NO. COA13-1430
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 12 CRS 5861, 11750, 213646
ANTWON TERRELL ROGERS
Appeal 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.
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.
STEPHENS, Judge.
On 18 June 2012, Defendant Antwon Terrell Rogers was under
surveillance by a team from the “career criminal unit” of the
Raleigh Police Department (“RPD”), 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
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King Charles Drive in Raleigh. A woman, later identified as
Defendant’s girlfriend, Felisha Sandifer,1 was a passenger in the
car and entered the house with Defendant.
About 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.
After 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 “Detroit Police Department,” matched the
1
Sandifer apparently went by the name “Felisha Requer” in June
2012, but used the last name Sandifer at trial.
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clip found in Sandifer’s 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.
On 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.
On 28 March 2014, Defendant filed a motion for appropriate
relief (“MAR”) 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.
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Because we grant Defendant a new trial, we dismiss his MAR as
moot.
Discussion
On 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’s 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’s trial counsel
to make the final decision regarding cross-examination of a
witness, and (4) erred in making an inadequate inquiry regarding
Defendant’s request for substitute counsel. We conclude that
Defendant is entitled to a new trial.
Defendant 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’s habitual felon indictment. We agree.
Our General Statutes provide that, when a defendant faces
trial for having attained the status of an habitual felon, the
“indictment that the person is an habitual felon shall not be
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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.” N.C. Gen. Stat. § 14-7.5 (2013) (emphasis
added). In other words, “[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.” 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
avoids 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.
State 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).
This Court has held that, where the State introduces
evidence of a defendant’s pending habitual felon indictment in
violation of section 14-7.5, even after sustaining an objection
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by the defendant, “a 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.” 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, “where 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[,]” 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).
Here, during the direct examination of RPD Officer Derrick
Jack, one of the officers involved in Defendant’s surveillance
and arrest, the following exchange took place:
[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.
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
While acknowledging that the quick objection of defense counsel
and the proper sustaining of that objection by the trial court
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prevented the witness from uttering the word “felon,” Defendant
contends that “the jury could fill in the blank” based on
Officer Jack’s earlier testimony about his job on the career
criminal unit: “We’re a unit that’s [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.” 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, “Disregard that last statement.” “The
law presumes that jurors follow the court’s instructions.”
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’s “last
statement[,]” as directed by the trial court, they were still
made aware that his work involved “repeat offenders, repeat
felon offenders.”
Despite the fact that Officer Jack’s challenged testimony
was interrupted and stopped before he added “felon” after
“habitual,” we believe Officer Jack’s testimony that Defendant
had “an outstanding grand jury indictment for a habitual” did
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require striking and a curative instruction from the trial
court. We agree with Defendant that the jury would have been
able to “fill in the blank” and conclude that Defendant was
facing “an outstanding grand jury indictment for [being an]
habitual” felon, criminal, offender, or some other synonymous
term. Any of those words used to complete Officer Jack’s
description of the “outstanding grand jury indictment” would
have subjected Defendant to the harms contemplated in Wilson, to
wit, “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[.]” 139 N.C. App. at 548,
533 S.E.2d at 868-69.
As 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]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
“habitual offender.” See, e.g., State v.
Aldridge, 67 N.C. App. 655, 659, 314 S.E.2d
139, 142 (1984) (holding that cross-
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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. § 14-7.5).
Id. 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’s questions did not refer
to a pending habitual felon indictment against the defendant,
but instead simply served to elicit information on the
defendant’s 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:
Q. And before you left, you said, “Carla,
you don’t have any felonies”?
A. No, I did not.
Q. You told her this is going to be your
fourth felony. You’re a habitual felon?
A. No, I did not.
Q. Well, you know, in fact, that you are,
correct?
A. You indict me on habitual.
Q. Is that a “yes”?
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A. “Yes.”
State 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 “pending
indictment for being an habitual felon” 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 “You indict me on
habitual” and “an outstanding grand jury indictment for a
habitual” and believe that both alert the jury to a defendant’s
pending habitual felon indictment.
In 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’s reference to “an
outstanding grand jury indictment for a habitual.” The trial
court’s failure to give such an instruction was reversible error
and Defendant is entitled to a new trial. Given our resolution
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of this issue, we need not address Defendant’s remaining
arguments or the issue raised in his MAR.
NEW TRIAL.
Judges CALABRIA and ELMORE concur.