State of North Carolina vs. Rigoberto Mateos Mendez (COA24-1060), is a case out of Wake County that illustrates the importance of being cognizant about when a defendant gives notice of appeal and carefully crafting the questions that are asked on cross-examination. On appeal, Mr. Mendez also raises an ineffective assistance of counsel (IAC) claim which was denied by the North Carolina Court of Appeals.
The issues in this case arise out of Mr. Mendez’s convictions on two counts of statutory sex offense with a child and one count of taking indecent liberties with a child. Mr. Mendez was found guilty by a jury in April of 2024, for these offenses which were committed against a child of a woman who he was in a relationship with. During the trial, the following exchange took place when Mr. Mendez’s attorney cross-examined a detective with the Cary Police Department.
ATTORNEY: Do you know what [the DSS investigator] did as part of the case?
Sorry.
WITNESS: So, she…do I know what she did specifically in this case?
ATTORNEY: Yes
WITNESS: I don’t. I don’t remember exactly what she did. I do know that she
did have home visits with the family and that ultimately at the
conclusion of her investigation, they substantiated abuse,
because I got that letter in the mail.
This testimony was allowed by the trial court without objection and on appeal, Mr. Mendez argued that allowing the testimony was plain error. His contention was that the testimony was inadmissible on two grounds: hearsay and improper vouching. The State argued that the invited error doctrine applied because Mr. Mendez elicited the testimony from the witness. The appellate Court agreed with the state.
The initial obstacle that Mr. Mendez faced in raising this argument is that it would be reviewed for plain error because it had not been properly preserved for appellate review. There was no timely motion or objection to the testimony of the witness during the trial so this issue was not preserved. A defendant has to make three showings in order to demonstrate plain error: first, a fundamental error must have occurred at trial; second, it must be shown that absent the error, the jury probably would have returned a different verdict; third, the error must be one that seriously effects the fairness, integrity, or public perception of judicial proceedings. Also, problematic for Mr. Mendez is that under State v. Gillard, 386 N.C. 797, 909 S.E.2d 226 (2024), if a defendant elicits evidence on cross-examination, then they are prohibited from raising the issue of plain error on appeal.
The appellate Court found that the question to the witness was framed such that it could have generated a wide range of responses. The actual response by the witness was one of those possibilities. Any error that occurred with respect to this issue was invited by Mr. Mendez and therefore the appellate Court concluded that he waived appellate review.
The issue of the timing of giving notice of appeal also came up in this case. What was interesting is that here Mr. Mendez gave oral notice of appeal in open court after the jury’s verdict but before the entry of judgment and sentencing. The appellate Court found that an oral notice of appeal given prior to the entry of judgment violates Rule 4 of the North Carolina Rules of Appellate Procedure. In State v. Jones, 296 N.C. App 512, 515, 909 S.E.2d 373, 376 (2024), it was expressed that “An oral notice of appeal given before entry of the final judgment violates Rule 4…” Mr. Mendez acknowledged that his oral notice of appeal was premature and thus defective. Therefore, he filed a petition for writ of certiorari for his issues to be heard by the appellate Court. Because Mr. Mendez was unable to demonstrate that merit or that an error was committed by the trial court or that circumstances of his case were extraordinary, his petition for writ of certiorari was denied and his appeal was dismissed.
This case illustrates the importance of carefully crafting the questions that are asked not only on direct examination but on cross examination as well. Timely and relevant objections during trial are also vital for the preservation of appellate review and in order to receive the most favorable standard of review should the appellate Court decide to examine the issue raised. Finally, becoming familiar with and strictly following Rule 4 of the North Carolina Rules of Appellate Procedure is of the utmost importance when the preservation of a defendant’s appellate arguments is the objective.
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