An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA12-1109

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Edgecombe County

No. 10 CRS 52611

No. 10 CRS 52613

ROGER BENJOUR ARMSTRONG and 

DOMINIQUE ANTWON RANDOLPH

Appeal by defendants from judgments entered 15 February 

2012 by Judge Clifton W. Everett, Jr. in Edgecombe County 

Superior Court. Heard in the Court of Appeals 14 March 2013.

Roy Cooper, Attorney General, by William P. Hart, Jr., 

Assistant Attorney General, for the State.

Staples Hughes, Appellate Defender, by Benjamin DowlingSendor, Assistant Appellate Defender, for defendantappellant Armstrong.

W. Michael Spivey for defendant-appellant Randolph.

STEELMAN, Judge.

Defendants failed to show plain error with regard to the 

trial court’s jury instructions. The trial court’s questions to 

witnesses during the presentation of evidence did not constitute 

an improper expression of opinion concerning the guilt of 
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defendants. Where the record on appeal was insufficient for us 

to determine whether ineffective assistance of counsel had 

occurred, defendant Randolph’s ineffective assistance of counsel

claim is dismissed without prejudice.

I. Factual and Procedural Background

On 22 June 2010, two men broke into the residence of 

Haywood Gaines and Nicole Sheffield on Planter Street in Rocky 

Mount. Gaines and Sheffield identified the defendants in court 

as being Roger Armstrong and Dominique Randolph (defendants). 

Upon breaking into the residence, defendants assaulted Gaines 

and Sheffield, and robbed them of $200 and an ATM card. 

Randolph touched Sheffield between her legs, and threatened to 

rape her. Photographs from an automatic teller machine showed 

defendant Armstrong attempting to use Gaines’ ATM card about 45 

minutes after the robbery.

At trial, Armstrong’s former girlfriend, Kenya Tillery, 

testified that on the date of the robbery, Armstrong was with 

her in a motel room, but left. When he returned, he told her 

that he had gone to Planter Street, and had hit two people with 

a gun. He also stated that it was Randolph who had driven him 

to Planter Street and then back to the motel.
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Armstrong was indicted for one count of robbery with a 

dangerous weapon, one count of first-degree burglary, one count 

of financial transaction card theft, and one count of unlawfully 

obtaining a credit card. He was also indicted for two counts of 

assault with a deadly weapon inflicting serious injury, one for 

Gaines and one for Sheffield. Randolph was indicted for one 

count of robbery with a dangerous weapon, one count of firstdegree burglary, and the sexual battery of Sheffield.

On 13 February 2012, Armstrong pled guilty to one count of 

unlawfully obtaining a credit card. On 15 February 2012, a jury 

found Armstrong guilty of robbery with a dangerous weapon, 

first-degree burglary, financial transaction card theft, assault 

with a deadly weapon inflicting serious injury (as to Gaines), 

and assault with a deadly weapon (as to Sheffield). The jury 

found Randolph guilty of robbery with a dangerous weapon and 

first-degree burglary. Randolph was found not guilty of sexual 

battery. As to Armstrong, the trial court arrested judgment on 

the conviction for financial transaction card theft and 

unlawfully obtaining a credit card. The trial court then 

imposed two consecutive active sentences upon Armstrong of 73-97 

months for robbery with a dangerous weapon and first-degree 

burglary. Armstrong’s two assault convictions were 
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consolidated, and a third consecutive active sentence of 23-37 

months was imposed. The trial court imposed two consecutive 

active sentences upon Randolph of 73-97 months for robbery with 

a dangerous weapon and first-degree burglary.

Defendants appeal.

II. Separate Determinations of Guilt

In their first argument, defendants contend that the trial 

court committed plain error in failing to instruct the jurors to 

determine the guilt or innocence of defendants Armstrong and 

Randolph separately. We disagree.

A. Standard of Review

[T]he plain error rule ... is always to be 

applied cautiously and only in the 

exceptional case where, after reviewing the 

entire record, it can be said the claimed 

error is a “fundamental error, something so 

basic, so prejudicial, so lacking in its 

elements that justice cannot have been 

done,” or “where [the error] is grave error 

which amounts to a denial of a fundamental 

right of the accused,” or the error has 

“’resulted in a miscarriage of justice or in 

the denial to appellant of a fair trial’” or 

where the error is such as to “seriously 

affect the fairness, integrity or public 

reputation of judicial proceedings” or where 

it can be fairly said “the instructional 

mistake had a probable impact on the jury's 

finding that the defendant was guilty.”
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State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 

333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 

375, 378 (1983)).

“On appeal, this Court reviews a jury charge contextually 

as a whole, ‘and when so considered if it presents the law of 

the case in such manner as to leave no reasonable cause to 

believe the jury was misled or misinformed, we will not sustain 

an exception for that the instruction might have been better 

stated.’” Progress Energy Carolinas, Inc. v. Strickland, 200 

N.C. App. 600, 602, 685 S.E.2d 521, 524 (2009) (quoting Jones v. 

Satterfield Dev. Co., 16 N.C. App. 80, 86–87, 191 S.E.2d 435, 

439–40, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972)).

B. Analysis

In the instant case, the charges against defendants were 

consolidated for trial. Defendants contend that the trial court 

impermissibly implied in its mandate to the jury that one 

defendant could not be found guilty unless both were. 

Defendants contend that this was plain error.

In its jury instructions, the trial court listed the 

charges against each defendant individually. However, in 

several instances, the court also referred to the defendants 

collectively. In the beginning of its jury instructions:
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In this case, the defendants, Mr. Armstrong 

and Mr. Randolph, have entered pleas of not 

guilty to these charges. The fact that they

have been charged is no evidence of guilty.

[sic] Under our system of justice when a 

defendant pleads not guilty, he is not 

required to prove his innocence. He is 

presumed to be innocent. The state must 

prove to you that the defendants are guilty 

beyond a reasonable doubt.

(Emphasis added) With respect to its instructions on the 

crimes common to both defendants:

Now, with respect to the charges of robbery 

with a dangerous weapon and first-degree 

burglary on Mr. Armstrong in 10-CRS-52611 

and 10-CRS-52613 that’s Mr. Randolph guilty 

of robbery with a dangerous weapon or not 

guilty or guilty of first-degree burglary or 

not guilty. I’m going to give you the 

instructions on both –- and these 

instructions apply to both defendants on 

these two charges. You all understand that 

now.

The instructions I’m going to give you I’m 

going to give it to you one time. It’s 

going to apply to both defendants.

(Emphasis added) With respect to its instructions on the 

elements of robbery with a dangerous weapon:

The defendants, Mr. Armstrong and Mr. 

Randolph, have been charged with robbery 

with a firearm . . .

The first element [is] that the defendants

took property . . .

Secondly, that the defendants carried away 

the property. . . .
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Four, that the defendants knew they were not 

entitled to take the property. . . .

Fifth, that at the time of the taking, the 

defendants intended to deprive the person of 

its use permanently. . . .

Sixth, that the defendants had a firearm in 

their possession at the time they obtained 

the property. . . .

And, seventh, that the defendants obtained 

the property by endangering or threatening 

the life of that person with the firearm.

(Emphasis added) Finally, with respect to its instructions 

on the elements of first-degree burglary1:

These instructions will apply equally to 

both of these defendants. Now, the 

defendants have been charged with firstdegree burglary . . .

Now, for you to find the defendants guilty 

of this charge, the state must prove six 

things . . .

First, that there was a breaking and 

entering by the defendants or someone with 

whom they were acting in concert. . . .

And, sixth, that at the time of the breaking 

and entering, the defendants or someone with

whom they were acting in concert intended to 

commit armed robbery.

 

1 We note that the trial court made reference to the doctrine of 

acting in concert in its instructions. The doctrine of acting 

in concert, however, is designed to impose principal liability 

on a secondary actor in a crime. In the instant case, both 

defendants were charged as principal actors; as such, the acting 

in concert doctrine was not appropriately applied.
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(Emphasis added) At one point during the jury 

instructions, counsel for defendant Randolph observed that, 

during the instructions on assault, the trial court made 

reference to “they” when only one defendant was charged with 

that crime. The court corrected this instruction to the jury. 

The jury returned separate verdict sheets against each 

defendant.

Defendants contend that the court repeatedly referred to 

defendants collectively, thus improperly influencing the jury to 

require that both be found guilty. Defendants cite to our 

decision in State v. Adams in support of this argument. In 

Adams, two defendants were found guilty of two counts each of 

attempted first-degree murder and assault with a deadly weapon 

with intent to kill inflicting serious injury. State v. Adams, 

212 N.C. App. 413, 414, 711 S.E.2d 770, 771 (2011). The trial 

court, in its instructions to the jury, repeatedly referred to 

the defendants collectively, with statements like “to find the 

defendants guilty[,]” “each of the defendants had this 

intent[,]” and “the defendants did not act in self-defense[.]” 

Id. at 416, 711 S.E.2d at 772-73. Reviewing the jury 

instructions for plain error, we concluded that:

The jury instructions reproduced above 
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impermissibly grouped defendants together in 

presenting the charges, the issues, and 

defendants to the jury. Given that 

conflicting evidence was presented as to the 

order in which weapons were drawn and what 

role generally each defendant played in the 

incident, this confusion likely had an 

effect on the jury's verdict. As in 

McCollum, “we are unable to say here, as we 

have said in other cases, that we are 

‘convinced that the jurors were not misled 

by the portion of the charge to which 

defendants except.’” 321 N.C. at 560, 364 

S.E.2d at 113.

Id. at 418, 711 S.E.2d at 773. We therefore reversed and 

remanded for a new trial as to both defendants.

In the instant case, any such error was ameliorated by the 

trial court’s further instructions. Although the trial court 

referred to defendants collectively in some places, it also 

referred to them separately. For example, in its charge to the 

jury, the trial court listed the charges against each defendant 

separately. Further, in its subsequent instructions to the 

jury, although it defined each charge as applying to both

defendants, the trial court reminded the jury that each offense 

was a separate count on a separate verdict sheet for each 

defendant. Additionally, when counsel for defendant Randolph 

indicated that the trial court had erroneously instructed the 

jury that both defendants were subject to the assault with a 

deadly weapon charge, the trial court corrected itself in its 
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instructions. Where a trial court issues an erroneous 

instruction, this error may be ameliorated by a corrective 

instruction. 

Viewing the jury instructions contextually, as a whole, we 

hold that each of the two defendants has failed to demonstrate 

that any error upon the part of the trial court had a probable 

impact on the jury’s determination of guilt.

This argument is without merit.

III. Alleged Breach of Impartiality by the Trial Court

In their second argument, defendants contend that the trial 

court erred in making repeated statements and questions 

conveying to the jury an opinion that defendants were guilty of 

the crimes with which they were charged. We disagree.

A. Standard of Review

The question of whether statements by a trial court during 

a trial violate the court’s duty of impartiality is preserved as 

a matter of law, regardless of whether a defendant objects 

during the trial. State v. Duke, 360 N.C. 110, 123, 623 S.E.2d 

11, 20 (2005), cert. denied, 549 U.S. 855, 166 L.Ed.2d 96 

(2006); State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 

(1989). Whether the statements deprive the defendant of a fair 

trial is “determined by what is said and its probable impact 
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upon the jury in light of all attendant circumstances.” State 

v. Burke, 342 N.C. 113, 122-23, 463 S.E.2d 212, 218 (1995).

B. Analysis

Defendants contend that the trial court erred in its 

questions and statements to witnesses and in its instructions to 

the jury, which defendants allege implied that defendants were 

guilty of the offenses charged. We disagree.

At several points during the examination of witnesses, the 

court asked questions of witnesses, or made statements, in order 

to clarify testimony. Such questions are within the discretion 

of the trial court. See State v. Smarr, 146 N.C. App. 44, 49, 

551 S.E.2d 881, 884 (2001), disc. review denied, 355 N.C. 291, 

561 S.E.2d 500 (2002). During the State’s examination of 

Gaines, the following exchange took place:

THE COURT: What date was this?

Q. Do you recall it being in June of 2010, 

Mr. Gaines?

A. Yes.

Q. Do you remember the specific date?

A. No, I don't.

THE COURT: June what?

THE STATE: Judge, the indictment reads 6-22 

of 2010.
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THE COURT: Well, he said June, okay. June 

of 2010.

A. The 22nd.

THE COURT: Go ahead.

. . .

THE COURT: Roger what's his name? Roger 

who?

MR. WIGGINS: Objection to the use of the 

name, your Honor, without any further 

description.

THE COURT: Sir.

A. He the one there.

MR. WIGGINS: Objection to the use of the 

defendant's name without any further 

description or foundation.

THE COURT: All right. Well, what's Roger's 

name?

A. Roger Benjour Armstrong.

THE COURT: Roger Armstrong, okay. Go ahead.

A. He came in, pistol whipped me about ten 

to fifteen times.

THE COURT: How do -- wait a minute. How do 

you know him?

A. I don't know.

THE COURT: You don't know him.

A. I don't know him.
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THE COURT: You've never seen him before.

A. Never seen him before. But come to find 

out, he has a cousin that stays directly 

behind me.

MR. WIGGINS: Well, objection to what he 

found out, your Honor.

THE COURT: No, no, no, no, don't get into 

that.

A. I never seen the guy before.

THE COURT: All right, Mr. Wolfe, you need to 

flush that out.

. . .

THE COURT: Which one is the fellow you refer 

to as Roger Armstrong?

A. The light-skin one.

THE COURT: Where is he? Is he here today?

A. Right there. (pointing.)

THE COURT: Where is he seated?

A. Right beside his lawyer.

THE COURT: What's he got on?

A. Multi-colored shirt, Levi jeans, shoes.

THE COURT: All right. Let the record reflect 

that he's identified the defendant, Roger 

Armstrong. Go ahead.

. . .

THE COURT: What did he say?
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A. He didn't say anything. He just went 

straight to the back room, just ransacking 

the place. As Roger was asking –

THE COURT: Where is he? Is he in the 

courtroom today?

A. Yes, he is.

THE COURT: Where is he?

A. To the far room, white tie.

THE COURT: Wearing a white tie, sitting next 

to Mr. Wiggins.

A. Yes.

THE COURT: That's Dominique who?

A. Randolph.

THE COURT: Okay.

Q. Does that mean, then, Mr. Gaines, that 

the defendant, Roger Armstrong, began 

hitting you and the defendant, Dominique 

Randolph, went to another part of the house.

A. Right.

THE COURT: Let the record reflect he's 

identified the defendant, Dominique 

Randolph, as the other individual. Go ahead.

We find this interaction illustrative of those to which 

defendants object. Defendants contend that this excerpt, taken 

alongside the others, constituted the trial court improperly 

conveying an opinion that defendants were guilty of the offenses 
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charged. Viewing the record under the totality of the 

circumstances, we do not agree. The trial court’s exercise of 

its discretionary power to clarify the testimony of witnesses 

was proper.

Defendants further contend that the trial court’s jury 

instructions, in implying that defendants acted together, 

similarly constituted an improper expression of opinion. 

Defendants’ contentions are based upon their first argument, 

that the trial court conflated the defendants. We hold that the 

trial court’s conflation of defendants was not plain error,

under the totality of the circumstances. We further hold that 

the trial court’s charge to the jury did not express any opinion 

as to the guilt of either defendant.

This argument is without merit.

IV. Ineffective Assistance of Counsel

In his third argument, defendant Randolph contends that he 

was deprived of his Sixth Amendment right to effective 

assistance of counsel. We dismiss this argument without 

prejudice to defendant’s filing of a motion for appropriate 

relief with the trial court.

A. Standard of Review

Our Supreme Court has instructed that 

“should the reviewing court determine the 
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IAC claims have been prematurely asserted on 

direct appeal, it shall dismiss those claims 

without prejudice to the defendant's rights 

to reassert them during a subsequent MAR 

proceeding.” Fair at 167, 557 S.E.2d at 525. 

In order to determine whether a defendant is 

in a position to adequately raise an 

ineffective assistance of counsel claim, we 

stress this Court is limited to reviewing 

this assignment of error only on the record 

before us, without the benefit of 

“information provided by defendant to trial 

counsel, as well as defendant's thoughts, 

concerns, and demeanor[,]” Buckner at 412, 

527 S.E.2d at 314, that could be provided in 

a full evidentiary hearing on a motion for 

appropriate relief.

State v. Stroud, 147 N.C. App. 549, 554-55, 557 S.E.2d 544, 547 

(2001).

To prevail on a claim of ineffective 

assistance of counsel, a defendant must 

first show that his counsel’s performance 

was deficient and then that counsel’s 

deficient performance prejudiced his 

defense. Deficient performance may be 

established by showing that counsel’s 

representation fell below an objective 

standard of reasonableness. Generally, to 

establish prejudice, a defendant must show 

that there is a reasonable probability that, 

but for counsel’s unprofessional errors, the 

result of the proceeding would have been 

different. A reasonable probability is a 

probability sufficient to undermine 

confidence in the outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 

(citations and quotation marks omitted), cert. denied, 549 U.S. 

867, 166 L. Ed. 2d 116 (2006).
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B. Analysis

Defendant Randolph contends that he received ineffective 

assistance of counsel (IAC) in violation of his Sixth Amendment 

rights.

When an IAC claim is brought on direct appeal, our 

preliminary inquiry is whether this Court has sufficient 

information to determine the claim, or whether that claim should 

be dismissed without prejudice so that the appellant may file it

as a Motion for Appropriate Relief with the trial court. Stroud

at 554-55, 557 S.E.2d at 547.

In the instant case, defendant Randolph contends that the 

trial court’s denial of his attorney’s motion to suppress 

evidence, coupled with his attorney’s alleged elicitation of 

evidence linking defendant to the crime scene, constituted 

ineffective assistance of counsel. We hold, however, that there 

is insufficient evidence in the record before us to determine 

IAC. Accordingly, we dismiss this portion of Randolph’s appeal 

without prejudice.

V. Conclusion

The trial court did not commit plain error in its 

instructions to the jury with regard to the two defendants. The 

trial court did not violate its duty of impartiality with regard 
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to the guilt of the two defendants. Defendant Randolph’s IAC 

argument is dismissed without prejudice.

NO ERROR.

Judges ELMORE and STROUD concur.

Report per Rule 30(e).