An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-722 NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Wake County Nos. 12 CRS 204030, 005922 JOSEPH E. TUCKER
Appeal by defendant from judgment entered 18 October 2012
by Judge Paul G. Gessner in Wake County Superior Court. Heard
in the Court of Appeals 8 October 2013.
Attorney General Roy Cooper, by Special Deputy Attorney General Daniel S. Hirschman, for the State.
Parish & Cooke, by James R. Parish, for defendant appellant.
McCULLOUGH, Judge.
Joseph E. Tucker (“defendant”) appeals from his convictions
for common law robbery, conspiracy to commit common law robbery,
and attaining the status of an habitual felon. For the
following reasons, we find no error.
I. Background -2- This case arises as a result of a robbery at the King’s
Motel on South Wilmington Street in Raleigh during the early
morning hours of 22 February 2012.
Prior to the robbery, Joseph Johnson (“co-defendant”) and
Bryan Rydzewski spent much of 21 February 2012 together in
Raleigh panhandling, drinking alcohol, and getting high on crack
cocaine. After splitting up from Rydzewski at some point during
the day, co-defendant met back up with Rydzewski shortly after
midnight on 22 February 2012. At that point, Rydzewski was
joined by Tyrone Cox on a park bench. There co-defendant,
Rydzewski, and Cox smoked crack cocaine for several minutes
before deciding to get a motel room to get out of the cold.
The three men then walked to the King’s Motel, where Cox
rented a room. Within approximately an hour of arriving at the
motel room, the three men finished smoking their crack cocaine
and co-defendant left the motel room in search of more crack
cocaine and girls. Co-defendant returned to the motel room
alone approximately twenty minutes later.
Several minutes after co-defendant returned, there was a
knock on the motel room door. Co-defendant opened the door and
two men with hoods and bandanas covering their faces barged in.
One of the men approached Cox, held a gun in Cox’s face, and -3- demanded money. When Cox refused, the man struck Cox in the
head with the gun and took his wallet. The two men then fled.
As Cox recovered and began to call the police, co-defendant
indicated he wanted nothing to do with the situation and also
left the motel room.
Officers from the Raleigh Police Department arrived within
minutes. While patrolling the area around the King’s Motel,
Officer Lane noticed a black male in black clothing matching the
description of the suspects walking down the street and stopped
him. That man was later identified as co-defendant. As Officer
Lane spoke with co-defendant, he noticed two additional suspects
in dark clothing running north and radioed for backup.
Responding officers arrived and detained the suspects and a
female. The suspects were later identified as Mark Thompson and
defendant.
Officers searching the area near where Thompson and
defendant were detained recovered a wallet containing Cox’s
identification and a gun matching the description of that used
in the robbery.
Shortly thereafter, the police brought Rydzewski to where
defendant, co-defendant, and Thompson were detained. Rydzewski,
from the back seat of a patrol car, then identified each suspect -4- as they were individually brought in front of the patrol car’s
headlights. At that time, defendant, co-defendant, and Thompson
were arrested.
On 2 April 2012, defendant was indicted by a Wake County
Grand Jury on two counts of robbery with a dangerous weapon and
one count of conspiracy to commit robbery with a dangerous
weapon. On 5 June 2012, defendant was additionally indicted
for attaining the status of an habitual felon. Co-defendant and
Thompson were indicted on similar charges for the King’s Motel
Robbery.
Subsequent to the indictments, Thompson entered a plea of
guilty and agreed to testify against defendant and co-defendant.
The State then filed a motion to join defendant’s and co-
defendant’s cases for trial on 30 August 2012.
Defendant’s and co-defendant’s cases were called for trial
in Wake County Superior Court on 15 October 2012, the Honorable
Paul G. Gessner, Judge Presiding. Upon hearing arguments
concerning the State’s motion for joinder, the trial court
joined defendant’s and co-defendant’s cases for trial over
defendant’s objection.
At trial, Thompson was called as a witness by the State and
testified that he and defendant were out looking for someone to -5- rob when they bumped into co-defendant in the early morning
hours of 22 February 2012. Thompson further testified that he,
defendant, and co-defendant then devised the plan to rob
Rydzewski and Cox in the motel room. Following the State’s
case, co-defendant took the stand in his own defense. Although
co-defendant acknowledged that he bumped into Thompson and
defendant while out searching for crack cocaine and girls, co-
defendant denied any role in planning or committing the robbery.
Co-defendant instead testified that he simply arranged to
purchase crack cocaine from Thompson and defendant and informed
them of the room where he, Rydzewski, and Cox were staying at
the King’s Motel. Defendant did not testify at trial.
Upon the close of all the evidence, defendant moved to
dismiss the charges. The trial court allowed defendant’s motion
in part and denied it in part, dismissing the charges of robbery
with a dangerous weapon and conspiracy to commit robbery with a
dangerous weapon but allowing the case to proceed to the jury on
charges of common law robbery and conspiracy to commit common
law robbery.
On 18 October 2012, the jury returned verdicts finding
defendant guilty of two counts of common law robbery and
conspiracy to commit common law robbery. Defendant then entered -6- a guilty plea to attaining the status of an habitual felon. On
18 October 2012, the trial court entered judgment sentencing
defendant to a term of 100 to 132 months imprisonment; a term
within the presumptive range for a class C felony by a defendant
with a prior record level IV. Defendant gave notice of appeal
in open court.
II. Discussion
Defendant raises the following four issues on appeal:
whether (1) the trial court erred in joining his case with co-
defendant’s case for trial; (2) the trial court erred in denying
his motion to suppress the pretrial show-up identification; (3)
the trial court erred in sentencing him as an habitual felon;
and (4) he received ineffective assistance of counsel. We
address each issue in order.
JOINDER
The first issue raised by defendant on appeal is whether
the trial court erred in joining his case with co-defendant’s
case for trial. We hold the trial court did not err.
“The question of whether defendants should be tried jointly
or separately is within the sound discretion of the trial judge,
and the trial judge's ruling will not be disturbed on appeal
absent a showing that joinder has deprived a defendant of a fair -7- trial.” State v. Evans, 346 N.C. 221, 232, 485 S.E.2d 271, 277
(1997), cert. denied, Gillis v. North Carolina, 522 U.S. 1057,
139 L.Ed.2d 653 (1998).
In the present case, the trial court joined defendant’s and
co-defendant’s cases for trial on the basis that both were
charged with accountability for each offense. Not only is
joinder permitted in such a case, see N.C. Gen. Stat. § 15A-
926(b)(2)(a) (2011) (Permitting charges against two or more
defendants to be joined for trial “when each of the defendants
is charged with accountability for each offense[.]”), “[p]ublic
policy supports consolidation of trials where defendants are
alleged to be responsible for the same behavior.” State v.
Tirado, 358 N.C. 551, 564, 599 S.E.2d 515, 526 (2004) (citing
State v. Nelson, 298 N.C. 573, 586, 260 S.E.2d 629, 639 (1979),
cert. denied, 446 U.S. 929, 64 L.Ed.2d 282 (1980)).
Nevertheless, defendant contends he was denied a fair trial
as a result of the joinder because his and co-defendant’s
defenses were completely antagonistic. Specifically, defendant
denied involvement in the robbery and defended the case on the
basis that there was insufficient evidence of his guilt. On the
other hand, co-defendant acknowledged being present during the -8- robbery perpetrated by defendant and Thompson, but maintained he
was merely an innocent victim.
As this Court has recognized,
[t]he law is clear in stating that “the presence of antagonistic defenses does not, standing alone, warrant severance.” State v. Golphin, 352 N.C. 364, 400, 533 S.E.2d 168, 195 (2000), certs. denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001)). Rather, “‘the test is whether the conflict in defendants' respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial.’” State v. Lowery, 318 N.C. 54, 59, 347 S.E.2d 729, 734 (1986) (citation omitted).
In determining whether the antagonistic positions of the defendants were such that joinder amounted to prejudice, this Court must look to whether the trial court became an evidentiary battlefield “where the state simply stands by and witnesses ‘a combat in which the defendants [attempt] to destroy each other.’” State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979) (citation omitted), cert. denied, 446 U.S. 929, 64 L.Ed.2d 282 (1980). In applying this test to facts, the courts have looked to whether the State relied on the codefendants' statements alone to prove their case or whether there was evidence independent of such statements. Golphin, 352 N.C. at 400–01, 533 S.E.2d at 195–96.
State v. Love, 177 N.C. App. 614, 621-22, 630 S.E.2d 234, 239-40
(2006) (alteration in original).
In this case, defendant points to co-defendants’
identification of him as one of the perpetrators of the robbery -9- and argues co-defendant’s testimony tipped the scales against
him, resulting in an unfair trial. While we recognize co-
defendant’s testimony implicated defendant and was directly
contradictory to defendant’s defense, we hold defendant has not
demonstrated prejudice warranting a new trial.
As we noted in Love, “[t]his is not a case where the State
simply stood by and relied on the testimony of the respective
defendants to convict them. The State itself offered plenary
evidence of . . . defendants' guilt.” 177 N.C. App. at 622, 630
S.E.2d at 240. This evidence included testimony from Thompson
describing defendant’s role in planning and executing the
robbery, an out-of-court identification of defendant by
Rydzewski shortly after the robbery, and other circumstantial
evidence of defendant’s guilt. Moreover, defendant’s and co-
defendant’s antagonistic defenses were not so irreconcilable
that the jury would unjustifiably infer both were guilty. See
State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979)
(“Prejudice would ordinarily result where codefendants' defenses
are so irreconcilable that ‘the jury will unjustifiably infer
that this conflict alone demonstrates that both are guilty.’” -10- (quoting Rhone v. United States, 365 F.2d 980, 981 (D.C. Cir.
1966)).1
Given the State’s substantial plenary evidence against
defendant, we hold the joinder of the cases did not amount to
prejudice resulting in an unfair trial. Thus, the trial court
did not abuse its discretion.
PRETRIAL IDENTIFICATION
Defendant next argues that the trial court erred in denying
his motion to suppress evidence of Rydzewski’s pretrial
identification. We disagree.
“Due process forbids an out-of-court confrontation which is
so unnecessarily ‘suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.’”
State v. Leggett, 305 N.C. 213, 220, 287 S.E.2d 832, 837 (1982)
(quoting Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed.
2d 1247, 1253 (1968)). “If an out-of-court identification
procedure is so suggestive that it leads to a substantial
likelihood of misidentification, the out-of-court identification
is inadmissible.” State v. Oliver, 302 N.C. 28, 45, 274 S.E.2d
183, 194-95 (1981).
1 We further note that defendant had the opportunity to cross- examine co-defendant at trial and co-defendant’s testimony would be admissible in a separate trial for defendant. -11- Our courts apply “a two-step process for determining whether an identification procedure was so suggestive as to create a substantial likelihood of irreparable misidentification.” State v. Marsh, 187 N.C. App. 235, 239, 652 S.E.2d 744, 746 (2007), overruled on other grounds by State v. Tanner, 364 N.C. 229, 695 S.E.2d 97 (2010). “‘First, the Court must determine whether the identification procedures were impermissibly suggestive. Second, if the procedures were impermissibly suggestive, the Court must then determine whether the procedures created a substantial likelihood of irreparable misidentification.’” Id. (quoting State v. Fowler, 353 N.C. 599, 617, 548 S.E.2d 684, 698 (2001), cert. denied, 535 U.S. 939, 152 L. Ed. 2d 230 (2002)). Even though they may be “suggestive and unnecessary,” showups “are not per se violative of a defendant's due process rights.” State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982).
State v. Rawls, 207 N.C. App. 415, 423, 700 S.E.2d 112, 118
(2010).
Addressing the first step in the analysis, we note “[s]how-
ups, the practice of showing suspects singly to witnesses for
purposes of identification, have been criticized as an
identification procedure by both [the N.C. Supreme Court] and
the U.S. Supreme Court.” Turner, 305 N.C. at 364, 289 S.E.2d at
373 (citing Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199
(1967); Oliver, 302 N.C. 28, 274 S.E.2d 183). This is because a
show-up “may be inherently suggestive for the reason that
witnesses would be likely to assume that the police presented -12- for their view persons who were suspected of being guilty of the
offense under investigation.” Id.
In the present case, Rydzewski was informed by officers
that they had found possible suspects and was taken by patrol
car to where defendant, co-defendant, and Thompson were
detained. From the back seat of the patrol car, Rydzewski then
identified each individual as they were brought in front of the
patrol car lights one at a time.
As we have held in cases addressing similar show-up
identifications, see Rawls, 207 N.C. App. at 423-24, 700 S.E.2d
at 118, we hold the show-up style identification in this case
was impermissibly suggestive. Nevertheless, we do not find a
substantial likelihood of misidentification.
“An unnecessarily suggestive show-up identification does
not create a substantial likelihood of misidentification where
under the totality of the circumstance surrounding the crime,
the identification possesses sufficient aspects of reliability.”
Turner, 305 N.C. at 364, 289 S.E.2d at 373.
The factors to be considered in evaluating the likelihood of irreparable misidentification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty -13- demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.
State v. Grimes, 309 N.C. 606, 609-10, 308 S.E.2d 293, 294-95
(1983). “‘Against these factors is to be weighed the corrupting
effect of the suggestive identification itself.’” Turner, 305
N.C. at 365, 289 S.E.2d at 374 (quoting Manson v. Brathwaite,
432 U.S. 98, 114, 53 L. Ed. 2d 140, 154 (1977)).
It is clear the trial court considered the five factors
when ruling on defendant’s motion to suppress as the trial court
specifically stated:
Based upon the totality of the –- all the evidence that's been presented on this issue, I'm going to, in my discretion, allow his testimony regarding the showup identification, specifically he was able to identify the jacket, the height, the weight, the differences in weight between the two subjects, and by that I mean the two subjects that are in addition to Mr. Johnson. The proximity in time, the proximity of the showup and the crime scene, it's a very close distance. He did have an opportunity to view the criminals at the time of the crime. The degree of attention that he had, arguably he had been drinking and smoking crack, but there is, as he testified, he was aware of it and this was a major event. I think I've touched on the other factors set forth in the brief, but the level of certainty demonstrated by him at the time of the confrontation would show up -- would indicate unequivocally that it was the same people, so in my discretion I am going to allow his testimony regarding the showup identification. -14-
Nevertheless, defendant now attacks the reliability of
Rydzewski’s identification by arguing Rydzewski was impaired by
drugs and alcohol at the time of the robbery, had limited
opportunity to observe the perpetrators, and could only give
general descriptions as to perpetrators’ clothing, height, and
weight. We are unpersuaded by defendant’s arguments.
Upon our own review of the voir dire testimony, we are in
agreement with the trial court’s analysis of the five factors
above. Despite the suggestive nature of the show-up
identification, the identification possessed sufficient aspects
of reliability so that there was not a substantial likelihood of
irreparable misidentification. Therefore, the trial court did
not err in denying defendant’s motion to suppress.
HABITUAL FELON STATUS
In defendant’s third and fourth issues on appeal, defendant
challenges his status as an habitual felon based on a variance
between the allegations in his habitual felon indictment and the
proof offered by the State. We address these issues together.
At the outset, we recognize that there is a variance
between the allegations in the indictment and the proof. The
first of the three felony convictions listed on defendant’s
habitual felon indictment provides: “On June 1, 2010 . . . -15- defendant did commit the felony of Breaking and Entering and
thereafter pled guilty and judgment was entered on June 23,
2010, in Wake County District Court file number 10 CR 213205.”
The State’s evidence supporting defendant’s status as an
habitual felon, however, includes judgments from file numbers 11
CRS 217351, 10 CR 224208, and 10 CR 213203.
Having plead guilty to attaining the status of an habitual
felon, defendant recognizes he waived any issue regarding the
variance.
As this Court held in State v. Baldwin, 117 N.C. App. 713, 717, 453 S.E.2d 193, 195, cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995), when considering the defendant's contention that a habitual felon indictment contained incorrect information regarding one of his felony convictions, “[t]he issue of variance between the indictment and proof is properly raised by a motion to dismiss.” When a defendant fails to raise the issue at trial, he waives his right to appeal that issue. Id. (declining to address the issue because defendant moved to dismiss on double jeopardy rather than variance grounds).
By pleading guilty, defendant thus waived his right to challenge the indictment on the ground that the information in the indictment was incorrect. See State v. Braxton, 352 N.C. 158, 173, 531 S.E.2d 428, 437 (2000) (“A defendant waives an attack on an indictment when the validity of the indictment is not challenged in the trial court.”), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). We also note that defendant's counsel stipulated to the -16- convictions set out in the indictment, resulting in no fatal variance. Baldwin, 117 N.C. App. at 716, 453 S.E.2d at 194 (“[N]o fatal variance was shown between the indictment and proof at trial since defendant's counsel stipulated to the previous convictions as set out in the indictment.”).
State v. McGee, 175 N.C. App. 586, 588-89, 623 S.E.2d 782, 784
(2006).
Yet, recognizing he can no longer raise the variance
between the indictment and proof as an issue on appeal,
defendant now asserts that he was denied the effective
assistance of counsel. Specifically, defendant argues his
counsel should have moved to dismiss the habitual felon charge
instead of pleading guilty.
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. -17- 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).
Although we acknowledge the variance between the indictment
and proof, we hesitate to hold trial counsel’s failure to move
for dismissal constitutes deficient performance where the record
reveals the plea to attaining the status of an habitual felon
was part of a larger agreement whereby the State would not
proceed on two aggravating factors and would dismiss charges
against defendant for failure to report as a sex offender and
habitual felon status related to that offense. Nevertheless,
assuming arguendo that trial counsel’s performance was
deficient, defendant was not prejudiced. Although there is a
variance between the indictment and the proof, it appears from
the record that defendant’s conviction in case number 10 CR
213203 was for the same offense alleged in the indictment. In
fact, comparing the habitual felon indictment and the judgment
in case number 10 CR 213203 reveals that the two match in all
respects except for the last digit in the file number.2 Thus,
the error appears to be merely clerical.
2 What is more, it appears from the last page of the judgment in case number 10 CR 213203 that defendant was charged with felony breaking and entering in case number 10 CR 213203 for an offense -18- It is likely that if defendant had moved to dismiss based
on the variance, the State could have moved to amend the
indictment.
While N.C. Gen. Stat. § 15A-923(e) (2011) provides “[a]
bill of indictment may not be amended[,]” our appellate courts
have long interpreted the term “amendment” to mean “any change
in the indictment which would substantially alter the charge set
forth in the indictment.” State v. Carrington, 35 N.C. App. 53,
58, 240 S.E.2d 475, 478, disc. review denied and appeal
dismissed, 294 N.C. 737, 244 S.E.2d 155 (1978); see also State
v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984). We
hold the amendment of the file number in this case would not
have substantially altered the indictment. Moreover, it is
clear from defendant’s plea that he understood the charges
against him and did not dispute the prior conviction for
breaking and entering.
III. Conclusion
For the reasons discussed above, we find no error and hold
defendant received effective assistance of counsel.
No error.
Judges McGee and DILLON concur.
committed on 1 June 2010. Yet, there is no record of a conviction. -19- Report per Rule 30(e).