An unpublished opinion of the North Carolina Court of Appeals does not constitute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