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North Carolina v. Rogers5/15/1984
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 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 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.
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