State v. Tucker

An unpublished opinion of the North Carolina Court of Appeals does not constitute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