State v. Davis ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be p ermitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1313
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Forsyth County
No. 10 CRS 31069, 61853-54
DANIEL DARNELL DAVIS
Appeal by Defendant from Judgments entered 5 June 2013 by
Judge Gary M. Gavenus in Forsyth County Superior Court. Heard in
the Court of Appeals 4 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General
M. Denise Stanford, for the State.
Leslie C. Rawls for Defendant.
STEPHENS, Judge.
Factual Background and Procedural History
On 4 April 2011, Defendant Daniel Darnell Davis was
indicted on one count of possession of a firearm by a felon, one
count of possession with intent to sell and deliver cocaine, one
count of possession of marijuana up to one-half ounce, one count
of possession of drug paraphernalia, and having attained the
-2-
status of being an habitual felon. The case came on for trial on
all charges except the habitual felon status on 3 June 2013.
Guilty verdicts were rendered on these charges the following
day. The case for the charge of being an habitual felon came on
for trial on 5 June 2013, and a guilty verdict was rendered the
same day. The State’s evidence tended to show the following:
On 15 September 2010, Corporal Hashon Geddings of the
Winston-Salem Police Department received a Crime Stoppers tip
regarding possible criminal activity at 419 Byerly Street. After
receiving the Crime Stoppers tip, Corporal Geddings did some
research to get “background information on the place,” including
“pull[ing] up history on [the person accused], [to] see what
. . . they’ve been involved in” and “pull[ing] up the map in the
area . . . where the location is . . . [to] try to get eyes on
the location.” He also conducted surveillance and attempted to
perform a “knock and talk,”1 but received no answer. On 22
November 2010, Corporal Geddings and two other officers went to
the Byerly Street residence to conduct surveillance. They
observed a green car leave the house with one female occupant.
Thinking the home’s owner, later identified as Defendant, might
1
Corporal Geddings testified that a “knock and talk” is an
“attempt to make contact with the residents to . . . prove or
disprove the allegations” in a tip.
-3-
still be inside, Corporal Geddings and the other officers
approached the residence to attempt another “knock and talk.” As
he walked to the door, Corporal Geddings heard a dog bark to the
right of the residence. He also smelled marijuana burning and
noticed someone looking out a window. Corporal Geddings knocked
on the front door, but no one answered.
Corporal Geddings left the residence. He and the other
officers continued to conduct surveillance in an unmarked car
from a “covert location.” While surveilling the residence,
Corporal Geddings began to type an application for a search
warrant. At the same time, a car pulled into the driveway.
Corporal Geddings and the two other officers waited a few
seconds to allow the driver to approach the home. They then
pulled into the driveway behind the car. The driver, Nekole
Friend, approached the home, and Defendant opened the front
door. While Defendant and Friend were standing at the door,
Corporal Geddings flashed his flashlight in their direction.
Defendant closed the door, and Friend began to walk away.
Corporal Geddings approached the door, and Defendant came back
out. Defendant stood between Corporal Geddings and the front
door of the residence. Corporal Geddings was unsure if there
were other people within the residence. Based on this
-4-
uncertainty and the smell of burning marijuana, Corporal
Geddings and the other officers detained Defendant. All of the
officers then approached the residence to begin a protective
sweep of the home “to ensure the[ir] safety . . . [and] to make
sure no one ha[d] weapons.” As the officers entered the
residence, Defendant yelled out that they could not go into his
home without a warrant. Defendant did not object to this
testimony at trial.
While executing the sweep, Corporal Geddings and the other
officers smelled a strong odor of burnt marijuana and observed
burnt marijuana cigarettes and drug paraphernalia. Following the
sweep, the officers detained Defendant inside the residence for
approximately two hours while Corporal Geddings and another
officer left the residence to obtain a search warrant from the
magistrate.
When Corporal Geddings and the other officer returned with
the warrant, an officer read it aloud to Defendant. After the
officer read the search warrant, Defendant began to speak to the
officers. Corporal Geddings interrupted Defendant and read him
his Miranda rights. Defendant waived his Miranda rights,
continued speaking, and told Corporal Geddings that he did not
answer the door when Corporal Geddings initially knocked because
-5-
he was smoking marijuana. Defendant also informed Corporal
Geddings that there was marijuana on top of the refrigerator and
admitted to having “paraphernalia” in the house. He denied
possession of any other contraband.
Approximately “six or seven” officers,2 including Corporal
Geddings, participated in the search of the residence. The
officers’ search revealed a gun, plastic bags, a razor with
white powder residue, mail containing Defendant’s name and the
419 Byerly Street address, and an off-white substance, later
confirmed to be “cocaine base.” “When [the officers] concluded
[their] search,” Corporal Geddings arrested Defendant and, with
another officer, drove him to the magistrate’s office. During
the ride, Defendant again began to speak with Corporal Geddings
and the other officer. Corporal Geddings reminded Defendant of
his Miranda rights. Defendant acknowledged his rights and kept
talking. Defendant admitted that he purchased “the crack that
was located in the house” and said that he was selling it to
support his family. Upon arrival at the magistrate’s office,
2
Corporals Geddings and Mike Ognosky both testified that
approximately six or seven officers participated in the search.
However, Officer B.E. Wenzel testified that approximately four
or five officers participated.
-6-
Defendant signed an “adult warning waiver”3 at the request of
Corporal Geddings.
Several months after the search of the residence, Amanda
Motsinger, a forensic scientist working at the North Carolina
State Crime Lab, tested samples of the substances found at the
home. She confirmed that the samples were marijuana and cocaine
base.4
Defendant did not offer any evidence at trial. During
closing arguments, the prosecutor asserted that Defendant’s
refusal to consent to the search without a warrant was evidence
that he was hiding something. Defendant was found guilty by a
jury on 4 June 2013 of possession of a firearm by a felon,
possession with intent to sell and deliver cocaine, possession
of marijuana up to one-half of an ounce, and possession of drug
paraphernalia. Defendant was found guilty by a jury of attaining
3
The testimony of Corporal Geddings indicated that the adult
warning waiver is a form to document that Defendant was informed
of his Miranda rights. Corporal Geddings read the form aloud to
Defendant. Defendant initialed a number of questions, and the
form was signed by Defendant, Corporal Geddings, and one other
officer as a witness.
4
Motsinger tested and confirmed samples of “cocaine base”
weighing a total of 27.5 grams and a sample of marijuana
weighing 0.5 grams. She further testified that, according to the
State Crime Lab’s regular procedure, additional samples were not
tested because the size of the samples was not sufficient to
change the criminal charges against Defendant.
-7-
the status of habitual felon on 5 June 2013. Judgments were
entered on 5 June 2013. The trial court sentenced Defendant to
consecutive terms of 127 to 162 months in prison. Defendant gave
notice of appeal in open court.
Discussion
On appeal, Defendant argues that the trial court erred by
(1) allowing the testimony of Corporal Geddings that Defendant
exercised his constitutional right to refuse a warrantless
search of his home and (2) failing to intervene ex mero motu
when the prosecutor argued that Defendant’s statement to the
officers who were entering his home to perform the protective
sweep was evidence of guilt. We hold that the trial court did
not plainly err in allowing the testimony of Corporal Geddings
and committed no error in declining to intervene ex mero motu
during the prosecutor’s closing argument.
I. Testimony of Defendant’s Refusal to Consent to the
Search of His Home
At trial, the State presented testimony that Defendant
yelled at the officers and told them they could not go into his
home without a warrant. Defendant argues that the admission of
this testimony was a violation of his constitutional rights.
Defendant concedes that he did not object at trial, but contends
that the appropriate standard of review is harmless error.
-8-
Alternatively, Defendant argues that the admission of the
testimony of Corporal Geddings should be reviewed for plain
error. We review the trial court’s decision for plain error and
conclude that the trial court did not plainly err by allowing
the testimony of Corporal Geddings.
“It is impermissible [in certain circumstances] for the
trial court to admit testimony relating to a defendant’s
exercise of his [constitutional] right . . . .” State v. Walker,
167 N.C. App. 110, 130, 605 S.E.2d 647, 660 (2004), vacated in
part on other grounds, 361 N.C. 160, 695 S.E.2d 750 (2006).
Where the defendant fails to object to the testimony at trial,
however, “review is limited to plain error.” Id. Here, Defendant
admits that he did not object to the testimony that he refused a
warrantless search of his home. Therefore, the proper standard
of review is plain error. See id.Defendant contends that the trial court erred in allowing
the testimony of Corporal Geddings that Defendant yelled at the
officers because he was exercising his constitutional rights to
be free from an unreasonable search. In response, the State
asserts that Defendant has not demonstrated how the admission of
the testimony of Corporal Geddings constitutes plain error. We
agree.
-9-
Plain error exists when, “after reviewing the entire
record, it can be said the claimed error is a fundamental error,
something so basic, so prejudicial, so lacking in its elements
that justice cannot have been done . . . .” State v. Alexander,
337 N.C. 182, 196, 446 S.E.2d 83, 91 (1994) (citations, internal
quotation marks, and emphasis omitted). Under the plain error
standard, this Court “must be convinced that absent the error,
the jury probably would have reached a different verdict.”
Walker, 167 N.C. App. at 130, 605 S.E.2d at 661.
In this case, police found Defendant at the house at 419
Byerly Street where marijuana, cocaine, drug paraphernalia, and
a firearm were also found. Defendant informed police of the
location of the drugs inside the residence and admitted to
purchasing the cocaine with the intent to sell it. Mail was
found at the residence showing Defendant’s name and the 419
Byerly Street address. Together, this constitutes overwhelming
evidence of Defendant’s guilt. As a result, the jury would not
have returned a different verdict even if the testimony
regarding Defendant’s statement had been excluded. Accordingly,
the trial court did not commit plain error by admitting the
testimony of Corporal Geddings regarding Defendant’s refusal to
consent to a warrantless search of his home.
-10-
II. The Prosecutor’s Closing Argument
Second, Defendant contends that the prosecutor’s closing
argument was grossly improper because the prosecutor explicitly
stated that Defendant’s refusal to consent to a warrantless
search of his home was evidence of his guilt and because the
argument relied on an improper statement of the facts. We are
unpersuaded.
Defendant admits that he failed to object to the
prosecutor’s closing argument at trial. Therefore, Defendant
concedes that he must show that the State’s argument was “so
grossly improper that the trial court abused its discretion by
failing to intervene ex mero motu.” State v. Roache, 358 N.C.
243, 296-97, 595 S.E.2d 381, 415 (2004). To meet this standard,
Defendant must establish that the State’s argument “infected the
trial with fundamental unfairness.” Id. at 297, 595 S.E.2d at
416.
“[A prosecutor] is permitted to argue the facts which have
been presented[] as well as any reasonable inferences
therefrom . . . .” State v. Waring, 364 N.C. 443, 500, 701
S.E.2d 615, 651 (2010) (holding that the prosecutor made a
reasonable inference that the defendant’s shoe made a mark on
the victim where the defendant’s statement that he stomped the
-11-
victim and the mark on the victim’s head were introduced as
evidence), cert. denied, __ U.S. __, 181 L. Ed. 2d 53 (2011).
Some improper comments made during a closing argument do not
render an argument grossly improper in the face of overwhelming
evidence of the defendant’s guilt. See, e.g., Roache, 358 N.C.
at 297-98, 595 S.E.2d at 416 (holding that the prosecutor’s
description of the defendant and his accomplice as wild dogs
“high on the taste of blood and power over their victims” was
improper, but not grossly improper in the face of overwhelming
evidence of the defendant’s guilt); State v. Mitchell, 353 N.C.
309, 326, 543 S.E.2d 830, 841 (2001) (holding that the
prosecutor’s reference to the defendant’s failure to testify may
have been error, but was harmless beyond a reasonable doubt in
light of overwhelming evidence of the defendant’s guilt). The
brevity of challenged remarks relative to the entire closing
argument and the context in which the remarks are made are both
factors to be considered in determining whether improper
arguments rise to the level of gross impropriety. See, e.g.,
State v. Taylor, 362 N.C. 514, 537, 669 S.E.2d 239, 259-60
(2008), cert. denied, 558 U.S. 851, 175 L. Ed. 2d 84 (2009);
State v. Dean, 196 N.C. App. 180, 199, 674 S.E.2d 453, 466,
-12-
appeal dismissed and disc. review denied, 363 N.C. 376, 679
S.E.2d 139 (2009).
Some examples of behavior that render a closing argument
grossly improper are substantial name-calling, direct
contradiction and insulting of the defense’s expert witnesses,
arguments based on personal opinion, and allusion to crimes not
in evidence. See State v. Jones, 355 N.C. 117, 133-34, 558
S.E.2d 97, 107-08 (2002) (holding that the prosecutor made a
grossly improper closing argument when he repeatedly degraded
the defendant, including one description of the defendant as
“lower than the dirt on a snake’s belly”); State v. Sanderson,
336 N.C. 1, 15-19, 442 S.E.2d 33, 41-44 (1994) (holding that the
prosecutor made a grossly improper closing argument when he
disparaged defense expert testimony and referred repeatedly to
an unrelated murder not in evidence); State v. Smith, 279 N.C.
163, 165-66, 181 S.E.2d 458, 459-60 (1971) (holding that the
prosecutor made a grossly improper closing argument when he
described the defendant as “lower than the bone belly of a cur
dog,” encouraged the jury to disregard character witnesses, and
repeatedly argued his own personal opinion of the defendant’s
guilt).
A. The Prosecutor’s Remarks Regarding Defendant’s
Refusal to Consent to the Search
-13-
North Carolina law bars the use of a defendant’s exercise
of his or her constitutional right to be free from an
unreasonable search to imply guilt. State v. Jennings, 333 N.C.
579, 604-05, 430 S.E.2d 188, 200 (observing that it was improper
to allow two police officers to testify that the defendant had
refused to allow a search of her hotel room and her car before
the officers obtained a search warrant, but holding that the
testimony was harmless beyond a reasonable doubt), cert. denied,
510 U.S. 1028, 126 L. Ed. 2d 602 (1993). In this case, the
prosecutor stated in her closing argument that Defendant’s
refusal to consent to the search of his home was evidence that
he was hiding something. Specifically, the prosecutor argued:
Why is he being so guarded about his
residence? And when they do go in the house,
he says, “You can’t go into my home without
a search warrant.” Why is he being so
protective? Why is he guarding this house?
The [S]tate would contend to you the reason
he’s guarding this house, the reason he
didn’t come to the door, the reason there’s
a chain-link fence with a “no trespassing”
sign on there, the reason for all of these
things, he was hiding something, and the
officers found it.
This argument is clearly improper because it states that
Defendant’s refusal to consent to a search of his home is
evidence of his guilt. Id.-14-
The prosecutor continued her argument as follows:
And how do we know [D]efendant lived there?
Well, number 1, he had a guard dog. Number
2, he himself stood on the front porch and
said, “You can’t come into my home,” where
he lived. [He was] the only person found
inside the residence when they search[ed]
it. And when the officers did their search
of the home, they found — as you all have
seen — this mail from the tax collector, and
it is addressed to — and I’m just gonna read
it exactly — Davis, Daniel Darnell, 419
Byerly Road, here in Winston-Salem. That’s
how we know [D]efendant lived there. That’s
how we know this was his residence.
. . . .
And you heard no other evidence — no one
else came in and testified and said, “This
is my gun.” No one else came in and said,
“Well, this is my cocaine.” No one else even
came in and said they live at that residence
or they own that residence. You have heard
none of that evidence. The only evidence
that you’ve heard is that [D]efendant was
out of the house, it was his residence, he
lived there, he was there when it was
searched. He said, “You cannot come into my
home.”
Neither of the above arguments were used to imply
Defendant’s guilt based on his refusal to consent to a search of
his home. Even if these statements were somehow improper,
however, all three remarks by the prosecutor, taken together, do
not rise to the level of grossly improper argument. The
prosecutor did not engage in substantial name-calling,
-15-
disparagement of expert witnesses, or allusion to prior crimes
not in evidence. Further, in all three instances, Defendant’s
refusal of consent was only one of several factors in the
argument the prosecutor was making.
This case is analogous to Taylor, where the improper
comment made by the prosecutor was a “small part of an otherwise
proper argument.” 362 N.C. at 536-37, 669 S.E.2d at 259-60. In
Taylor, the prosecutor inserted his own opinion into his closing
argument, saying, “I saw some of you when this statement was
read and I know that you didn’t believe it, just like I don’t.”
Id. at 536, 669 S.E.2d at 259. The prosecutor made this remark
in the context of a larger argument that the defendant’s
testimony was not credible because he changed his story several
times. Id. at 536-37, 669 S.E.2d at 259. On appeal, our Supreme
Court concluded that the prosecutor’s remark was not proper, but
did not rise to the level of gross impropriety because it was a
brief remark relative to the entire closing argument and it was
made in the context of an “otherwise proper argument.” Id. at
536-37, 669 S.E.2d at 259-60.
Here, in each instance where the prosecutor remarked on
Defendant’s refusal to consent to a warrantless search of his
home, it was a brief comment in the context of an otherwise
-16-
proper argument. Although improper, the prosecutor’s inclusion
of Defendant’s refusal to consent among a list of factors
implying he was hiding something in the house was part of a
larger, proper argument that Defendant’s behavior was
suspicious. When the prosecutor brought up Defendant’s refusal
to consent later in her argument, it was in the context of
reciting the evidence supporting the State’s proper argument
that Defendant was in possession of the home and its contents,
not as an implication of guilt. Further, Defendant freely
admitted, after receiving Miranda warnings, that he had
marijuana in the house, that he purchased the cocaine, and that
he intended to sell the cocaine. Defendant was found at the
home, referred to the residence as his, and the officers found
mail inside the home with his name and the address of the
residence on it. As we have already held, this constitutes
overwhelming evidence of Defendant’s guilt.
In light of the brevity of the prosecutor’s improper
remarks relative to the entire closing argument, the context of
the remarks as part of otherwise proper arguments, and the
overwhelming evidence of Defendant’s guilt, the improper remarks
made by the prosecutor in her closing argument were not so
grossly improper as to “render the conviction fundamentally
-17-
unfair.” Roache, 358 N.C at 298, 595 S.E.2d at 416. Accordingly,
the trial court did not err by declining to intervene ex mero
motu.
B. The Prosecutor’s Statement of the Facts
Defendant also argues that the prosecutor’s closing
argument was grossly improper because she made a statement
unsupported by the evidence when she referred to a “guard dog”
at the residence. Specifically, Defendant points to the
following statement by the Prosecutor: “And how do we know
[D]efendant lived there? Well, number 1, he had a guard dog.”
While this statement is incorrect — Corporal Geddings testified
that he heard a dog bark when he approached the residence, not
that the dog was a guard dog — it is not grossly improper.
Defendant cites Sanderson, supra, for the proposition that
“injecting nonexistent facts [into the closing argument] is
grossly improper.” In Sanderson, however, the prosecutor
directly contradicted facts introduced into evidence, pronounced
expert testimony to be “a bunch of hogwash,” and falsely implied
that the defendant was a suspect in a previous murder not in
evidence. 336 N.C. at 16, 442 S.E.2d at 42 (internal quotation
marks omitted). Our Supreme Court held that such behavior was
grossly improper because it deprived the defendant of “that
-18-
fundamental fairness essential to the very concept of justice.”
Id. at 20, 442 S.E.2d at 44 (internal quotation marks omitted).
Sanderson is distinguishable from this case. Contrary to
the prosecutor in Sanderson, the prosecutor in this case did not
introduce any facts that were not in evidence. Instead, she made
an inference that the dog that barked at Corporal Geddings was
guarding the residence. This inference did not deprive Defendant
of “fundamental fairness.” See id. Therefore, the prosecutor’s
statement that Defendant had a guard dog was not grossly
improper, and the trial court did not err by declining to
intervene ex mero motu.
We find no error in the trial court’s decision not to
intervene ex mero motu during the prosecutor’s closing argument.
Accordingly, we hold that Defendant received a fair trial free
from prejudicial error.
NO ERROR.
Judges STROUD and MCCULLOUGH concur.
Report per Rule 30(e).