Roquan Rogers v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and White
UNPUBLISHED
Argued at Norfolk, Virginia
ROQUAN ROGERS
MEMORANDUM OPINION* BY
v. Record No. 1242-21-1 JUDGE MARY GRACE O’BRIEN
DECEMBER 13, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
W. Revell Lewis, III, Judge
Curtis T. Brown (Law Office of Curtis T. Brown, on brief), for
appellant.
Victoria Johnson, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
A jury convicted Roquan Rogers (appellant) of conspiracy to commit capital murder for
hire, conspiracy to commit capital murder by a prisoner, and conspiracy to obstruct justice.1
Appellant asserts that the court erred by denying his motion for a mistrial after a law enforcement
officer testified about his pending charge for conspiracy to distribute cocaine in an unrelated case.
For the following reasons, we affirm the court’s judgment.
BACKGROUND
On appeal, we state the facts “in the light most favorable to the Commonwealth, the
prevailing party at trial.” Poole v. Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The jury could not reach a unanimous verdict on one count of obstruction of justice, two
counts of malicious wounding, one count of attempted first-degree murder, one count of
attempted first-degree murder for hire, one count of attempted first-degree murder by a prisoner,
and three counts of use of a firearm in a felony. The court declared a mistrial with respect to
those charges.
v. Commonwealth, 295 Va. 469, 472 (2018)). In so doing, we discard any of the appellant’s
conflicting evidence and regard as true all credible evidence favorable to the Commonwealth and
all inferences that may reasonably be drawn from that evidence. Gerald, 295 Va. at 473.
Nathanial Johnson, the victim, worked as a confidential informant for the Eastern Shore
Drug Task Force. As an informant, Johnson participated in controlled drug purchases, including
purchases from appellant’s brother, Akeem Rogers, and Evron Strand. Johnson testified at
Akeem Rogers’s trial and revealed his status as an informant. Johnson was also prepared to
testify against Evron Strand.
On October 31, 2017, Johnson and his girlfriend were shot while walking to Johnson’s
grandmother’s house. At trial, they both identified appellant as the shooter. Johnson testified
that he recognized appellant from his hairstyle, his “distinctive” “mouth structure,” his “[b]ody
structure,” and how he walked. Johnson’s girlfriend testified that she had known appellant for “a
couple of years” before the shooting.
The evidence showed that Evron Strand, who was incarcerated, used his girlfriend,
Cynthia Harmon, to arrange “to have [Johnson] killed” for “snitch[ing]” on him. Strand gave
Harmon appellant’s phone number, and she contacted him at Strand’s behest to arrange a
meeting. Harmon testified that Strand was offering “stacks,” or thousands of dollars, in
exchange for Johnson’s murder. The day before the shooting, Harmon connected Strand to
appellant via a three-way call. During the call, appellant assured Strand, “I can get that dude
definitely for you asap.” Strand told appellant he had three others “on standby” and needed “it[]
done” by the next day. Appellant contacted Harmon after the shooting and sought payment.
Agent Steve Lewis of the Eastern Shore Drug Task Force testified at appellant’s trial.
Agent Lewis testified that he was familiar with appellant through “many professional
-2-
encounters.” The prosecutor asked Agent Lewis about his investigation into appellant’s brother,
Akeem Rogers. The following testimony ensued:
Q: Did you participate in any investigations concerning Akeem
Rogers?
A: Yes, sir. Over the years—I’ve been on the task force for twelve
years.
Q: Without going into Mr. Rogers’ –
A: On several instances I’ve dealt with Akeem Rogers. Yes.
Q: Most recently being?
A: Most recently is two drug purchases in 2017 which led to a
search warrant at his residence . . .
Q: And prior to—had that gone to trial?
A: One of the undercover buys has gone to trial. Akeem Rogers
was found guilty. There is another one that’s still pending
sentencing; and the results of the search warrant just came back
with DNA testing and fingerprints; and [appellant], Akeem, and
the other brother, Rovante, have all been charged with conspiracy
to commit—excuse me—conspiracy to distribute cocaine.
Appellant immediately moved for a mistrial, arguing that the prosecutor “led” Agent
Lewis to testify about appellant’s pending charge and that Agent Lewis’s remark was too
prejudicial to be cured by an instruction. The court took the motion under advisement and
deferred ruling until the close of the Commonwealth’s case. The court directed the court reporter
to read Agent Lewis’s testimony back to the jury, struck the testimony from the record, and
instructed the jury not to consider it.
At the close of the Commonwealth’s case, the court denied appellant’s motion for a
mistrial, reasoning that Agent Lewis’s isolated remark, when viewed against the substantial
evidence of appellant’s guilt, was not so prejudicial as to influence the verdict.
-3-
The jury convicted appellant of conspiracy to commit capital murder for hire, conspiracy to
commit capital murder by a prisoner, and conspiracy to obstruct justice. This appeal followed.
ANALYSIS
This Court reviews the trial court’s denial of a motion for a mistrial for an abuse of
discretion. Fowlkes v. Commonwealth, 52 Va. App. 241, 248, 255 (2008). We will not reverse
absent “a manifest probability as a matter of law that the improper evidence prejudiced the
accused.” Id. at 248 (quoting Mills v. Commonwealth, 24 Va. App. 415, 420 (1997)).
Additionally, when “the trial court has issued a cautionary instruction to the jury to disregard the
evidence, we will not reverse . . . unless we find that ‘such illegal evidence was so impressive
that it probably remained on the minds of the jury and influenced their verdict.’” Id. (quoting
Bennett v. Commonwealth, 29 Va. App. 261, 274 (1999)). Juries “are presumed to follow” a
court’s cautionary instructions. Bennett, 29 Va. App. at 274.
“Whether a manifest probability exists that . . . improper evidence prejudiced the accused
despite [a court’s] cautionary instruction depends upon the nature of the incompetent evidence
when considered in relation to the nature of the charges, the other evidence in the case, and [the]
manner in which the prejudicial evidence was presented.” Fowlkes, 52 Va. App. at 249
(alterations in original) (quoting Mills, 24 Va. App. at 420-21). “The number of references to an
error is also relevant to our consideration of . . . prejudice.” Bennett, 29 Va. App. at 275.
Appellant asserts that the court erred by denying his motion for a mistrial because Agent
Lewis’s testimony about appellant’s pending drug charge “stayed on the minds of the jury and
influenced [its] verdict,” and could not be cured with a cautionary instruction. He relies on Lewis
v. Commonwealth, 269 Va. 209 (2005), and Robinson v. Commonwealth, 13 Va. App. 574 (1992);
however, these cases are distinguishable from the case at bar.
-4-
In Lewis and Robinson, the trial court erred by denying a mistrial because the prosecutor
repeatedly asked improper questions. Lewis, 269 Va. at 215 (“Lewis’ right to a fair trial was
prejudiced by the prosecutor’s repeated and unfounded implication that Lewis was engaged in
illegal activity for which he was not on trial.”); Robinson, 13 Va. App. at 578-79 (“These
questions solicited irrelevant and highly prejudicial matters. . . . [T]he only conceivable purpose
of the questions by the Commonwealth’s attorney was to inflame the passions of the jury against
the accused and his witness.”). Here, however, Agent Lewis’s testimony about appellant’s
pending charges was an “isolated incident.” Robinson, 13 Va. App. at 579. The jury was
promptly instructed to disregard the testimony, and appellant’s pending charge was not referred
to again. Moreover, “[n]othing in the record suggests that the prosecutor anticipated the
response or encouraged the witness to interject this improper comment.” Id. at 577. In fact, the
prosecutor’s questions attempted to solicit testimony about Agent Lewis’s investigation into
appellant’s brother, not appellant.
Not only are the cases cited by appellant distinguishable, but substantial evidence
supports appellant’s conviction. Two eyewitnesses identified Johnson as the shooter, appellant
agreed to kill Johnson on a recorded jail call, and text messages showed that appellant sought
payment for the shooting. As the court found, the Commonwealth’s evidence—presented over
the course of a multi-day trial—weighed against Agent Lewis’s short remark, “militates against a
finding of prejudice.” Bennett, 29 Va. App. at 276.
Thus, the court did not abuse its discretion by refusing to grant a mistrial. The court
correctly concluded that, in the context of the Commonwealth’s entire case, Agent Lewis’s
isolated statement about appellant’s pending drug charge was not so prejudicial that it could not
be cured by an instruction to the jury.
-5-
CONCLUSION
For the reasons stated, the court’s judgment is affirmed.
Affirmed.
-6-