                            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
                                  -2-
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.
                                        -3-
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.
                                             -4-
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
                                       -5-
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
                                             -6-
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
                                             -7-
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
                                               -8-
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-
                                       -9-
              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”?
                                                    -10-
                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
                                  -11-
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.
