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Vasquez-Ramirez v. State

Court of Appeals of Arkansas, Division III

December 11, 2019

JORGE VASQUEZ-RAMIREZ APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FCR-18-345] HONORABLE STEPHEN TABOR, JUDGE

          Pirani Law PA, by: Tony Pirani, for appellant.

          Leslie Rutledge, Att'y Gen., by: Christopher R. Warthen, Ass't Att'y Gen., for appellee.

          LARRY D. VAUGHT, JUDGE.

         Appellant Jorge Vasquez-Ramirez filed this interlocutory appeal from the order of the Sebastian County Circuit Court denying his motion to dismiss on the basis of double jeopardy. Appellant contends that during his jury trial and after jeopardy attached, the circuit court abused its discretion when it sua sponte declared a mistrial without his consent and absent evidence of an overruling necessity. We affirm.

         Appellant was charged with aggravated assault with a firearm and theft by receiving. His case was originally scheduled for a one-day jury trial on January 8, 2019, at 9:00 a.m. Because appellant and three witnesses, including the victim, Angel Bonilla, speak limited English, the circuit court requested and received confirmation on December 21, 2018, that interpreters would attend the trial. Thereafter, it was determined that a second day of trial might be required. On January 7, the circuit court received a confirmation that interpreters would attend trial on January 8 and 9.

         On Friday, January 4 at 4:34 p.m., appellant filed a motion to suppress. The court held a suppression hearing at 8:00 a.m. the morning of trial. The suppression hearing took longer than expected and was suspended while the parties selected the jury. Around 11:30 a.m., the court was informed that no interpreters were available for a second day of trial. The court advised the jury that the case would have to be finished in one day and that they may have to continue past 5:00 p.m. The jury broke for lunch while the parties resumed and completed the suppression hearing. The trial began around 1:00 p.m.

         The State's first witness was Bonilla. During Bonilla's cross-examination, he fainted. When he was revived, he vomited in the witness box. This necessitated a break in the proceedings to care for and clean up after Bonilla. Around this time, the parties requested recesses to negotiate a plea. The negotiations were unsuccessful.

         After Bonilla returned to cross-examination, the defense sought to impeach him with a cell-phone recording. When the court learned that the recording had not been translated or transcribed, the court stopped the proceedings, called the attorneys to the hall, and declared a mistrial. The court stated to the parties that it was just after 2:30 p.m. and that due to several unexpected and uncontrollable delays, it was apparent that the trial could not be finished in one day. The court explained that one delay was caused when Bonilla passed out and threw up in the witness box. The court explained that another delay occurred when the parties requested time to discuss plea negotiations. The court said a third delay was now required due to the disclosure by the defense of a recording to impeach Bonilla that required translation and transcription. In addition to these unexpected delays, the court reminded the parties that they started the case at 8:00 a.m. and that they took a seventeen-minute lunch, yet they did not begin the trial until 1:00 p.m.; the parties were still questioning the first of seven witnesses; three of the witnesses required an interpreter, which doubles their testimony time; and the court learned at 11:30 a.m. that no interpreters were available for a second day of trial. The circuit court then advised the parties that its docket was full the rest of the week and the next week and that it was on vacation the following week. In reaching the decision to declare a mistrial, the circuit court stated that "we all fought the good fight and did the best we [could]" and that "if I felt like I had any other choice or any chance in the world of finishing this case today, we would." However, "this day . . . has been unlike anything I have ever seen in thirty-seven years of law practice . . . it's just a series of rotten breaks." The court concluded, "I feel like I have no alternative other than to order-direct a mistrial of this case because it cannot be completed in the time allotted for it due to unforeseen circumstances that have arisen during the course of trial." Appellant objected to the mistrial, and the court overruled the objection.

         Thereafter, appellant filed a motion to dismiss the charges against him based on double jeopardy. He claimed that there was no overruling necessity to support the mistrial. The motion was denied by the circuit court in an order in which the court found that the trial schedule had to be adjusted to accommodate a hearing on a motion to suppress "filed by [appellant] at the eleventh hour";[1] voir dire by the defense was far greater in length and scope than is ordinary for a case of this type; the court was advised at 11:30 a.m. that interpreters would not be available the following day, and the court's docket would not allow the trial to be completed later in the week or in the next two weeks; an extensive recess was taken during trial to care for and clean up after the witness who fainted and vomited in the witness box; another extensive recess would have been required after the defense announced its intent to play a recording that had not been transcribed, translated from Spanish to English, or authenticated; multiple recesses were taken at the request of the parties to discuss settlement; and during trial, the court was advised that at least three of the seven witnesses scheduled to testify required an interpreter, which would double testimony time. The court further stated:

At the conclusion of the second recess it should have been obvious to anyone that the case could not be completed in the time allowed due to the number of witnesses remaining to testify and the fact three of them required an interpreter, the fact counsel advised he was early in his cross-examination of the first witness, the amount of time that was taken to seat the jury, and the amount of time that would be required to instruct the jury and complete closing argument.

         Finally, the court's order provides that it did not take the decision to declare a mistrial lightly and that "the series of events made it unavoidable in this case." This order is the subject of appellant's interlocutory appeal.[2]

         On appeal, appellant argues that the circuit court erred in denying his motion to dismiss.[3] We review a circuit court's denial of a motion to dismiss on double-jeopardy grounds de novo. Williams v. State, 371 Ark. 550, 553, 268 S.W.3d 868, 871 (2007).

         Both the Fifth Amendment to the United States Constitution and article 2, section 8 of the Arkansas Constitution require that no person be twice put in jeopardy of life or liberty for the same offense. Koster v. State, 374 Ark. 74, 81, 286 S.W.3d 152, 159 (2008). This prohibition against a second prosecution for the same offense is further discussed in Arkansas Code Annotated section 5-1-112(3) (Repl. 2013): "A former prosecution is an affirmative defense to a subsequent prosecution for the same offense . . . [if][t]he former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn . . . unless the termination was justified by overruling necessity." This means that once the jury is sworn, "jeopardy has attached . . . [and] the constitutional right against double jeopardy may be ...


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