{ "id": 12175170, "name": "STATE OF NORTH CAROLINA v. ANTWON TERRELL ROGERS", "name_abbreviation": "State v. Rogers", "decision_date": "2014-09-02", "docket_number": "No. COA13-1430", "first_page": "201", "last_page": "206", "citations": [ { "type": "official", "cite": "236 N.C. App. 201" } ], "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": "599 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631478 ], "year": 2004, "pin_cites": [ { "page": "535", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/599/0515-01" ] }, { "cite": "738 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "opinion_index": 0 }, { "cite": "366 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4353225, 4350558, 4355851, 4347057, 4347795, 4360893, 4350878 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/nc/366/0568-06", "/nc/366/0568-01", "/nc/366/0568-03", "/nc/366/0568-07", "/nc/366/0568-05", "/nc/366/0568-02", "/nc/366/0568-04" ] }, { "cite": "722 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "parenthetical": "unpublished opinion" } ], "opinion_index": 0 }, { "cite": "586 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "160 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956874 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/160/0494-01" ] }, { "cite": "314 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "142", "parenthetical": "holding that cross-examination of a defendant which disclosed prior felonies, but did not disclose an indictment as an habitual felon, did not violate N.C. Gen. Stat. \u00a7 14-7.5" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527024 ], "year": 1984, "pin_cites": [ { "page": "659", "parenthetical": "holding that cross-examination of a defendant which disclosed prior felonies, but did not disclose an indictment as an habitual felon, did not violate N.C. Gen. Stat. \u00a7 14-7.5" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0655-01" ] }, { "cite": "161 L. Ed. 2d 285", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 0 }, { "cite": "544 U.S. 909", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5883840, 5894978, 5878466, 5901510, 5894599, 3537800, 5880967, 5898989, 5864815, 5911695, 5900303, 5911316, 5867098, 5893946 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/us/544/0909-08", "/us/544/0909-01", "/us/544/0909-04", "/us/544/0909-03", "/us/544/0909-12", "/us/544/0909-06", "/us/544/0909-13", "/us/544/0909-07", "/us/544/0909-10", "/us/544/0909-11", "/us/544/0909-09", "/us/544/0909-05", "/us/544/0909-14", "/us/544/0909-02" ] }, { "cite": "358 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985799 ], "year": 2004, "pin_cites": [ { "page": "581", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0551-01" ] }, { "cite": "223 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "338", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "289 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571208 ], "year": 1976, "pin_cites": [ { "page": "577", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0570-01" ] }, { "cite": "548 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135841, 135938, 135760, 135894, 135895 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0396-04", "/nc/353/0396-05", "/nc/353/0396-03", "/nc/353/0396-01", "/nc/353/0396-02" ] }, { "cite": "543 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "164" }, { "page": "164", "parenthetical": "citation omitted" }, { "page": "164-65", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443057 ], "weight": 2, "pin_cites": [ { "page": "704" }, { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0698-01" ] }, { "cite": "546 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135802, 135759, 135846, 135958 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0279-02", "/nc/353/0279-03", "/nc/353/0279-01", "/nc/353/0279-04" ] }, { "cite": "533 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "868-69" }, { "page": "868-69" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497226 ], "weight": 2, "pin_cites": [ { "page": "548" }, { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0544-01" ] }, { "cite": "453 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "864", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "339 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558634 ], "year": 1995, "pin_cites": [ { "page": "729", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0725-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2013, "pin_cites": [ { "parenthetical": "emphasis added" }, { "page": "704-05" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 657, "char_count": 12878, "ocr_confidence": 0.72, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.36759672088990514 }, "sha256": "63b1c8b93d57e2ad59e1158417c3a6ac163708528b269700d48ddbefc13c8a3c", "simhash": "1:886d76624c360c46", "word_count": 2096 }, "last_updated": "2023-07-14T22:41:07.458141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTWON TERRELL ROGERS" ], "opinions": [ { "text": "STEPHENS, Judge.\nOn 18 June 2012, Defendant Antwon Terrell Rogers was under surveillance by a team from the \u201ccareer criminal unit\u201d of the Raleigh Police Department (\u201cRPD\u201d), which was seeking to serve Defendant with an outstanding warrant and a grand jury indictment for having attained the status of an habitual felon. The surveillance team did not know where Defendant lived, but saw Defendant drive up to and then enter a house at 312 North King Charles Drive in Raleigh. A woman, later identified as Defendant\u2019s girlfriend, Felisha Sandifer, was a passenger in the car and entered the house with Defendant.\nAbout ten officers with the career criminal unit surrounded the house, and several officers knocked on the door. A woman answered the door and stated that she lived in the home. When the officers told her they were looking for Defendant, the woman called Defendant to come outside. The officers handcuffed and arrested Defendant without incident.\nAfter receiving consent from the homeowner, officers conducted a search which revealed a purse on the kitchen table. The purse contained mail addressed to Sandifer, marijuana, and a clip loaded with twelve .40 caliber bullets. When confronted by the officers, Sandifer initially claimed the marijuana and clip both belonged to her, but then admitted that the clip belonged to Defendant. At trial, Sandifer testified that Defendant put the clip in her purse when the police arrived at the house. Sandifer gave the officers permission to search her car, and a handgun was discovered under the passenger seat. The gun, which bore a stamp reading \u201cDetroit Police Department,\u201d matched the clip found in Sandifer\u2019s purse. Sandifer denied having a gun and stated that it must have belonged to Defendant. Officers later determined that the gun was stolen. While Defendant was being held in jail after his arrest, he made several phone calls to Sandifer and asked her to take responsibility for the gun.\nOn 23 July 2012, Defendant was indicted on charges of possession of a firearm by a felon and possession of a stolen firearm. On 11 December 2012, Defendant was indicted for having attained the status of an habitual felon. At the 22 April 2013 session of superior court in Wake County, a jury found Defendant not guilty of possession of a stolen firearm, but guilty of possession of a firearm by a convicted felon. In a separate proceeding, the jury found that Defendant was an habitual felon. The trial court imposed an active sentence of 93-124 months in prison, from which Defendant gave notice of appeal in open court.\nOn 28 March 2014, Defendant filed a motion for appropriate relief (\u201cMAR\u201d) in this Court contemporaneously with his appellate brief. The MAR was referred to this panel by order entered 8 April 2014. In his MAR, Defendant contends that his prior record level for sentencing was improperly calculated. Because we grant Defendant a new trial, we dismiss his MAR as moot.\nDiscussion\nOn appeal, Defendant argues that the trial court (1) erred in failing to instruct the jury to disregard evidence about his habitual felon indictment when such evidence was elicited during Defendant\u2019s trial on the underlying charges, (2) abused its discretion in denying his motion for a mistrial, (3) violated his Sixth Amendment rights by allowing Defendant\u2019s trial counsel to make the final decision regarding cross-examination of a witness, and (4) erred in making an inadequate inquiry regarding Defendant\u2019s request for substitute counsel. We conclude that Defendant is entitled to a new trial.\nDefendant argues that, during the trial on the principal charges against him, the trial court erred by failing to intervene and instruct the jury to disregard evidence of Defendant\u2019s habitual felon indictment. We agree.\nOur General Statutes provide that, when a defendant faces trial for having attained the status of an habitual felon, the \u201cindictment that the person is an habitual felon shall not be revealed to the jury unless the jury shall find that the defendant is guilty of the principal felony or other felony with which he is charged.\u201d N.C. Gen. Stat. \u00a7 14-7.5 (2013) (emphasis added). In other words, \u201c[t]he trial for the substantive felony is held first, and only after [a] defendant is convicted of the substantive felony is the habitual felon indictment revealed to and considered by the jury.\u201d State v. Cheek, 339 N.C. 725, 729, 453 S.E.2d 862, 864 (1995) (citation omitted). This procedural division between the trial on the underlying felonies and the trial on the habitual felon indictment\navoids possible prejudice to the defendant and confusion by the jury considering the principal felony with issues not pertinent to guilt or innocence of such offense, notably the existence of the prior convictions necessary for classification as an habitual felon, and further precludes the jury from contemplating what punishment might be imposed were [the] defendant convicted of the principal felony and subsequently adjudicated an habitual felon.\nState v. Wilson, 139 N.C. App. 544, 548, 533 S.E.2d 865, 868-69 (citation omitted), disc. review denied and appeal dismissed, 353 N.C. 279, 546 S.E.2d 394 (2000).\nThis Court has held that, where the State introduces evidence of a defendant\u2019s pending habitual felon indictment in violation of section 14-7.5, even after sustaining an objection by the defendant, \u201ca curative instruction [i]s necessary because, when evidence is rendered incompetent by statute, it is the duty of the judge ex mero motu to intervene and promptly instruct the jury that the evidence is incompetent.\u201d State v. Thompson, 141 N.C. App. 698, 704, 543 S.E.2d 160, 164 (citation and internal quotation marks omitted; emphasis in original), disc. review denied, 353 N.C. 396, 548 S.E.2d 157 (2001). Further, \u201cwhere evidence is rendered incompetent by statute, it is the duty of the trial judge to exclude it, and his failure to do so is reversible error[,]\u201d whether or not the defendant objects to the evidence. State v. McCall, 289 N.C. 570, 577, 223 S.E.2d 334, 338 (1976) (citation omitted).\nHere, during the direct examination of RPD Officer Derrick Jack, one of the officers involved in Defendant\u2019s surveillance and arrest, the following exchange took place:\n[OFFICER JACK]: I was attempting to go serve a pair of outstanding warrants on [Defendant]. He actually had one outstnading [sic] warrant and an outstanding grand jury indictment for a habitual.\n[DEFENSE COUNSEL]: Objection.\nTHE COURT: Sustained.\nWhile acknowledging that the quick objection of defense counsel and the proper sustaining of that objection by the trial court prevented the witness from uttering the word \u201cfelon,\u201d Defendant contends that \u201cthe jury could fill in the blank\u201d based on Officer Jack\u2019s earlier testimony about his job on the career criminal unit: \u201cWe\u2019re a unit that\u2019s [sic] our purpose is to seek out repeat offenders, repeat felon offenders. Generally they are subject eligible [sic] for the North Carolina habitual felon to kind of a third-strike type law.\u201d However, as Defendant also notes, defense counsel objected to and moved to strike this testimony. The trial court sustained the objection and instructed the jury, \u201cDisregard that last statement.\u201d \u201cThe law presumes that jurors follow the court\u2019s instructions.\u201d State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004) (citation omitted), cert. denied, sub nom. Queen v. North Carolina, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). However, if the jurors here disregarded only Officer Jack\u2019s \u201clast statement^]\u201d as directed by the trial court, they were still made aware that his work involved \u201crepeat offenders, repeat felon offenders.\u201d\nDespite the fact that Officer Jack\u2019s challenged testimony was interrupted and stopped before he added \u201cfelon\u201d after \u201chabitual,\u201d we believe Officer Jack\u2019s testimony that Defendant had \u201can outstanding grand jury indictment for a habitual\u201d did require striking and a curative instruction from the trial court. We agree with Defendant that the jury would have been able to \u201cfill in the blank\u201d and conclude that Defendant was facing \u201can outstanding grand jury indictment for [being an] habitual\u201d felon, criminal, offender, or some other synonymous term. Any of those words used to complete Officer Jack\u2019s description of the \u201coutstanding grand jury indictment\u201d would have subjected Defendant to the harms contemplated in Wilson, to wit, \u201cpossible prejudice to the defendant and confusion by the jury considering the principal felony with issues not pertinent to guilt or innocence of such offense[.]\u201d 139 N.C. App. at 548, 533 S.E.2d at 868-69.\nAs this Court noted in Thompson, section 14-7.5 bars revelation to the jury of the pending indictment that the defendant is an habitual felon. 141 N.C. App. at 704, 543 S.E.2d at 164 (citation omitted). Thus, in that case, we found no error because\n[n]o evidence of any indictment of [the] defendant as an habitual felon was introduced, nor [wa]s there any evidence in the record that [the] defendant was indicted or sentenced as an habitual felon. Instead, the State asked [the] defendant only whether he had been told that he qualified as an \u201chabitual offender.\u201d See, e.g., State v. Aldridge, 67 N.C. App. 655, 659, 314 S.E.2d 139, 142 (1984) (holding that cross-examination of a defendant which disclosed prior felonies, but did not disclose an indictment as an habitual felon, did not violate N.C. Gen. Stat. \u00a7 14-7.5).\nId. at 704-05, 543 S.E.2d at 164-65 (emphasis added); see also State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519 (2003) (holding that section 14-7.5 was not violated where the State cross-examined the defendant about a prior conviction for being an habitual felon, because the State\u2019s questions did not refer to a pending habitual felon indictment against the defendant, but instead simply served to elicit information on the defendant\u2019s criminal record). This reasoning led to the grant of a new trial for a defendant in a recent unpublished opinion from this Court in which the State elicited testimony from a defendant about his pending habitual felon indictment:\nQ. And before you left, you said, \u201cCarla, you don\u2019t have any felonies\u201d?\nA. No, I did not.\nQ. You told her this is going to be your fourth felony. You\u2019re a habitual felon?\nA. No, I did not.\nQ. Well, you know, in fact, that you are, correct?\nA. You indict me on habitual.\nQ. Is that a \u201cyes\u201d?\nA. \u201cYes.\u201d\nState v. Eaton, _ N.C. App. _, 722 S.E.2d 797 (2012) (unpublished opinion), available at 2012 N.C. App. LEXIS 372, at *11-12, disc. review denied, 366 N.C. 568, 738 S.E.2d 371 (2013). Just as here, in Eaton the entire phrase \u201cpending indictment for being an habitual felon\u201d was never used. However, the questions in context had the effect of revealing to the jury that the defendant indeed faced such an indictment, and as a result, we held that admission of such evidence was prejudicial error requiring a new trial. Id. We discern no meaningful distinction between the phrases \u201cYou indict me on habitual\u201d and \u201can outstanding grand jury indictment for a habitual\u201d and believe that both alert the jury to a defendant\u2019s pending habitual felon indictment.\nIn light of our case law and the intent behind section 14-7.5, we conclude that, in addition to sustaining the objection by defense counsel, the trial court was required to give a curative instruction regarding Officer Jack\u2019s reference to \u201can outstanding grand jury indictment for a habitual.\u201d The trial court\u2019s failure to give such an instruction was reversible error and Defendant is entitled to a new trial. Given our resolution of this issue, we need not address Defendant\u2019s remaining arguments or the issue raised in his MAR.\nNEW TRIAL.\nJudges CALABRIA and ELMORE concur.\n. Sandifer apparently went by the name \u201cFelisha Requer\u201d in June 2012, but used the last name Sandifer at trial.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John R. Green, Jr., for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTWON TERRELL ROGERS\nNo. COA13-1430\nFiled 2 September 2014\n1. Appeal and Error\u2014mootness\u2014motion for appropriate relief\u2014new trial granted\nA motion for appropriate relief (MAR) was dismissed as moot where defendant was granted a new trial.\n2. Sentencing\u2014habitual felon\u2014indictment revealed during substantive felony trial\u2014no curative instruction\u2014new trial\nThe trial court erred by not intervening ex mero motu to instruct the jury to disregard evidence of defendant\u2019s habitual felon indictment, in addition to sustaining the objection. The trial for the substantive felony is held first and the habitual felon indictment is revealed to the jury only after a conviction.\nAppeal by Defendant from judgment entered 26 April 2013 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 13 August 2014.\nAttorney General Roy Cooper, by Assistant Attorney General John R. Green, Jr., for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for Defendant." }, "file_name": "0201-01", "first_page_order": 209, "last_page_order": 214 }