State v. Tucker

895 S.E.2d 882

STATE of North Carolina

v.Dominique Buck TUCKER

No. COA22-865

Court of Appeals of North Carolina.

Filed November 21, 2023

Appeal by Defendant from judgments entered 16 November 2021 by Judge David T. Lambeth, Jr., in Durham County Superior Court. Heard in the Court of Appeals 6 September 2023. Durham County, Nos. 20 CRS 50737-39, 20 CRS 590

Attorney General Joshua H. Stein, by Assistant General Counsel South A. Moore and Solicitor General Fellow James W. Whalen, for the State.

Kimberly P. Hoppin, for defendant.

WOOD, Judge.

Dominique Tucker ("Defendant") appeals the trial court’s entry of three consecutive terms of imprisonment for a total of 185-253 months for first-degree kidnapping, three counts of assault, and interfering with emergency communications. After careful review of the record and applicable law, we determine Defendant’s preparation of his case was not irreparably prejudiced by his pretrial detention and Defendant received a fair trial, free from prejudicial error.

I. Factual and Procedural History

Enomwoyi Moser ("Enomwoyi") lived in her mother Cynthia Moser’s ("Cynthia") apartment in Durham with Cynthia and her grandson, K.P. Enomwoyi met Dominique Tucker ("Defendant") at church. Enomwoyi knew Defendant was married, and initially they were just friends. Eventually their relationship became more serious, and they began a physical relationship. Defendant came to live with Enomwoyi and Cynthia at their apartment because he needed an address change. Enomwoyi told Defendant that they needed to start to do "what’s right" and stop "sleeping with each other under" the same roof. Refraining from having sex became an issue in their relationship.

Their relationship began to disintegrate in January 2020. Enomwoyi discovered Defendant had been handling her gun, and she did not approve because she knew he was a felon. Enomwoyi also discovered she had trichomoniasis, a sexually transmitted disease, and was very angry. She confronted Defendant about it, but he told her he "didn’t catch anything[.]" Their relationship continued to deteriorate.

During the last week of January, Enomwoyi saw Defendant put a gun into his coat pocket after checking to make sure the magazine was in the gun. She told him he needed to get the gun out of Cynthia’s apartment. Defendant denied having a gun. After this incident, the couple had "no good days."

On 29 January 2020, Enomwoyi returned home from work after 8:30 p.m. K.P. was asleep in Enomwoyi’s bedroom, and Defendant and Cynthia were watching television in Cynthia’s room. As Enomwoyi feared would happen, she and Defendant started arguing. When Enomwoyi started to collect a blanket and pillow for Defendant to sleep in the living room, "chaos" erupted as Defendant began bringing up all the arguments they had been having.

While the couple were in the living room, Defendant head butted Enomwoyi by hitting his forehead to her forehead. Enomwoyi told Defendant if he put his hands on her again, she would call the police. The strike was very painful and left her dizzy and confused.

Enomwoyi then walked into the bedroom where K.P. was sleeping to make sure he was still asleep. Defendant followed behind her, "ranting and raging." After Enomwoyi again threatened to call the police, Defendant told her he would give her a reason to call the police. As Defendant "was standing behind [Enomwoyi] in [her] room by the door," he head butted her again, and she "went down." While Enomwoyi was down on the ground, Defendant kept punching her and started kicking her. During this beating, Enomwoyi shouted for Cynthia to call the police.

Cynthia heard Enomwoyi calling for her to call the police. Cynthia entered the room, telling Defendant, "don’t hit her no more, don’t put your hands on her." Defendant turned around and hit Cynthia, busting her lip.

Defendant then "went [back] into the bedroom" and resumed beating Enomwoyi. Enomwoyi again called out for Cynthia to call the police, but Defendant took Cynthia’s phone away and threw it. Cynthia retrieved her phone and called the police. She then went outside to try to get help.

Enomwoyi tried escaping the attack by crawling out of the room, but Defendant continued kicking her until he had kicked her back into the room. Enomwoyi wanted to get out of the apartment out of concern for K.P. and Cynthia, because she did not know if he might turn his attention to them, but Defendant blocked the door in front of her.

At some point, Enomwoyi was able to get up, but Defendant, who was behind her, snatched her back into the room by her hair. Enomwoyi had a hair weave in, and Defendant snatched it all off making her feel like she "was being skinned." He slung her by her ponytail back into the room, and she fell over the bed.

Defendant then began choking Enomwoyi, causing her not to be able to breathe. Defendant had a chokehold around Enomwoyi’s neck, and she pleaded for her life. Enomwoyi seemingly blacked out at that point because she could not see or hear anything. When Enomwoyi regained consciousness, she noticed for the first time that K.P. had awakened and was watching what was happening. She did not know how long K.P. had been awake or watching. Enomwoyi grabbed K.P. and cradled him.

Defendant returned to the room and began punching Enomwoyi once again while she cradled K.P. Finally, Defendant left the room. When Enomwoyi saw he had left, she jumped up, closed the door, and locked it. Defendant once more returned and started kicking the door. Enomwoyi hid K.P. in the closet to protect him, and felt she had to remove herself from the situation.

While Defendant continued kicking the door, Enomwoyi jumped out of the third floor bedroom window, landing on the ground on her right side back and hip. She believed she could not have escaped the room any other way that would not have caused her death. Enomwoyi then saw Defendant looking out of a window and was afraid of being attacked again. She managed to get up and hide. She then heard Defendant start his car and heard what she believed were two gunshots before seeing Defendant pull out of the parking lot and leave.

Enomwoyi suffered a range of injuries from Defendant’s attack. She complained of "severe hip pain and pain all over her face" to an EMS responder. Her face was very swollen, and an eye was swollen shut. There was blood all over her face and a significant laceration under an eye. Enomwoyi was transported to the hospital in an ambulance. Enomwoyi suffered a fractured eye socket fracture and also suffered vision issues, such as a spray of light in her peripheral vision. Pressure in her eye socket prevented her from wearing her contacts. At the time of trial, Enomwoyi continued to experience stabbing pains in her eye with varying degrees of severity, memory loss, headaches, migraines, fatigue, weakness, and struggling to think and focus. She continues to have difficulty eating because of a throat injury due to the choking. As a result of jumping out the window, Enomwoyi has hip issues and will need a hip replacement.

Defendant was arrested the same night of the assault. An officer attempted to stop Defendant for speeding and driving with a missing headlight; however, Defendant did not pull over but instead sped away. After a high-speed pursuit involving multiple officers, Defendant pulled into a driveway, and the officers conducted a "high-risk" apprehension. The arresting officers were unaware that a "bolo" (be on the lookout) bulletin had been issued for Defendant for his assaults upon Enomwoyi and Cynthia.

On 30 January 2020, Defendant was arrested on the charges stemming from the assaults, and the magistrate set his bond at $200,000.00. Defendant did not post bond, remaining in custody. On 16 March 2020, a grand jury indicted him on the charges of possession of a firearm by a felon, first-degree kidnapping of Enomwoyi, assault by pointing a gun, assault by strangulation, assault inflicting serious bodily injury, assault in the presence of a minor, assault on a female, and interference with emergency communication. On 17 March 2020, Defendant was served the indictments while in custody. A bond of $50,000.00 was set for the additional charge of possession of a firearm by a felon. Because the magistrate determined the kidnapping charge involved an act of domestic violence, the magistrate did not set bond on the kidnapping charge and held the matter over for a judge to set the conditions of pretrial release pursuant to N.C. Gen. Stat. § 15A-534.1. Specifically, the magistrate ordered the State to produce Defendant before the next session of court held in Durham County or, if no session were held in the next forty-eight hours, to produce him before a magistrate in forty-eight hours to determine the conditions of pretrial release. The State failed to comply with this order, and Defendant was not afforded the required pretrial detention hearing on the kidnapping charge. Defendant did not post bond on any of the charges and remained in custody.

On 14 September 2020, Defendant filed a motion to dismiss the kidnapping charge, arguing his "arrest" and detention since 17 March 2020 without a pretrial release hearing for the kidnapping charge violated N.C. Gen. Stat. § 15A-534.1 and required its dismissal. The following day, the trial court consolidated Defendant’s charges into one set of pretrial release conditions, setting a combined bond of $250,000.00. Defendant did not post bond and remained in custody. On 12 October 2020, the trial court denied Defendant’s motion to dismiss for failure to meet the requirements of N.C. Gen. Stat. § 15A-954(a)(4) (2022).

Defendant waived his right to a jury trial and a bench trial was held 8-16 November 2021. Defendant renewed his motion to dismiss the kidnapping charge at the start of the trial. The trial court denied the motion prior to the start of trial. The jury found Defendant not guilty of possession of a firearm by a felon, and guilty of first-degree...