State v. Johnson ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-382
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 12 CRS 5924, 204029,
206399
JOSEPH DARNELL JOHNSON
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 David W. Boone, for the State.
David L. Neal for defendant-appellant.
McCULLOUGH, Judge.
Joseph Darnell Johnson (“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
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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, 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,
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 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 defendant left the room in search of more crack cocaine and
girls. Defendant returned to the motel room alone approximately
twenty minutes later.
Several minutes after defendant returned, there was a knock
on the motel room door. 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 demanded
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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, 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 defendant. As Officer
Lane spoke with 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 Joseph
Tucker (“co-defendant”).
Officers searching the area where Thompson and co-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
as they were individually brought in front of the patrol car’s
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headlights. At that time, defendant, co-defendant, and Thompson
were arrested.
On 2 April 2012, a Wake County Grand Jury indicted
defendant on two counts of robbery with a dangerous weapon and
one count of conspiracy to commit robbery with a dangerous
weapon for the King’s Motel robbery. Co-defendant and Thompson
were indicted on similar charges for the robbery. In addition,
on 16 April 2012 and 25 June 2012, respectively, defendant was
indicted on a further count of robbery with a dangerous weapon
for a separate incident and for attaining the status of an
habitual felon.
Subsequent to the indictments, Thompson entered a guilty
plea and agreed to testify against defendant and co-defendant.
On 30 August 2012, the State filed a motion to join
defendant’s and co-defendant’s cases for trial. In response,
defendant filed a motion for separate trials on 11 October 2012.
Defendant’s and co-defendant’s cases were called for jury
trial in Wake County Superior Court on 15 October 2012, the
Honorable Paul G. Gessner, Judge Presiding. After hearing
arguments regarding the joinder of the cases, the trial court
joined defendant’s and co-defendant’s cases for trial.
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At trial, Thompson was called as a witness by the State and
testified that he and co-defendant were out looking for someone
to rob when they bumped into defendant in the early morning
hours of 22 February 2012. Thompson further testified that he,
co-defendant, and defendant then devised the plan to rob
Rydzewski and Cox in the motel room. Following the State’s
case, defendant took the stand in his own defense. Although
defendant acknowledged that he bumped into Thompson and co-
defendant while out searching for crack cocaine and girls,
defendant denied any role in planning or committing the robbery.
Defendant instead testified that he simply arranged to purchase
crack cocaine from Thompson and co-defendant and informed them
of the room where he, Rydzewski, and Cox were staying at the
King’s Motel.
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.
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On 18 October 2012, the jury returned verdicts finding
defendant guilty of the two counts of common law robbery and
conspiracy to commit common law robbery stemming from the
initial indictment. Defendant then entered an Alford plea to
the additional charge of common law robbery and pled guilty to
attaining the status of an habitual felon.
Defendant’s convictions from the jury trial were
consolidated with defendant’s plea to having obtained the status
of an habitual felon and defendant was sentenced to a term of
144 to 185 months imprisonment. A separate judgment was entered
sentencing defendant to a concurrent term of 25 to 39 months
imprisonment for defendant’s Alford plea to common law robbery.
Defendant gave oral notice of appeal following sentencing.
II. Discussion
On appeal, defendant contends the trial court erred in
granting the State’s motion for joinder over his objection and
denying his motion for separate trials. We disagree.
“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
trial.” State v. Evans, 346 N.C. 221, 232, 485 S.E.2d 271, 277
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(1997), cert. denied, Gillis v. North Carolina, 522 U.S. 1057,
139 L. Ed. 2d 653 (1998).
The law is clear in stating that the
presence of antagonistic defenses does not,
standing alone, warrant severance. 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. Love, 177 N.C. App. 614, 621, 630 S.E.2d 234, 239-40
(2006) (quotation marks and citations omitted).
In the present case, the trial court joined defendant’s and
co-defendant’s cases for trial over objection 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 the cases of 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, on appeal defendant argues the trial court
erred in joining the cases for trial because the joinder
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interfered with his right to a fair trial. Specifically,
defendant contends he and co-defendant had antagonistic defenses
and the joinder of the cases severely prejudiced his defense
because he was prohibited from introducing police testimony
regarding his statements to police at the time of his arrest.
Where his case came down to the credibility of the testimony at
trial, defendant asserts these prior consistent statements, in
which he denied involvement in the robbery committed by Thompson
and co-defendant, were critical to bolster the credibility of
his testimony at trial. See State v. Gell, 351 N.C. 192, 204,
524 S.E.2d 332, 340 (2000) (“It is well established that a
witness' prior consistent statements may be admitted to
corroborate the witness' sworn trial testimony but prior
statements admitted for corroborative purposes may not be used
as substantive evidence.”).
As defendant points out, co-defendant filed a motion in
limine to exclude inculpating statements of defendant at trial
citing Bruton v. U.S., 391 U.S. 123, 20 L. Ed. 2d 476 (1968)
(holding inculpating statements of a co-defendant must be
excluded from evidence unless the co-defendant testifies and is
subject to cross-examination). Although the State acknowledged
it would not go into defendant’s prior statements, co-defendant
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argued defendant would likely attempt to elicit the statements
on cross-examination. Upon consideration of co-defendant’s
argument, the trial court granted co-defendant’s motion in
limine. Thereafter, during defendant’s cross-examination of
Officer Lane during the presentation of the State’s case,
defendant was prohibited from eliciting testimony from Officer
Lane regarding the substance of his statements to police at the
time of his apprehension.
At the outset of our analysis, we emphasize defendant does
not allege the trial court erred in applying Bruton to exclude
testimony regarding defendant’s prior statements to police.
Instead, defendant argues his otherwise admissible prior
consistent statements were excluded pursuant to Bruton as a
result of the improper joinder of his case with co-defendant’s
case for trial, resulting in an unfair trial.
Upon review of the record, we are unpersuaded by
defendant’s arguments and hold defendant received a fair trial.
Although Bruton controlled when defendant first had the
opportunity to question Officer Lane on cross-examination during
the presentation of the State’s case, defendant later took the
stand in his own defense. While testifying defendant denied any
involvement in planning and executing the robbery and testified
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regarding the substance of his statements to police immediately
following his apprehension. At the point defendant took the
stand and was subject to cross-examination by co-defendant,
Bruton no longer prevented defendant from eliciting testimony of
his prior consistent statements. Defendant’s decision not to
recall those prior witnesses to elicit previously excluded
testimony following his own testimony was a choice he elected to
make. Yet, defendant was not denied a fair trial where he had
the opportunity to do so.
In addition to arguing he was prevented from introducing
his prior consistent statements, defendant further contends that
there was inherent confusion in the jury instructions as a
result of the joinder of the cases. Specifically, defendant
argues the jury instructions prejudiced his case because they
only allowed the jury to find co-defendant guilty of common law
robbery on the basis that co-defendant acted either alone or
together with Thompson and defendant. Similarly, the trial
court’s instruction for conspiracy to commit common law robbery
only allowed the jury to find co-defendant guilty if co-
defendant conspired with Johnson and defendant. Defendant
contends that, because the trial court did not provide the jury
with the option of finding co-defendant guilty on the basis that
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he acted solely with Thompson, the jury instruction was
susceptible to the construction that the jury must convict him
if they determined co-defendant was guilty.
We acknowledge that our Supreme Court “has repeatedly held
that, when two or more defendants are jointly tried for the same
offense, a charge which is susceptible to the construction that
the jury should convict all if it finds one guilty is reversible
error.” State v. Tomblin, 276 N.C. 273, 276, 171 S.E.2d 901,
903 (1970). This, however, is not one of those cases.
In charging the jury, the trial court issued separate
instructions for each defendant on each charge. A review of the
instructions reveals the instructions were clear that in order
to convict defendant the jury must find beyond a reasonable
doubt that defendant had a role in the robbery or conspiracy.
Thus, we hold the jury instructions adequately separated
defendant’s and co-defendant’s cases for determination by the
jury and we find no merit to defendant’s argument.
III. Conclusion
For the reasons discussed above, we hold the trial court
did not err in joining defendant’s and co-defendant’s cases for
trial.
No error.
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Judges McGEE and DILLON concur.
Report per Rule 30(e).