State v. Rogers, 8310SC825

• Decision Date: 15 May 1984
• Docket Number: No. 8310SC825,8310SC825
• Citation: 68 N.C.App. 358,315 S.E.2d 492
• Parties: STATE of North Carolina v. David H. ROGERS.
• Court: North Carolina Court of Appeals

Page 492

315 S.E.2d 492

68 N.C.App. 358

STATE of North Carolina v. David H. ROGERS.

No. 8310SC825.

Court of Appeals of North Carolina.

May 15, 1984.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Charles H. Hobgood, Raleigh, for the State.

Wayne Eads, Raleigh, for defendant-appellant.

JOHNSON, Judge.

Defendant presents 15 questions for review broadly concerning the issues of (1) whether the indictment should have been quashed and the charges dismissed on the grounds that the prosecution against him was based on unconstitutional selective prosecution; (2) whether the superseding indictment should have been quashed and the charges dismissed on the ground of unconstitutional vindictive prosecution; (3) the sufficiency of the evidence to withstand defendant's motion to dismiss; and (4) whether the court abused its discretion in imposing a probationary judgment temporarily suspending defendant's license to practice law for his criminal offenses and also in entering a civil order imposing the identical discipline under the court's inherent authority to discipline attorneys.

The defendant was initially indicted for violating several criminal statutes prohibiting attorneys for engaging in certain conduct and for obstructing justice by intimidating or interfering with a State's witness. All of the alleged violations arose out of defendant's initial connection with and representation of Paula Ann Gately, who was charged with driving under the influence and with hit and run. We will address defendant's arguments in order of convenience and begin with the factual background leading up to the decision to prosecute defendant.

I

The evidence at defendant's trial tended to show the following: On 7 July 1982, between 2:00 and 2:30 a.m., the defendant, a licensed attorney, was in the Wake County Magistrate's Office. The magistrate on duty that night was Jerry Ray. Magistrate Ray testified that he had seen Attorney Rogers at the back of the courthouse late at night on other occasions.

Earlier that same night, Paula Ann Gately had gone to Darryl's Restaurant on Glenwood Avenue in Raleigh. There she drank a number of alcoholic beverages and, according to the arresting officer, became "very intoxicated." Ms. Gately remembered leaving Darryl's and pulling out onto Glenwood Avenue, but little that occurred thereafter.

At the same time that Gately pulled out onto Glenwood Avenue, a man named Bobby McMillan was driving on Glenwood Avenue, near Darryl's. Gately drove through a flashing red light, pulled out in front of McMillan and the two cars collided. Gately drove away with McMillan driving after her. Eventually, he caught up to talk to her, but she drove off again. McMillan reported the accident to the Raleigh Police Department and Officer Mizelle arrived to investigate. Eventually, Officer Mizelle located Gately's parked car, found Gately herself, placed her under arrest and took her to the Magistrate's Office.

Magistrate Ray charged Gately with driving under the influence and with hit and run and placed her under a $100 secured bond. Rogers, who had been listening, then discussed something with Gately outside the office, and returned to notify Magistrate Ray that he was going to post Gately's bond. Magistrate Ray informed him that "the statute, [G.S.] 85C-22 ¹ states that attorneys are not allowed to sign bail bonds for defendants." Rogers said that he had to go and get the hundred dollars and, after a second warning from Magistrate Ray, said that he was "loaning" Gately the money. When Rogers returned, Magistrate Ray again informed him of the statute. In the meantime, the magistrate had taken out the General Statute book so that Rogers could read it if he wanted to. Without doing so, Rogers told Magistrate Ray that he was "aware" of the statute and again informed Ray that he was going to post the bond, that he was not representing Gately in court and was just loaning her the money. Rogers then paid the $100 and signed the bond as surety. He was not related to Gately.

Rogers and Gately left the office together and he drove her home. In his car, Rogers gave Gately his business card and she gave him her court papers; each considered Rogers to be her attorney. The next day, Gately telephoned McMillan. She offered to pay him $150 for his damages. McMillan informed Gately that her leaving the accident had been dangerous because he'd been carrying a gun that night. McMillan had left it in the holster and did not point it at her. According to McMillan, Gately did not remember the events of that evening. Gately then sent McMillan a check, but stopped payment upon Rogers' advice.

Prior to the trial of Gately's cases, Rogers requested that he be taken off Gately's bond, telling the Clerk's Administrative Assistant that he had done it as "a friend" and was not going to represent Gately. On 19 August 1982, Gately's cases were scheduled for trial in Wake County District Court. Gately testified that she went to court with Rogers because he was her attorney. McMillan had been subpoenaed as a witness for the State, but was late in arriving. Officer Mizelle was present and told Rogers that he hadn't seen McMillan. Rogers said "... if he doesn't show up, we'll have the case dismissed ..."

When Assistant District Attorney Mary Dombalis called Gately's cases, Rogers stood up and said he represented Gately and that the plea was not guilty. The Assistant District Attorney testified that a few minutes later Rogers said to her that her witness "was not there and if the witness did not show up I'd have to dismiss the case." Eventually, McMillan arrived and when he answered to the call of his name, Rogers muttered "shit" and motioned for Gately to meet him in the attorneys' conference room.

Rogers also asked Officer Mizelle to come into the conference room. Present at this meeting were Rogers, McMillan, Gately and Officer Mizelle, but not the Assistant District Attorney. Rogers discussed the accident with McMillan. He told McMillan that Gately was "willing to take care of" his damages and then asked McMillan whether he'd been carrying a gun that night. When McMillan told him, "yeah," Rogers said something to the effect that "we could bring charges on you for having that gun." Further, that McMillan was the only one actually to see Gately driving drunk and that he would have a good chance of getting Gately's cases thrown out if McMillan was not a witness. McMillan testified that he "got the understanding" that if he did not press charges and did not appear as a witness his damages would be paid. Also, that if McMillan brought Rogers his bill, Rogers and Gately would not bring any charges against McMillan about the gun. Rogers indicated that it was his opinion that the case would probably be dropped, and that McMillan would not be needed. They shook hands and Rogers told McMillan, "you can hit the door."

On the way out, McMillan had second thoughts and informed the witness coordinator that Rogers had told him to leave. McMillan was told to return to the courtroom. Thereafter, the Assistant District Attorney was informed of the conference and of the agreement between McMillan and Rogers. Rogers had not spoken to her about Gately's cases since the calendar call, although he had the opportunity to do so. She, therefore, requested the court that Gately's cases be continued. Rogers stood up and insisted that he was ready for trial. When the judge asked Rogers if he had dismissed the State's witness, Rogers initially attempted to discuss the merits of the case, but eventually admitted that he had told the witness to leave.

That day or the next, Rogers contacted Gately and advised her to take out a warrant against McMillan for assault by pointing a gun. Although Gately had told Rogers that she did not remember the incident, she agreed and Rogers accompanied her to the Magistrate's Office. A warrant was taken out against McMillan, with David Rogers listed on the warrant as a witness. McMillan was then charged, taken to the police station, fingerprinted and photographed. A week later, Gately attempted to have the charges dropped because she thought it was vindictive and because she did not actually remember the event occurring.

Thereafter, Attorney Rogers was charged with illegally becoming a surety, soliciting business and obstruction of justice. After the State rested its case, defendant moved to dismiss each count and his motions were denied. The defendant put on evidence and testified on his own behalf. Essentially, defendant pled ignorance of the law at his trial. Defendant testified that he was working late on a case on the night in question and had gone over to the Magistrate's Office in the early morning hours to clarify something. He testified further that when he attempted to act as surety on Gately's bail bond, the magistrate told him: "don't you know that an attorney cannot go bond for his client?," but that Gately was not his client at that point and he wanted to do it as a friend, because he felt sorry for her. His practice was mostly civil, and he was not aware of the statute referred to by the magistrate prior to that time.

As to the events in the conference room on the morning of Gately's trial, Rogers testified that at no time was the payment of McMillan's expenses and damages conditioned on his not prosecuting the hit and run charge. Rather, defendant believed that the conversation was for the purpose of reaching a plea bargain and settlement of the entire situation, including both the civil and criminal aspects of the Gately-McMillan incidents. Defendant testified further that in dismissing the State's witness, he had exercised "bad judgment."

After rebuttal evidence for the State, defendant again moved for dismissal of all four counts. These motions were denied and the jury found defendant guilty of standing bond for a person not a member of the defendant's immediate family and attempting to interfere with...