{ "id": 4364539, "name": "STATE OF NORTH CAROLINA v. KELLY SHAWN HOGAN", "name_abbreviation": "State v. Hogan", "decision_date": "2012-01-17", "docket_number": "No. COA11-580", "first_page": "305", "last_page": "308", "citations": [ { "type": "official", "cite": "218 N.C. App. 305" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "669 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642342 ], "year": 2008, "pin_cites": [ { "page": "871" } ], "opinion_index": 0, "case_paths": [ "/se2d/669/0869-01" ] }, { "cite": "613 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633070 ], "weight": 10, "year": 2005, "pin_cites": [ { "page": "708" }, { "page": "707" }, { "page": "708" }, { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0705-01" ] }, { "cite": "653 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639861 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/653/0148-01" ] }, { "cite": "646 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638765 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "399" }, { "page": "399", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0398-01" ] }, { "cite": "194 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4163610 ], "year": 2008, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0314-01" ] }, { "cite": "171 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8435503 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0136-01" ] }, { "cite": "361 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3743616, 3738823, 3736716, 3747564, 3746580, 3747157, 3746068, 3741847, 3747001 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0699-02", "/nc/361/0699-03", "/nc/361/0699-07", "/nc/361/0699-05", "/nc/361/0699-09", "/nc/361/0699-01", "/nc/361/0699-04", "/nc/361/0699-06", "/nc/361/0699-08" ] }, { "cite": "184 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8186794 ], "year": 2007, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0536-01" ] }, { "cite": "520 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "588", "parenthetical": "quoting 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 170, at 559 (5th ed. 1998)" }, { "page": "590", "parenthetical": "\"We have reviewed the additional assignments of error brought forth by Defendant but, because they are unlikely to recur at a new trial, we do not address them.\"" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241331 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "452", "parenthetical": "quoting 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 170, at 559 (5th ed. 1998)" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0449-01" ] } ], "analysis": { "cardinality": 502, "char_count": 8570, "ocr_confidence": 0.753, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14890887461006413 }, "sha256": "ba865c1fab2f7a6b5a56a18d4455bc73206774945292b56477c3b44f22cc8365", "simhash": "1:898064e6e1b684d6", "word_count": 1397 }, "last_updated": "2023-07-14T20:21:59.538017+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KELLY SHAWN HOGAN" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nIn 2001, defendant Kelly Shawn Hogan was charged in an indictment with robbery with a dangerous weapon. However, the charge was dismissed with leave on 16 January 2003, the box on the dismissal form indicating \u201cdefendant failed to appear for a criminal proceeding at which the defendant\u2019s attendance was required and the prosecutor believes that the defendant cannot readily be found.\u201d Later, in July 2010, the charge was reinstated for trial and, on 28 October 2010, the trial court entered judgment upon a jury verdict finding defendant guilty of the charge. Defendant gave oral notice of appeal. For the following reasons, we hold defendant is entitled to a new trial.\nThe following evidence was presented at defendant\u2019s trial. On 30 June 2000, then-Officer Renea White of the Lumberton Police Department responded to a call about an incident in the Freedom Drive-area of Robeson County. When Officer White arrived at the scene, she got a statement from the victim, Robert McQueen.\nAt defendant\u2019s trial, McQueen testified that he had been at a poker game that night and described the events as follows: during one round, McQueen bet, two other players and defendant folded, and McQueen announced, \u201c[Y]ou all let me win with a pair of deuces,\u201d and \u201cgrabbed [his] money.\u201d Defendant responded, \u201cI didn\u2019t fold, I ain\u2019t fold.\u201d The owner of the house told defendant he had folded. McQueen testified that, although he offered defendant $20 to get back in the game, he and defendant had \u201clittle words\u201d and then defendant \u201cjust got up and left.\u201d McQueen left the house a couple of hours after defendant had gone. As McQueen walked outside, he heard the double click of a shotgun. Then he heard defendant say, \u201cDon\u2019t move, don\u2019t move.\u201d Defendant ran in front of McQueen, faced him, and told him to take off his shoes and pants. Defendant went through the pockets of McQueen\u2019s pants and took money and then made McQueen lie on his stomach. McQueen testified that defendant then said, \u201cI should kill you now[,] you b \u2014 h-ass,\u201d and then \u201cpopped\u201d him in the back of his head with the gun and shot at the ground. McQueen testified that defendant took his shoes and about $650 in cash from him that night. On 16 August 2000, then-Officer Johnny Coleman with the Lumberton Police Department stopped a vehicle carrying defendant and took defendant into custody.\nOn appeal, defendant contends the trial court erred by denying him the right to the final argument to the jury based on its ruling that he had \u201cintroduced\u201d evidence within the meaning of Rule 10 of the General Rules of Practice for the Superior and District Courts (Rule 10) during his cross-examination of McQueen by reading aloud from McQueen\u2019s 30 June 2000 statement to Officer White.\nRule 10 provides that, \u201c[i]n all cases, civil or criminal, if no evidence is introduced by the defendant, the right to open and close the argument to the jury shall belong to him.\u201d N.C. Super, and Dist. Ct. R. 10. The general rule is that \u201cany testimony elicited during cross-examination is \u2018considered as coming from the party calling the witness, even though its only relevance is its tendency to support the cross-examiner\u2019s case.\u2019 \u201d State v. Shuler, 135 N.C. App. 449, 452, 520 S.E.2d 585, 588 (1999) (quoting 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 170, at 559 (5th ed. 1998)). The general rule \u201calso provides there is no right to offer evidence during cross-examination.\u201d Id. However, evidence is nevertheless \u201c \u2018introduced,\u2019 within the meaning of Rule 10, when the cross-examiner either formally offers the material into evidence, or when the cross-examiner presents new matter to the jury that is not relevant to the case.\u201d State v. Hennis, 184 N.C. App. 536, 537, 646 S.E.2d 398, 399, supersedeas and disc. review denied, 361 N.C. 699, 653 S.E.2d 148 (2007). Evidence is \u201coffered\u201d when \u201ca party has offered [it] as substantive evidence or so that the jury may examine it and determine whether it illustrates, corroborates, or impeaches the testimony of the witness.\u201d Id. at 538, 646 S.E.2d at 399 (internal quotation marks omitted).\nIn State v. Wells, 171 N.C. App. 136, 613 S.E.2d 705 (2005), this Court held that, where the defendant \u201cquestioned [the witness] about statements directly related to the witness\u2019[s] own testimony on direct examination,\u201d the defendant had not introduced any evidence within the meaning of Rule 10. Id. at 140, 613 S.E.2d at 708. In Wells, during its case-in-chief, the State introduced as substantive evidence a witness\u2019s statement to detectives. Id. at 139, 613 S.E.2d at 707. In it, the witness said the defendant \u201cstood in the middle of the street and fired at the victim[s] ... as they fled, then casually drove away.\u201d Id. On cross-examination, the defendant asked the witness about another statement he had given to detectives one day before the statement introduced by the State. Id. In this statement, the witness said the defendant was \u201crunning away from [a] recording studio as he fired at the victims.\u201d Id. The defendant\u2019s counsel \u201cread the entire statement, line by line, asking [the witness] if he agreed with each sentence.\u201d Id. However, the defendant\u2019s counsel never \u201cformally introduced the statement\u201d and the defendant presented no evidence. Id.\nIn this case, during his cross-examination of McQueen, defendant\u2019s counsel read aloud several portions of McQueen\u2019s 30 June 2000 statement in what appears to have been an attempt to point out inconsistencies between McQueen\u2019s trial testimony and his prior statement. Specifically, defendant\u2019s counsel asked McQueen twice whether he had told Officer White \u201ceverything that happened\u201d when he provided his 30 June 2000 statement. After McQueen testified that he continued playing cards a \u201ccouple of hours\u201d after defendant left, referring to McQueen\u2019s statement, defendant\u2019s counsel asked whether McQueen had told Officer White that defendant left the card game and then returned a \u201cshort time later.\u201d McQueen said yes, and then added that \u201ca couple of hours is a short time, yes.\u201d Defendant\u2019s counsel pointed out that Officer White did not write down that defendant had fired the shotgun into the ground, which defendant had testified to on direct examination. Defendant\u2019s counsel also asked McQueen if he could remember what time Officer White arrived at the scene. McQueen testified he could not. In sum, our review of the transcript reveals that statements read and referenced by defendant\u2019s counsel were \u201cdirectly related to [McQueen\u2019s] own testimony on direct examination.\u201d See Wells, 171 N.C. App. at 140, 613 S.E.2d at 708. Furthermore, as in Wells, defendant\u2019s counsel never \u201cformally introduced the statement\u201d into evidence. Id. at 139, 613 S.E.2d at 707. Accordingly, we must hold that defendant never \u201cintroduced\u201d evidence within the meaning of Rule 10.\nImproperly depriving a defendant the right to open and close argument to the jury, a right \u201cdeemed to .be critically important,\u201d \u201centitles . . . defendant to a new trial.\u201d See State v. English, 194 N.C. App. 314, 317, 669 S.E.2d 869, 871 (2008).\nIn view of our holding, we do not reach defendant\u2019s second issue on appeal related to statements by the trial judge during sentencing regarding defendant\u2019s decision to plead not guilty. See Shuler, 135 N.C. App. at 455, 520 S.E.2d at 590 (\u201cWe have reviewed the additional assignments of error brought forth by Defendant but, because they are unlikely to recur at a new trial, we do not address them.\u201d).\nNew trial.\nJudges ELMORE and STEPHENS concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by J. Aldean Webster III, Assistant Attorney General, for the State.", "J. Clark Fischer, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KELLY SHAWN HOGAN\nNo. COA11-580\n(Filed 17 January 2012)\nCriminal Law \u2014 right to open and close argument \u2014 reading from witness\u2019s statement on cross-examination \u2014 not introduction of evidence\nDefendant received a new trial where the trial judge deprived him of the right to open and close argument to the jury based on a ruling that defendant introduced evidence during his cross-examination of the victim. Defense counsel read aloud several portions of the victim\u2019s statement in an apparent attempt to point out inconsistencies with his trial testimony, but those statements were directly related to the direct examination and defendant did not formally introduce the statements into evidence.\nAppeal by defendant from judgment entered 28 October 2010 by Judge Gary L. Locklear in Robeson County Superior Court. Heard in the Court of Appeals 14 November 2011.\nRoy Cooper, Attorney General, by J. Aldean Webster III, Assistant Attorney General, for the State.\nJ. Clark Fischer, for defendant-appellant." }, "file_name": "0305-01", "first_page_order": 315, "last_page_order": 318 }