State v. Tuck

• Decision Date: 06 September 2005
• Docket Number: No. COA04-1077.,COA04-1077.
• Citation: 618 S.E.2d 265
• Parties: STATE of North Carolina v. Albert Hilton TUCK, Jr.
• Court: North Carolina Supreme Court

618 S.E.2d 265

STATE of North Carolina v. Albert Hilton TUCK, Jr.

No. COA04-1077.

Court of Appeals of North Carolina.

September 6, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal by defendant from judgment entered 5 April 2004 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 6 June 2005.

Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.

Anne Bleyman, Chapel Hill, for defendant-appellant.

TIMMONS-GOODSON, Judge.

Albert Hilton Tuck, Jr. ("defendant"), appeals his conviction for six counts of robbery with a dangerous weapon. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error.

The State's evidence presented at trial tends to show the following: On 26 November 2003, June Matal ("Matal") and Lois Ellen Smarella ("Smarella") were at Suzio's at Six Forks Station, a women's boutique located in Raleigh, North Carolina. Defendant entered the store, pointed a gun at Matal and Smarella, and ordered Smarella to open the store's cash register. After Smarella was unable to open the cash register, defendant ordered Matal and Smarella to go to the back of the store. Defendant thereafter took money from the cash register and left the store.

On 1 December 2003, Heather Hester ("Hester") was working at KooKaburra Kids, a children's clothing store located in Raleigh and owned by Hester. As Hester was wrapping presents for a customer, defendant entered the store and pointed a gun at her. Defendant ordered Hester to open the store's cash register, and, after "fumbling through" it, he asked Hester if the cash inside the register was all the money she had. Hester replied that it was, and she and an employee of KooKaburra Kids went into a dressing room "to get away." Defendant thereafter took the money from the cash register and left the store.

On 2 December 2003, Laura Maria Scott ("Scott") was working at the Gingerbread House, a florist located in Raleigh and owned by Scott. As Scott was on the telephone, defendant approached Scott, pointed a gun at her, and ordered her to give him her money. Scott thereafter opened the store's cash register, and defendant took between $130.00 and $150.00 from the register and left the store.

On 5 December 2003, Kathleen Elisa Henderson ("Henderson") was working at Triangle Nutrition, a health store located in Raleigh. As Henderson was taking inventory at the front of the store, defendant entered the store, pointed a gun at Henderson, and ordered her to "give him all the money out of the drawer." Henderson opened the store's cash register and gave defendant approximately $350.00. Defendant thereafter left the store.

On 9 December 2003, Karla Pyrtle ("Pyrtle") was working at Shop 20-12, a women's boutique located in Raleigh. After hearing the front door bell of the store chime, Pyrtle exited an office and saw defendant pointing a gun at her. Pyrtle immediately "started screaming" and ran out of the store. When Pyrtle returned to the store, approximately $200.00 had been taken from the store's cash register.

On 16 December 2003, Jennifer Dawn Johnson ("Johnson") was working at the Raleigh Cat Clinic, a veterinarian hospital located in Raleigh. Defendant entered the hospital, pointed a gun at Johnson, and asked her if anyone else was at the hospital. After Johnson informed defendant that a doctor was at the hospital, defendant ordered Johnson to show him the office. Once inside the office, defendant ordered Johnson to open the doctor's purse, and, after doing so, Johnson handed the doctor's wallet to defendant. Defendant took approximately $100.00 in cash out of the wallet, and he asked Johnson "what else" was in the office. Johnson gave defendant the "petty cash" folder, and defendant took approximately $200.00 from it. After ordering Johnson to lay down on the floor of the x-ray room, defendant left the hospital.

On 29 December 2003, Oxford Police Department Sergeant Mark Blair ("Sergeant Blair") went to defendant's residence in Vance County to question defendant about another matter. Two detectives from the Vance County Sheriff's Office and a detective from the Henderson Police Department accompanied Sergeant Blair to defendant's residence, and Sergeant Blair was notified that officers from the Raleigh Police Department were also on their way to the residence. After the officers approached his front door, defendant asked them to come inside his residence. After advising defendant of his Miranda rights, the officers began questioning defendant about a firearm. Defendant initially informed the officers that he had "tossed" the firearm "into a pond" located near his residence. However, defendant later informed the officers that the firearm was located inside a vehicle parked in the driveway. Sergeant Blair thereafter searched the vehicle and discovered a loaded, .38 caliber revolver inside the glove box.

Raleigh Police Department Detective G.R. Passley ("Detective Passley") arrived at defendant's residence after the other officers. Detective Passely suspected defendant was involved in the robberies, and he questioned defendant about clothing the witnesses of the robberies had described the assailant wearing. Defendant told Detective Passley that he had previously thrown away several shirts and other articles of clothing used in the robberies, but that some shirts were inside another vehicle parked in his driveway. Detective Passley found a white t-shirt inside the vehicle, and he noted that it was cut in the back. Defendant informed Detective Passley that he had cut the shirt to enable him to easily pull the shirt over his face during the commission of the robberies.

Defendant was arrested and transported to the Vance County Sheriff's Department. After again advising defendant of his Miranda rights, Detective Passley asked defendant if he wanted to make a statement regarding the robberies. Defendant replied that he did, and he thereafter confessed to each of the six robberies.

On 9 February 2004, defendant was indicted for six counts of robbery with a dangerous weapon. Prior to trial, defendant moved to suppress his custodial confession, arguing that he was intoxicated and under the influence of several drugs at the time he was interviewed. The trial court denied defendant's motion, and his case proceeded to trial the week of 29 March 2004. At trial, defendant testified on his behalf, and he attempted to offer evidence that he was threatened into confession by another individual, who defendant contended had actually committed the crimes. The trial court excluded evidence of the individual's threats to defendant, concluding that the testimony contained hearsay statements used to prove the truth of the matters asserted therein. On 5 April 2004, the jury returned a guilty verdict on each of the charges. The trial court thereafter sentenced defendant to 324 to 446 months incarceration. Defendant appeals.

We note initially that defendant's brief does not contain arguments supporting each of the original nineteen assignments of error. Pursuant to N.C.R.App. P. 28(b)(6) (2005), the omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those issues argued by defendant in his brief.

The issues on appeal are whether the trial court erred by: (I) denying defendant's motion to dismiss the charge of robbery of Pyrtle with a dangerous weapon; (II) failing to set aside the verdict on the charge of robbery of Pyrtle with a dangerous weapon; (III) allowing Pyrtle's in-court identification of defendant; (IV) denying defendant's motion to suppress his confession; (V) excluding evidence regarding any threats defendant may have received that prompted the confession; and (VI) refusing to sentence defendant in the mitigated range for each charge.

Defendant first argues that the trial court erred by denying his motion to dismiss the charge of robbery of Pyrtle with a dangerous weapon. Defendant asserts that the State presented insufficient evidence to demonstrate that the taking occurred "from the person or in the presence" of Pyrtle. We disagree.

In order to withstand a motion to dismiss a charge of robbery with a dangerous weapon, the State must present substantial evidence that the defendant: (1) unlawfully took or attempted to take personal property from a person or in the presence of another; (2) by the use or threatened use of a dangerous weapon, implement, or means; and (3) thereby endangered or threatened the life of a person. State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002); N.C. Gen.Stat. § 14-87(a) (2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). "When ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence." State v. Davis, 130 N.C.App. 675, 679, 505 S.E.2d 138, 141 (1998).

In the instant case, defendant contends that because Pyrtle ran out of the store immediately upon seeing defendant with the weapon, the subsequent taking did not occur from her person or in her presence as contemplated by N.C. Gen.Stat. § 14-87. However, this Court has previously stated that

The word "presence" [under N.C. Gen.Stat. § 14-87] must be interpreted broadly and with due consideration to the main element of the crime — intimidation or force by the use or threatened use of firearms. "Presence" here means a possession or control by a person so immediate that force or intimidation is essential to the taking of the property. And if the force or intimidation by the use of firearms for the purpose of taking personal property has been used and caused the victim in possession or control to flee the premises and this is followed by the taking of the...