An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
