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An unpublished opinion of the North Carolina Court of Appeals does not constitute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 permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-952
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 09 CRS 240640
MARCO SANTAINE DAVIS
Appeal by defendant from judgments entered 1 February 2013
by Judge Robert T. Sumner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 22 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Sonya Calloway-Durham, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-
appellant.
CALABRIA, Judge.
Marco Santaine Davis (“defendant”) appeals from judgments
entered upon jury verdicts finding him guilty of first degree
murder and conspiracy to commit first degree murder. We find no
error.
On 10 August 2009, the body of Palo Childress, a/k/a
“Suicide,” (“Childress”) was discovered on the grounds of the
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Shamrock Garden Apartments in Charlotte, North Carolina.
Childress died from a contact gunshot wound to his head.
Defendant was the highest ranking member of the “7-4” sect
of the Folk Nation gang. On 9 August 2009, defendant and
Childress, who was a member of a different gang, were present
with several others at the apartment of April Reed (“Reed”). At
some point, Childress, defendant, and Warren Avery (“Avery”)
left to go to the store. Only defendant and Avery returned.
Later that night, defendant and four of his fellow gang
members walked to the location of Childress’s body. Defendant
then ordered one of his gang subordinates, Kierra Thompson
(“Thompson”), to search the body for money, and she retrieved
Childress’s wallet. At a subsequent gang meeting, defendant
reminded everyone of the gang’s code of silence and informed
them that Childress was dead. He also promoted Avery and
Thompson to higher ranking positions within the gang because
Avery had carried out Childress’s murder at defendant’s
direction and Thompson had gone through Childress’s pockets.
During the course of their investigation, law enforcement
obtained a buccal swab from defendant. A cigarette butt with
DNA which matched defendant’s DNA from the buccal swab was found
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near Childress’s body. Defendant was arrested and indicted for
Childress’s murder and for conspiracy to commit the murder.
Beginning 22 January 2013, defendant was tried by a jury
in Mecklenburg County Superior Court. During the trial,
defendant called fellow gang member Latia Landy (“Landy”) as a
witness. Landy testified that she was with defendant at Reed’s
apartment on the night of the murder. At some point that
evening, Landy, defendant and others walked to the location of
Childress’s body. Defense counsel then attempted to ask Landy
whether she had seen defendant leave the apartment prior to when
they all walked to Childress’s body. The State objected because
defendant had not given any notice of an alibi defense. After a
brief voir dire, the trial court sustained the objection.
On 1 February 2013, the jury returned verdicts finding
defendant guilty of first degree murder and conspiracy to commit
first degree murder. Defendant was sentenced to life
imprisonment without the possibility of parole for the murder
conviction and to a consecutive sentence of a minimum of 282
months to a maximum of 348 months in the North Carolina Division
of Adult Correction for the conspiracy conviction. Defendant
appeals.
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Defendant’s sole argument on appeal is that the trial court
erred when it sustained the State’s objection to Landy’s
testimony regarding whether she had seen defendant leave the
apartment. Defendant contends that the trial court’s alleged
error deprived defendant of his constitutional right to present
a complete defense. We disagree.
Pursuant to N.C. Gen. Stat. § 15A-905,
If the court grants any relief sought by the
defendant under G.S. 15A-903, or if
disclosure is voluntarily made by the State
pursuant to G.S. 15A-902(a), the court must,
upon motion of the State, order the
defendant to:
(1) Give notice to the State of the intent
to offer at trial a defense of alibi . . . .
. . .
a. As to the defense of alibi, the
court may order, upon motion by
the State, the disclosure of
the identity of alibi witnesses
no later than two weeks before
trial. If disclosure is
ordered, upon a showing of good
cause, the court shall order
the State to disclose any
rebuttal alibi witnesses no
later than one week before
trial. If the parties agree,
the court may specify different
time periods for this exchange
so long as the exchange occurs
within a reasonable time prior
to trial.
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N.C. Gen. Stat. § 15A-905(c) (2013). In the instant case, the
trial court entered an order pursuant to this statute requiring
defendant to “give notice to the State of his intent to offer at
trial a defense of alibi . . . no later than January 14, 2013”
and to “disclose the identity of alibi witnesses no later than
January 14, 2013.” However, defendant never provided the State
with either the required notice of affirmative defense or
identified any potential alibi witnesses.
Nonetheless, during his direct examination of Landy,
defense counsel asked the following question: “[w]hile you were
[at Reed’s apartment] do you recall [defendant] leaving at any
point [the evening of the murder]?” The State objected, arguing
that the question and Landy’s likely answer would raise the
possibility of an alibi defense. The trial court permitted
defense counsel to conduct a brief voir dire where he again
asked Landy, “[d]id you see [defendant] leave the apartment?”
and Landy responded, “no.”
Defense counsel argued that his question was proper because
I am not requesting an affirmative defense
of alibi. I’m asking her about her
observations on that day. We're not going to
be asking the judge, the Court, to give an
instruction on alibi. I’m asking her to
testify about what her observations are.
. . .
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[T]hey can do what they want to on cross-
examination. He has a constitutional right
to present his defense. He’s called a
defense witness, they had her statement,
they’ve always had her statement, they
subpoenaed her, we have called her. And he
has a right to put up his defense.
After considering defense counsel’s argument, the trial court
agreed with the State that the “net effect” of counsel’s
question to Landy would be to put an alibi defense before the
jury and thus, sustained the objection.
On appeal, defendant argues that the trial court’s ruling
was erroneous because “precluding the defense from offering
Landy’s testimony about Defendant Davis’ whereabouts at the time
of the murder was a clear violation of his state and
constitutional right to present a defense,” specifically an
alibi defense. However, as noted above, defendant’s trial
counsel explicitly argued to the trial court that his question
to Landy was not for purposes of establishing an alibi.
Instead, defense counsel stated that he was simply “asking her
to testify about what her observations are.” It is not entirely
clear from the record what purpose Landy’s observations of
defendant’s whereabouts would serve other than to establish an
alibi for defendant at the time of Childress’s death, but
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defense counsel obviously believed it served some additional
purpose.
Since defendant’s trial counsel disclaimed any use of
Landy’s testimony to create an alibi defense, he cannot now
argue on appeal that the trial court’s preclusion of her
testimony deprived him of the right to present that defense. It
is well established that “where a theory argued on appeal was
not raised before the trial court, the law does not permit
parties to swap horses between courts in order to get a better
mount in the [Appellate] Court.” State v. Augustine, 359 N.C.
709, 721, 616 S.E.2d 515, 525 (2005) (internal quotations and
citation omitted). Accordingly, defendant’s argument is
overruled.
Defendant received a fair trial, free from error.
No error.
Judges BRYANT and GEER concur.
Report per Rule 30(e).