained the following Findings of Fact and Conclusions of
Law:
FINDINGS OF FACT
1. That on August 17, 2017, the defendant was charged with
Taking Indecent Liberties with a Child.
2. That on May 22, 2018, the defendant entered a plea of not
guilty and a jury was subsequently impaneled.
3. That on May 23, 2018, the State made an oral motion for a
mistrial based on the fact that the alleged victim in this case,
who is a minor child, her sister, who is also a minor child, and
the children’s mother were not present in court, despite having
been subpoenaed, and could not readily be located by law
enforcement.
4. That the Defendant objected to the motion on that date and
presented argument as to why it should not be granted.
5. That the Honorable Alan Z. Thornburg granted the State’s
motion over Defendant’s objection and entered an Order
declaring a mistrial and concluding as a matter of law that the
unavailability of all three witnesses made it impossible for the
trial to proceed in conformity with the law.
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CONCLUSIONS OF LAW
....
2. That in order to grant Defendant’s Motion, the Court would
have to make a finding that Judge Thornburg’s Order for
Mistrial was inappropriate;
3. That this Court is not an appellate one and thus, cannot
overrule another Superior Court judge’s Order[.]
Based on these Findings and Conclusions, Judge Gavenus denied Defendant’s Motion
to Dismiss.
On 26 September 2018, Defendant filed with this Court a Petition for Writ of
Certiorari, Petition for Writ of Supersedeas, and Motion for Temporary Stay Pending
Decision (Certiorari Petition). In his Certiorari Petition, Defendant requested this
Court issue a “writ of certiorari to the Superior Court of Watauga County to permit
review of Judge Gavenus’ order denying Defendant’s Motion to Dismiss, and Judge
Thornburg’s Order declaring a mistrial.” By Order on 5 October 2018, our Court
granted Defendant’s Certiorari Petition “for the purpose of reviewing the order
entered 21 August 2018 by Judge Gary Gavenus.”
Issue
The dispositive issue on appeal is whether Judge Gavenus erred in denying
Defendant’s Motion to Dismiss on the grounds that double jeopardy barred
Defendant’s second trial.
Standard of Review
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We review double jeopardy issues de novo. State v. Sparks, 362 N.C. 181, 186,
657 S.E.2d 655, 658 (2008); see State v. Newman, 186 N.C. App. 382, 386, 651 S.E.2d
584, 587 (2007) (“The standard of review for [double jeopardy issues] is de novo, as
the trial court made a legal conclusion regarding the defendant’s exposure to double
jeopardy.” (citation omitted)). “Under a de novo review, the court considers the
matter anew and freely substitutes its own judgment for that of the lower tribunal.”
State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and
quotation marks omitted).
Analysis
I. Preservation Issues
As a threshold matter, the State asserts our review in this case is limited for
two reasons. First, the State contends that because our Order granting Defendant’s
Certiorari Petition only granted review of Judge Gavenus’s Motion to Dismiss Order,
we cannot address whether Judge Thornburg erred by entering his Mistrial Order.
However, as our Supreme Court has made clear, “where the order of mistrial has been
improperly entered over a defendant’s objection, defendant’s motion for dismissal at
a subsequent trial on the same charges must be granted.” State v. Odom, 316 N.C.
306, 310, 341 S.E.2d 332, 334 (1986) (emphasis added) (citations omitted). It
necessarily follows that in order to determine whether Judge Gavenus erred by failing
to grant Defendant’s Motion to Dismiss, we must consider whether Judge
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Thornburg’s “order of mistrial [was] improperly entered over [Defendant’s]
objection[.]” Id. (citations omitted).
We also find support for this position in this Court’s decision in State v.
Schalow, 251 N.C. App. 334, 795 S.E.2d 567 (2016), disc. rev. improvidently allowed,
370 N.C. 525, 809 S.E.2d 579 (2018). In Schalow, the defendant was charged and
indicted for attempted murder. Id. at 336, 795 S.E.2d at 570. After the jury was
impaneled, the trial judge alerted the parties to the fact that the indictment was
potentially fatal. Id. at 337, 795 S.E.2d at 570. Thereafter, the State requested the
trial court dismiss the indictment as defective, and the defendant objected. Id. The
trial court then dismissed the indictment and declared a mistrial. Id. Prior to the
defendant’s second trial, the defendant filed a motion to dismiss arguing his
prosecution was barred by his right to be free from double jeopardy, which motion the
trial court denied. Id. at 337-38, 795 S.E.2d at 570.
The defendant in Schalow then petitioned this Court for a writ of certiorari,
“request[ing] this Court to stay and reverse [the second trial court’s] orders denying
Defendant’s motion to dismiss and habeas relief.” Id. at 338, 795 S.E.2d at 571.
Although our Court erroneously denied the defendant’s petition, after the defendant’s
conviction at his second trial, the defendant appealed, and our Court reviewed the
first trial court’s mistrial order to determine whether the second trial court erred by
denying the defendant’s motion to dismiss based on double jeopardy grounds. Id. at
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339-43, 795 S.E.2d at 571-74. Thus, even though the defendant only petitioned our
Court to review the order denying his motion to dismiss, our review after his second
trial encompassed both this order and the first trial court’s mistrial order. Id.
Therefore, in the case sub judice, our review of Judge Gavenus’s Motion to Dismiss
Order necessarily entails a review of whether Judge Thornburg’s Mistrial Order was
erroneously entered. See id.; see also Odom, 316 N.C. at 310, 341 S.E.2d at 334.
The State further argues our review is limited in this case because Defendant
failed to preserve his double jeopardy claim by not objecting to Judge Thornburg’s
declaration of a mistrial. According to the State, Defendant was required to state “I
object” in order to preserve his double jeopardy argument for appellate review.
In support of this argument, the State cites State v. Lachat, 317 N.C. 73, 343
S.E.2d 872 (1986). Our Supreme Court in Lachat held that in “a noncapital case, . . .
a defendant is not entitled by reason of former jeopardy to dismissal of the charge
against him, where he failed to object to the trial court’s termination of his first trial
by a declaration of mistrial.” Id. at 85, 343 S.E.2d at 878 (citation omitted). Our
Supreme Court’s pronouncement in Lachat is in accord with the general rule that “a
constitutional question which is not raised and passed upon in the trial court will not
ordinarily be considered on appeal.” State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d
535, 539 (1982) (citations omitted). “In order to preserve a question for appellate
review, a party must have presented the trial court with a timely request, objection
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or motion, stating the specific grounds for the ruling sought if the specific grounds
are not apparent.” State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991)
(emphasis added) (citation omitted).
Here, when the State requested a show-cause order on 22 May 2018, Defendant
asked the trial court to dismiss the case. The next day, the State asked the trial court
for an order for M.G.’s arrest, and Defendant again objected, stating: “We would
oppose the case being held open any longer. . . . Again, I will ask that it be dismissed.
I do not think that it would be appropriate to grant a mistrial. . . . So, I would ask
that the matter be dismissed and not held open.” Later that afternoon, the State
moved for a mistrial, and Defendant argued against granting a mistrial and cited two
cases in support of his argument that there is not “enough [evidence] for the Court to
make the finding that there is a manifest necessity for a mistrial in this case.”
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[.]” Id. (citation omitted). Moreover, Judge
Thornburg clearly understood these arguments and defense counsel’s request and
ruled on those very issues in granting a mistrial. Therefore, Defendant properly
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raised this issue before Judge Thornburg, which adequately preserved it for appeal.2
See N.C. Gen. Stat. § 15A-1446(a) (2017) (“No particular form is required in order to
preserve the right to assert the alleged error upon appeal if the motion or objection
clearly presented the alleged error to the trial court.”).
In any event, the Lachat Court recognized the objection requirement was
limited to situations where a defendant is given notice and opportunity to object
before a mistrial is declared but fails to do so. However, the trial court’s declaration
of mistrial in Lachat was “entered on the trial court’s own motion and without prior
notice or warning to the defendant.” 317 N.C. at 86, 343 S.E.2d at 879. The Lachat
Court determined that “require[ing the defendant] to go through the formality of
objecting after a mistrial had already been declared or lose her protection against
double jeopardy would be a triumph of form over substance[,] . . . particularly [where]
the defendant properly raised the issue of former jeopardy before the commencement
of the second trial by filing her written motion to dismiss the charge against her[.]”
Id. at 86-87, 343 S.E.2d at 879. Thus, according to Lachat, “it was the trial court’s
denial of [the motion to dismiss at the second trial] which preserved this issue for
appeal.” Id. at 87, 343 S.E.2d at 879. Just as in Lachat, Defendant here properly
raised his former jeopardy defense before the second trial by filing his Motion to
2 In his Motion to Dismiss Order, Judge Gavenus also expressly found “Defendant objected to
the motion on [23 May 2018]” and that Judge Thornburg “granted the State’s motion over Defendant’s
objection[.]”
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Dismiss on double jeopardy grounds, and it was the trial court’s denial of this Motion
that preserved this issue for appeal. See id.
II. Double Jeopardy
Having determined the issues surrounding Defendant’s appeal are properly
before us, we now turn to whether Judge Gavenus erred by denying Defendant’s
Motion to Dismiss. We acknowledge Judge Gavenus did not base his ruling on double
jeopardy principles, instead premising the decision on the principle that one superior
court judge may not overrule another. However, this line of reasoning runs contrary
to our Supreme Court’s edict in Odom—“where the order of mistrial has been
improperly entered over a defendant’s objection, defendant’s motion for dismissal at
a subsequent trial on the same charges must be granted.” 316 N.C. at 310, 341 S.E.2d
at 334 (citations omitted). Therefore, the question for this Court becomes whether
Defendant’s right to be free from double jeopardy precludes his second trial, thereby
requiring the trial court to grant his Motion to Dismiss.
“It is a fundamental principle of the common law, guaranteed by our Federal
and State Constitutions, that no person may be twice put in jeopardy of life or limb
for the same offense.” State v. Shuler, 293 N.C. 34, 42, 235 S.E.2d 226, 231 (1977)
(citations omitted); see U.S. Const. amend. V; N.C. Const. art. I, § 19. Under the
Double Jeopardy Clause of the Fifth Amendment, “once a defendant is placed in
jeopardy for an offense, and jeopardy terminates with respect to that offense, the
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defendant may [not] be tried . . . a second time for the same offense.” Sattazahn v.
Pennsylvania, 537 U.S. 101, 106, 154 L. Ed. 2d 588, 595 (2003) (citation omitted). “In
a criminal prosecution, jeopardy attaches when a jury is impaneled to try a defendant
on a valid bill of indictment.” Schalow, 251 N.C. App. at 343, 795 S.E.2d at 574
(citations omitted).
Ordinarily, “an order of mistrial in a criminal case will not support a plea of
former jeopardy.” State v. Battle, 279 N.C. 484, 486, 183 S.E.2d 641, 643 (1971)
(citation omitted). However, “where the order of mistrial has been improperly entered
over a defendant’s objection, defendant’s motion for dismissal at a subsequent trial
on the same charges must be granted.” Odom, 316 N.C. at 310, 341 S.E.2d at 334
(citations omitted). “There must be a showing of ‘manifest necessity’ for an order of
mistrial over defendant’s objection to be proper.” Id. (citation omitted); see State v.
Chriscoe, 87 N.C. App. 404, 407-08, 360 S.E.2d 812, 814 (1987) (analyzing a trial
court’s declaration of mistrial under N.C. Gen. Stat. § 15A-1063(1)—which allows a
trial court to declare a mistrial “if it is impossible for the trial to proceed in conformity
with the law”—according to our “manifest necessity” principles). “Although this
requirement does not describe a standard that can be applied mechanically, it does
establish that the prosecutor’s burden is a heavy one.” Chriscoe, 87 N.C. App. at 407,
360 S.E.2d at 814 (alteration, citation, and quotation marks omitted); see State v.
Cooley, 47 N.C. App. 376, 384, 268 S.E.2d 87, 92 (1980) (“[W]hen the prosecution seeks
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a mistrial, it has the burden of showing a high degree of necessity[.]” (citation
omitted)).
“Our courts have set forth two types of manifest necessity: physical necessity
and the necessity of doing justice.” Schalow, 251 N.C. App. at 348, 795 S.E.2d at 576
(citation omitted). “For example, physical necessity occurs in situations where a juror
suddenly takes ill in such a manner that wholly disqualifies him from proceeding
with the trial.” Id. (citation omitted). “Whereas the necessity of doing justice arises
from the duty of the [trial] court to guard the administration of justice from
fraudulent practices and includes the occurrence of some incident of a nature that
would render impossible a fair and impartial trial under the law.” Id. at 348, 795
S.E.2d at 576-77 (citation and quotation marks omitted); see Chriscoe, 87 N.C. App.
at 408, 360 S.E.2d at 814 (listing examples of manifest necessity under N.C. Gen.
Stat. § 15A-1063(1), such as “some incapacity of either a member of the court, a juror
or an attorney, or evidence of jury tampering” (citations omitted)). Further, as the
United States Supreme Court has recognized, when, as here, “the basis for the
mistrial is the unavailability of critical prosecution evidence,” we must apply “the
strictest scrutiny” to the question of manifest necessity. Arizona v. Washington, 434
U.S. 497, 508, 54 L. Ed. 2d 717, 730 (1978).
In Chriscoe, the defendant was accused of engaging in sexual relations with
his stepdaughter, who was then a minor, and his first trial ended in a mistrial after
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the trial court concluded manifest necessity existed. 87 N.C. App. at 405-07, 360
S.E.2d at 812-13. During the first trial, the State called the alleged victim to testify,
and “[a]fter giving her name and answering several general questions, she refused to
respond to further questioning by the prosecutor or the trial judge.” Id. at 405, 360
S.E.2d at 812. The State moved for a mistrial, which the defendant objected to, and
the trial court found that manifest necessity existed for granting a mistrial. Id. at
405-07, 360 S.E.2d at 812-13. At his second trial, the defendant filed a motion to
dismiss for former jeopardy, which the trial court denied. Id. at 407, 360 S.E.2d at
813. Thereafter, the defendant was convicted of second-degree sexual offense and
appealed to this Court. Id.
On appeal, the defendant argued the trial court erred by denying his motion to
dismiss for former jeopardy because there was no showing of manifest necessity. Our
Court agreed, reasoning:
We recognize that the prosecutor was placed in a difficult
position when his key witness suddenly refused to cooperate.
However, the record here is devoid of any evidence of misconduct.
There is no testimony from anyone to suggest that the witness
was influenced improperly. The Court’s power to declare a
mistrial must be exercised with caution and only after careful
consideration of all available evidence and only after making the
requisite findings of fact on the basis of evidence before the Court
at the time judicial inquiring is made. The record here contains
innuendo and suspicion only. Although the court followed the
mandate to make findings, there is no evidence on which those
findings could be based.
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Id. at 408, 360 S.E.2d at 814 (citation and quotation marks omitted). Therefore, this
Court reversed the trial court’s order denying the defendant’s motion to dismiss and
held: “When a mistrial is improperly ordered over defendant’s objection, a plea of
former jeopardy must be granted.” Id. (citation omitted).
As in Chriscoe, the State in the present case “was placed in a difficult position
when [its] key witness[es] suddenly refused to cooperate. However, the record here
is devoid of any evidence of misconduct.” Id. Specifically, the State conceded it did
not have sufficient evidence to assert that Defendant in any way caused the witnesses
not to appear. Therefore, without any evidence that Defendant instigated the
witnesses’ absence, no manifest necessity existed, and the trial court erred by denying
Defendant’s Motion to Dismiss. See id.
We also find support for this conclusion from the case of Downum v. United
States. 372 U.S. 734, 10 L. Ed. 2d 100 (1963). The Downum Court explained that the
focus of a double jeopardy inquiry is on the State’s knowledge at the time the jury is
impaneled. Specifically, the Court highlighted that when the State impanels a jury
“without first ascertaining” that its witnesses are present, the State “t[akes] a
chance.” Id. at 737, 10 L. Ed. 2d at 103 (citation and quotation marks omitted).
Under these circumstances, according to the Court, the State has “entered upon the
trial of the case without sufficient evidence to convict[,]” thereby assuming the risk
of jeopardy attaching and barring a later prosecution. Id. (citation and quotation
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marks omitted). The Court also noted that in analyzing these types of cases, “[w]e
resolve any doubt in favor of the liberty of the citizen, rather than exercise what would
be an unlimited, uncertain, and arbitrary judicial discretion.” Id. at 738, 10 L. Ed.
2d at 104 (citation and quotation marks omitted).
Applying Downum to the case sub judice, it is clear the State took a chance by
impaneling the jury “without first ascertaining” that its witnesses, M.G. and her two
children, were present and available to testify. The Record shows the State had
subpoenaed all three witnesses prior to the trial commencing on 22 May 2018. At
approximately 3:00 p.m. on that day, the jury was impaneled. However, after
releasing the jury for the day, the State explained M.G. “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.” The State also notified Judge Thornburg that it had contacted
the children’s school and sent a deputy to M.G.’s house but could not locate her. The
State’s explanation illustrates it knew that its key witnesses were not present, yet
the State proceeded to impanel the jury anyway, thereby assuming the risk of
Defendant’s later plea of double jeopardy. See id. at 737-38, 10 L. Ed. 2d at 103-04
(citations omitted); see also Washington, 434 U.S. at 508 n.24, 54 L. Ed. 2d at 730
n.24 (“If . . . a prosecutor proceeds to trial aware that key witnesses are not available
to give testimony and a mistrial is later granted for that reason, a second prosecution
is barred.” (citation omitted)).
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Thus, applying the “strictest scrutiny” as required by the United States
Supreme Court, we conclude no manifest necessity existed and the trial court erred
by denying Defendant’s Motion to Dismiss. See Washington, 434 U.S. at 508, 54 L.
Ed. 2d at 730; see also Chriscoe, 87 N.C. App. at 407, 360 S.E.2d at 814 (declaring
that in establishing manifest necessity, “the prosecutor’s burden is a heavy one”
(citation and quotation marks omitted)). Therefore, we must reverse the Motion to
Dismiss Order and remand to the trial court with instructions to grant Defendant’s
Motion to Dismiss.
Conclusion
For the foregoing reasons, we reverse the trial court’s Motion to Dismiss Order
and remand to the trial court with instructions to grant Defendant’s Motion to
Dismiss.
REVERSED AND REMANDED.
Judges DIETZ and BERGER concur.
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