An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                           -2-
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
                                              -3-
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.
                                  -4-
    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.
                                       -5-
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.

           . . .
                                               -6-


               [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
                                         -7-
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).
