An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                       -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, 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
                                   -3-
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
                                                -4-
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.
                                    -5-
    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.
                                       -6-
    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
                                      -7-
(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
                                        -8-
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
                                           -9-
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
                                         -10-
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
                                        -11-
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.
                         -12-
Judges McGEE and DILLON concur.

Report per Rule 30(e).
