State v. Davis

656 S.E.2d 632, 188 N.C. App. 735, 2008 N.C. App. LEXIS 278
CourtCourt of Appeals of North Carolina
DecidedFebruary 19, 2008
DocketNo. COA06-1707.
StatusPublished
Cited by6 cases

This text of 656 S.E.2d 632 (State v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Davis, 656 S.E.2d 632, 188 N.C. App. 735, 2008 N.C. App. LEXIS 278 (N.C. Ct. App. 2008).

Opinion

GEER, Judge.

Defendant Temetria Shatorie Davis appeals from her conviction of conspiracy to traffic in cocaine by possession. Defendant contends first that she was deprived of a unanimous jury verdict when the trial court instructed the jury on conspiracy to commit trafficking in cocaine without specifying that the trafficking occurred through possession. Because the trial court did not give any disjunctive instruction as to defendant and, in any event, the unanimity cases relied upon by defendant do not apply to a charge of conspiracy to traffic in cocaine, we hold that the trial court's instruction did not create a risk of a non-unanimous verdict.

Defendant also argues that the sentencing entrapment defense, see State v. Foster, 162 N.C.App. 665, 671-72, 592 S.E.2d 259, 264, aff'd by equally divided court, 359 N.C. 179, 604 S.E.2d 913 (2004), entitled her to an instruction on the lesser included offense of conspiracy to commit possession of cocaine. Defendant, however, neither requested an instruction on the sentencing entrapment defense at trial nor assigned error on appeal to the court's failure to give such an instruction. Thus, the issue of sentencing entrapment is not before us. Since the evidence at trial supported only an instruction on conspiracy to traffic in cocaine, we hold that the trial court properly refused defendant's request for an instruction on conspiracy to commit possession of cocaine.

Facts

In June 2005, Jeffrey Gamble was living with defendant's sister. While defendant was visiting Gamble and her sister on 23 June 2005, Gamble received several phone calls from Noy Sykeo. Gamble had known *634Sykeo for six or seven years, and Sykeo had been one of Gamble's drug suppliers. Sykeo asked Gamble, who owed Sykeo $500.00, if he could help Sykeo obtain two ounces of cocaine. Gamble in turn asked defendant if she knew someone who would have two ounces of cocaine. Defendant agreed to help and called Saint Griffin who was willing to supply the cocaine.

Gamble was unaware that Sykeo had agreed to work with the police as a confidential informant because of pending felony charges. As part of this work, Detective Marshburn of the Raleigh Police Department had asked Sykeo to purchase a "trafficking amount" of cocaine, which equaled at least one ounce.

Gamble called Sykeo back, told Sykeo that he had located the cocaine, and asked Sykeo to pick up Gamble and defendant. Gamble, Sykeo, and defendant were supposed to meet Griffin and his partner, Maurice Teasley, in a Wendy's parking lot. On the way, at approximately 1:00 a.m., they met Detective Marshburn, who was working undercover, in a Papa Lou's restaurant parking lot. Defendant told Marshburn that they were going to meet the person with the cocaine at the Wendy's parking lot.

Detective Marshburn, driving a separate car, followed Sykeo, Gamble, and defendant to a Hardee's parking lot. Defendant told Marshburn that the drug supplier was in the Wendy's parking lot across the street, and the supplier wanted defendant to bring him the money. Marshburn refused to give them the money for the drugs until either he or Sykeo had seen the cocaine. Gamble got in the car with Detective Marshburn while Sykeo and defendant drove across the street to the Wendy's parking lot.

After a few minutes, Sykeo returned to the Hardee's parking lot without defendant. He reported that he had seen some cocaine, but it did not look like the full amount he had requested. Marshburn called off the deal and left the parking lot. Gamble got back into Sykeo's car, and they drove back across the street to the Wendy's parking lot. Griffin and Teasley were standing outside a car. As Gamble rolled down his window to speak to Griffin, police officers yelled "Freeze!" Gamble, Griffin, Teasley, and defendant were all arrested. Officers seized 53 grams of powder cocaine from Griffin.

On 6 February 2006, defendant was indicted on one count of conspiracy to traffic in cocaine by possession of 28 grams or more of cocaine, but less than 200 grams of cocaine. Defendant and Teasley were tried together beginning on 16 May 2006. The jury found defendant guilty of conspiracy to traffic in cocaine by possession on 17 May 2006, and Judge Orlando F. Hudson, Jr. sentenced defendant to a presumptive range sentence of 35 to 42 months imprisonment. Defendant timely appealed to this Court.

I

Defendant first contends that the trial court erred when instructing the jury as to the sole charge brought against defendant: conspiracy to commit trafficking in cocaine by possession. Defendant argues that because the trial court's instruction referred only to "conspiracy to commit trafficking in cocaine" without specifying "by possession," it gave rise to the risk of a non-unanimous verdict. We disagree.

Defendant and Teasley were tried in the same, proceeding. After giving several standard jury instructions, the trial court instructed the jury on Teasley's charge of trafficking in cocaine by transportation:

Members of the jury, if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant Maurice Teasley, acting either by himself or acting together with Saint Griffin, and that the defendant Maurice Teasley knowingly transported cocaine from one place to another, and that the amount transported was 28 grams or more but less than 200 grams, then it would be your duty to return a verdict of guilty of this offense.

However, if you do not so find, or if you have a reasonable doubt, it would be your duty to return a verdict of not guilty.

Members of the jury, the defendant Maurice Teasley has been charged with feloniously conspiring to commit trafficking in cocaine by possessing 28 grams or more but less than 200 grams of cocaine.

*635The court went on to instruct the jury on the elements of conspiring to commit trafficking in cocaine by possession:

First, that the defendant Maurice Teasley and Saint Griffin entered into an agreement.

Second, that the agreement was to commit trafficking in cocaine by possessing 28 grams or more but less than 200 grams of cocaine.

....

And third, that the defendant and Saint Griffin intended that the agreement be carried out at the time it was made.

The court concluded the instruction on the conspiracy charge with respect to Teasley by stating:

Members of the jury, if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant agreed with at least one person, and that the defendant and that person intended at the time of the agreement, that person being Saint James [sic], that it was made-that it would be carried out, it would be your duty to return a verdict of guilty.

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Cite This Page — Counsel Stack

Bluebook (online)
656 S.E.2d 632, 188 N.C. App. 735, 2008 N.C. App. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davis-ncctapp-2008.