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					No. COA03-1718                                       DISTRICT EIGHTEEN

                NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA         )
                                     )
    V.                          )        From Guilford
                                     )
BRANDON BUFORD DAVIS                 )

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                  DEFENDANT-APPELLANT’S BRIEF
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                       QUESTIONS PRESENTED

I.  WAS THE EVIDENCE INSUFFICIENT TO ESTABLISH EVERY
ELEMENT OF FIRST DEGREE MURDER?

II. DID THE TRIAL COURT ERR BY DENYING THE DEFENDANT’S
REQUEST FOR APPOINTMENT OF ASSISTANT COUNSEL?

III. DID THE TRIAL COURT ERR BY DENYING THE DEFENDANT’S
MOTION FOR PRODUCTION OF EXCULPATORY EVIDENCE?

IV. DID THE TRIAL COURT ERR BY OVERRULING THE DEFENDANT’S
OBJECTION AND ALLOWING THE STATE TO INTRODUCE EVIDENCE THAT
THE DEFENDANT WAS ARRESTED IN POSSESSION OF LARGE QUANTITIES
OF DRUGS AND MONEY?
                                         2

                          STATEMENT OF THE CASE

      Brandon Davis was tried at the August 5, 2002, criminal session of Superior

Court for Guilford County, the Honorable Peter M. McHugh, presiding. Mr. Davis

was capitally tried on a bill of indictment dated June 11, 2001, charging him with

murder. On August 13, 2002, the jury returned a verdict finding the defendant guilty

of first degree murder only on the basis of the felony-murder rule. On August 14,

2002, the jury returned a sentencing verdict recommending a sentence of life without

parole. The trial court imposed a sentence of life imprisonment without parole. The

defendant gave written notice of appeal following the imposition of judgment on

August 14, 2002.

           STATEMENT OF GROUNDS FOR APPELLATE REVIEW

      The defendant appeals his conviction upon his plea of not guilty. Appellate

review is pursuant to N.C.G.S. §§7A-27(b) and 15A-1444(a).

                         STATEMENT OF THE FACTS

A.    State’s Evidence Regarding the Killing of the Decedent.

      Francisco Solis was shot and killed while sitting behind the wheel of a van

parked in the parking lot to the Cedar Fork Apartments in Greensboro. The shooting

occurred at about midnight on February 2, 2001. Residents of the apartment complex

who testified include James Moore, Lavonda Donell, Tonya Fennell and Misty Knight.
                                          3

      Mr. Moore lives at 2004 Cedar Fork Drive, Apartment C. He had gone to bed

about 15 or 20 minutes earlier, and was just falling asleep when he heard some loud

noises. He first checked to make sure no one was breaking into his apartment. He then

looked out into the parking lot and saw the flashers blinking on a parked van. Mr.

Moore was familiar with the cars regularly parked in the lot by the residents, but did

not recognize this van. (Tpp. 226-31). He did not see anyone present outside in the

lot. (Tp. 232). He approached the van and saw a man slumped over in the driver’s

seat, not moving and non-responsive to his question “are you okay?” Mr. Moore could

see glass on the ground and bullet holes in the next car. Realizing the man was dead,

all he could do was to call the police. (Tpp. 232-33, 236).

      Ms. Donnell lives at 2004-E Cedar Fork. She was in her bedroom watching

television around midnight on the night in question when she heard about 5 or 6 shots.

Her bedroom faces the parking lot. The lot was sufficiently lit for good visibility.

(Tpp. 275-79). Her phone rang and it was her sister, who lives across the parking lot.

(Tp. 279-80). As a result of her sister’s call, Ms. Donnell looked out her bedroom

window and saw a black male wiping down the side of the van. He was dressed in a

white T-shirt and dark bottoms, and appeared to have a towel he was using to wipe off

the van. (Tp. 281). She described the man as about five-ten and in his early twenties.

(Tp. 283). As Ms. Donnell watched, the man continued to wipe down the passenger
                                           4

side door of the van for another 30 seconds. The door was closed. (Tp. 284). After he

stopped wiping the van, the man ran directly away from Ms. Donnell, towards the

opposite building. He initially went towards her left, then stopped and ran around to

the right and behind the laundry room. After the man ran off, she saw Mr. Moore

approach the van. She opened her door after the police arrived, and told the police

what she had seen. (Tpp. 285-88).

      On cross-examination, Ms. Donnell testified that she told the police that the man

she saw had a close haircut, and that is what she saw from her view. (Tpp. 294-95).

The description “Afro hairstyle, slight beard, mustache” does not fit the man she saw.

(Tp. 295). The white T-shirt the man was wearing was a tank-top. Other than the

towel he used to wipe the van, she did not see the man carrying anything, and

specifically did not see a jacket. (Tp. 296).

      Ms. Donnell’s sister, Tonya Fennell, lives at 2006-B Cedar Fork, in the building

across the parking lot from her sister. She was in her bedroom at the back of the

building, away from the parking lot, when she heard 5 or 6 loud popping sounds.

(Tpp. 298-300). She looked out her bedroom window, which faces Isler Street, and

saw nothing unusual and no vehicle traffic. She then looked out her living room

window, facing the parking lot, and saw the van with its flashers blinking. She called

her sister to ask what was up with the van. (Tpp. 301-02). While on the phone with
                                           5

her sister, she also saw the man wiping down the side of the van. When he started

running towards her apartment, she dropped her blinds because she did not want him to

see her looking out the window. Her sister then told her the man changed directions

and ran behind the laundry building toward Isler Street. (Tpp. 303-04, 307). As she

looked out, the van was somewhat to her left, with the front of the van partly obscuring

her view of the man. All she could see was that he was wearing a white top. As he ran

toward her, he got halfway to her apartment before she dropped her blinds. She was

able to see that he was carrying something white, which she assumed was the towel he

had been using to wipe down the van. She described the man she saw as a black man

between five-eight and five-ten with a slight build. (Tpp. 304-06). A few minutes

after her sister told her the man ran off, she heard a door slam and a car speed off from

Isler Street. (Tp. 309).

      On cross-examination, Ms. Fennell agreed with her sister’s testimony that the

white T-shirt the man was wearing was sleeveless. She also did not see the man with

any jacket, and agreed that he was not carrying a gun or any package, but only the

white cloth. (Tpp. 315-16). While he was running towards her, she did not notice any

beard or mustache. (Tp. 317). She told the police that the man was five-eight. (Tp.

320). She agreed that the man did not have an afro hairstyle and that the description

“afro hairstyle, slight beard, mustache” did not fit him. (Tpp. 320-21).
                                           6

      Misty Knight testified that she had seen the van earlier in the night parked in

front of her apartment, 2006-A Cedar Fork, while going back and forth between her

apartment and the laundry room. Around midnight, she put a load of clothes in the

dryer and went back to her apartment for quarters, and saw that the van had moved

further down the lot to where the other witnesses saw it after the shooting. (Tpp. 323-

30). While she was still in her apartment, Ms. Knight heard the shots. By the time she

and her roommate looked out their window, they saw Mr. Moore in the parking lot, but

did not see anyone else. (Tpp. 330-34). Shortly afterwards, she heard a voice and then

heard a door slam and a car speed off from Isler Street. (Tp. 335). She acknowledged

that Isler Street is close enough behind her apartment that someone driving by could

have heard the shots, stopped to investigate and then driven off. She could not say that

the car actually had anything to do with the shooting. (Tpp. 339-41).

      Jeddy Rodriguez identified the decedent as her brother, Francisco Solis. The

van belonged to her. She had loaned it to her brother that evening. He dropped her,

her mother and another brother off at the mill where they all worked third shift. He

was supposed to pick them up the next morning, but she was called to the Police

Department at around 4:00 a.m. (Tpp. 454-59). She did not know Samuel Johnson or

anyone else connected with the case. (Tpp. 454, 463).
                                            7

      Officer Shackleford, the first officer to respond, was dispatched to the scene at

12:03 a.m. on February 2, 2001. (Tp. 255). He observed the van with the driver side

window blown out and glass on the ground, with the driver slumped over to the right

and not responding. (Tp. 259). He felt no pulse and determined that the driver was

deceased. He appeared to have gunshot wounds to the neck and hand and blood on the

face, neck and hands. (Tp. 260). In addition to speaking with Mr. Moore, Officer

Shackleford spoke with Kevin Sheppard, who was standing outside of building 2006.

(Tpp 261-62). Officer Shackleford’s conversation with Mr. Sheppard took place

between 12:10 and 12:15. (Tp. 271).

      K-9 Officer Davis testified that his dog Bear picked up a trail in front of

building 2006 and followed it to Isler Street. The track stopped and did not pick up on

the other side of Isler. Over objection, Officer Davis was allowed to opine that this

suggested a vehicle involved. (Tpp. 360-63). On cross-examination, Officer Davis

testified that following a trail on asphalt is the most difficult type of tracking for the

dog, that the trail hit Isler about 200 feet from Holden Road, but that he did not take

the dog to Holden to try to pick up the trail there, and that he had not been informed

that Kevin Sheppard was stopped walking along Holden Road. (Tpp 367-68).

      Crime scene technicians recovered a total of 11 aluminum 9mm casings from the

scene and the interior of the van. (Tpp. 376-77???, 503-04). A total of 8 bullets were
                                            8

also recovered. (Tpp. 3**-**[sigafoos], 4**-** [Butts], 503-04). A cell phone was

found near Mr. Solis. (Tp. 386). The passenger side window was rolled up and intact.

(Tp. 415).

      Detective Edwards conducted a search of Brandon Davis’ mother’s residence,

with her consent. Based on instructions from Detective Rankin, Edwards was looking

for a 9mm gun, a brown jacket and boots. He seized a jacket, a pair of boots and a box

of 9mm Winchester cartridges, but did not find any gun. (Tpp. 433, 436-37; 443-47).

      Dr. Butts, the Medical Examiner, testified that Mr. Solis had 11 gunshot wounds

and that they generally tracked from right to left and front to back. (Tpp. 480-84).

Two of the wounds had stippling, indicating the shots were fired from a distance

measured in inches. (Tpp. 484-85). The gunshot wounds were the cause of death.

(Tp. 494). Based on how the body was found, the wounds were consistent with Mr.

Solis having been shot by someone seated in the passenger seat of the van or standing

in the open doorway of the passenger door. (Tpp. 495-96).

      SBI agent Jones, a firearms expert, testified that all of the shell casings collected

by the police had been fired from the same gun, as were all of the bullets collected. He

was never given a gun to try to match with the shells or the bullets. The shells

collected from the scene were of different manufacture than the shells seized from the

Davis residence by Detective Edwards. (Tpp. 543-45, 550-51).
                                         9

      Alison Huber, a Nextel employee, authenticated the billing records for Mr.

Solis’ cell phone. (Tpp. 599-600). The last outgoing call made from the phone was at

11:39 p.m. on February 1, 2001 to 336-580-1972. The last incoming call was at 11:41

p.m. from an unknown number. (Tpp. 602-03).

      Detective Rankin became the lead investigator into the shooting. He was called

to the scene at 12:27 a.m. When he arrived he began to coordinate the efforts of the

officers and crime scene technicians who were present. (Tp. 798-803). When Mr.

Solis was being removed from the van for transport to the morgue, officers found

$657, 16.1 grams of crack cocaine and some methamphetamine in his left rear pocket.

(Tpp. 808-10, 894).

      Detective Rankin collected Mr. Solis’ cell phone and obtained court orders to

get subscriber information on some of the phone numbers which came up. These

records showed that the numbers matched up to Hampton, Sheppard and Mr. Davis’

phones, and indicated that Mr. Solis had made calls to Mr. Davis’ phone on previous

days. (Tpp. 816-19).

B.    State’s Evidence Regarding Brandon Davis’ Conduct.
                                         10

      Officer Wilde testified that on February 1 at about 5:15 p.m. he was assisting

another officer who had stopped a car for a license tag violation and possible stolen

vehicle. Mr. Davis, who was a passenger in the car, got out and ran. Officer Wilde

caught Mr. Davis about 200 meters away. (Tpp. 698-700). When Officer Wilde

searched Mr. Davis, he discovered $2641.68, 18 grams of crack cocaine and a bag of

marijuana. Officer Wilde took custody of the money and the drugs. (Tpp. 701-03).

Mr. Davis was wearing a brown coat and toboggan and Brown Timberland boots. (Tp.

703). Mr. Davis was not armed when he was arrested. Officer Wilde was unaware of

any connection between the money or the drugs he seized from Mr. Davis and the

decedent. (Tpp. 704-05).

      Raymond Hampton, who grew up in the same neighborhood with Mr. Davis,

testified that he and Kevin Sheppard bailed Mr. Davis out of jail sometime after dark

on February 1, 2001. They went back to Hampton’s apartment and watched the end of

the Duke-Carolina basketball game and some of “SportsCenter.” (Tpp. 580-84). At

that point, Reggie Little and Michael Murphy arrived and Mr. Davis left with them.

(Tp. 584). Before he left, Mr. Davis used Hampton’s phone and also Sheppard’s

phone. (Tpp. 584-85). Hampton did not see Mr. Davis in possession of a gun that

evening, and had never known Mr. Davis to possess a gun. (Tpp. 590, 593).
                                         11

      Michael Murphy testified that he also grew up in the neighborhood with Mr.

Davis and that they had been friends for years. (Tp. 609). On February 1, 2001

Murphy was at Damien White’s house when Murphy’s friend and White’s cousin

Reggie Little came downstairs. Murphy was intoxicated and asked Little to give him a

ride to get something to eat. Little said his car was broken, so he borrowed White’s

Kia Jeep and they left. They first went to Hampton’s apartment, where Mr. Davis,

Hampton and Sheppard were present. (Tpp. 614-17). They stayed at Hampton’s for

ten or fifteen minutes, watching the end of the Duke-Carolina game. While they were

there, Mr. Davis made some phone calls. When they were leaving, Mr. Davis asked if

they could give him a ride. (Tpp. 619-20).

      They drove Mr. Davis to his mother’s house where he went inside and came

back out in a few minutes, and they left again. (Tp. 620). From there, they drove

somewhere in the vicinity of High Point Road and Holden, near where Sheppard lives,

but Murphy did not know the name of the road. During the ride, the music was turned

up loud, and there was no discussion. (Tpp. 621-23). Mr. Davis got out, saying that he

was going to holler at a friend and would be right back. Murphy, being intoxicated,

did not know where he went. (Tp. 623). While they were parked, with the music still

playing loudly, he thought he might have heard some shots. He asked Little, who said

“nah” and by then Mr. Davis was getting back into the Jeep. (Tp. 624). From there,
                                          12

Mr. Davis asked for a ride to his girlfriend’s crib. (Tp. 626). When Mr. Davis got into

the car, he was holding something white and Murphy saw the barrel of a gun. (Tp.

627).

        Murphy gave two statements to the police. (Tpp. 610-14). In one of the

statements, Murphy told the police that Mr. Davis pulled out some cocaine when he got

back into the Jeep, but Murphy testified that he has never known what cocaine looks

like. (Tpp. 627-29). In one of the statements, Murphy told the police that when Mr.

Davis got back into the Jeep, he said “I did that dude.” (Tp. 633).

        On cross-examination, Murphy acknowledged that he was extremely intoxicated

that night from “a whole lot of liquor.” (Tpp. 636-37). While being questioned by the

police he was afraid that if he didn’t say what they wanted to hear, they would do

something bad to him; they were telling him he was an accessory and he understood

that his ticket out was to tell them what they wanted to hear about Mr. Davis. (Tpp.

638, 643-44). At the time of trial, he was out on bond for a pending probation

violation. (Tpp. 638-41). Murphy gave an affidavit in which he stated that he did not

see any gun. (Tpp. 642-43, 646, 651). Murphy could not recall how Mr. Davis was

dressed that night. (Tp. 647). He has never seen the decedent, and did not know

Samuel Johnson. (Tpp. 648-49).
                                           13

       Reggie Little, who had known Mr. Davis, Murphy, and Hampton for ten or

fifteen years, testified that he was initially charged with murder in this case, but pled

guilty to accessory after the fact to robbery and to assault under an agreement to testify

against Mr. Davis. (Tpp. 661-66). In the afternoon of February 1, 2001, he was

driving with friends named Larry Ray and Timmy and with Mr. Davis, when he got

pulled because the tags on his car were not correct. (Tpp. 667-68). Mr. Davis got out

and ran. Mr. Davis did not say anything, and Little did not know what he might have

been holding, but the police told him they recovered drugs from Mr. Davis. (Tpp. 668-

70).

       Little next saw Mr. Davis when he called and asked Little to come give him a

ride. Little’s car had been towed, so he told Mr. Davis he could not. Then his cousin

Damien White came home and he borrowed White’s car to go get something to eat.

Murphy, who was also there, came along. After stopping at Wendy’s, and realizing

that he was right around the corner from Hampton’s apartment where Mr. Davis had

called from, he decided to stop by. Mr. Davis had not said why he needed a ride.

(Tpp. 670-72). When they arrived, Kevin Sheppard answered the door. Mr. Davis

said he still needed a ride, so they left without staying long enough to sit down or have

any conversation. Throughout the drive, there was no discussion at all about what Mr.

Davis was doing. They first stopped by Mr. Davis’ mother’s house, where Mr. Davis
                                           14

went inside briefly. Mr. Davis then directed him to drive to an area near High Point

Road a few blocks from the Krispy Kreme. Little did not know the exact location and

had not been to these apartments before. (Tpp. 672-76).

      Little pulled over behind some apartments, and Mr. Davis got out and walked

between two apartment buildings. While he was gone, Little and Murphy were

listening to the radio. Little heard some shots, but could not tell where they came from

and was not concerned about them. According to Little, he and Murphy had no

discussion about the shots. A few minutes later, Little saw Mr. Davis walking around

the building, so he pulled up, picked him up and drove off. (Tpp. 677-78). When he

got in the car, Mr. Davis showed Little a package and said they had not made the trip

for nothing. Little testified that Mr. Davis could have had the package before they

picked him up. Little did not see a gun. (Tpp. 679-80). Afterwards, Little dropped

Mr. Davis off at McKnight Manor apartments and went home. (Tp. 685).

      Mr. Little was interrogated and told the police that Mr. Davis said “ I done that

kid.” (Tpp. 6880-83).

      On cross-examination, Little acknowledged that he had been interrogated for

over two hours, that the officer said that he should be charging him with murder, and

that he understood that “signing that paper with the police” was his ticket out of there.

(Tpp. 686-87). That night, Mr. Davis was wearing a brown coat and a T-shirt with
                                          15

sleeves. He was still wearing the jacket when he got back into the car. (Tpp. 687-88,

694). When he dropped Mr. Davis off at McKnight Manor, he just let him out and

then left, before anyone opened the door. Mr. Davis was not carrying any black bag

or package, and was empty-handed. (Tpp 689-90).

      Little voluntarily went to Mr. Harris’ office on December 3, 2001 and gave an

affidavit stating that he has never heard Mr. Davis talk about shooting anybody. (Tpp.

691-92). In his affidavit, he said that the police came to his apartment and threatened

him with a murder charge, and that they tried to get him to say that he saw a gun or

heard gunshots that night, but that he never saw a gun or heard gunshots that night. He

testified that he honestly does not know anything about Mr. Davis being involved in

any shooting. (Tp. 693).

      Teksha Cummings testified that Mr Davis was her boyfriend at the time of these

events. (Tpp. 706-08). In the early hours of February 2, 2001, sometime after 1:00

a.m., she was at her sister Rhonda’s apartment in Timber Hollow Apartments, when

Mr. Davis knocked on the door. According to Ms. Cummings, Mr. Davis was carrying

a black shoulder bag and was acting nervous. Mr. Davis asked to use the phone, and

then they went out to eat. (Tpp. 714-18). She later saw some cocaine and a gun which

she said Mr. Davis was messing with. (Tp. 721). On February 22nd, she was arrested

along with Mr. Davis at the Extended Stay. Police found marijuana in the room. They
                                          16

told her Mr. Davis was being charged with murder. She was charged with possession

of marijuana and possession of cocaine, charges which were still pending at the time of

Mr. Davis’ trial. To the best of her knowledge, Mr. Davis was not in possession of a

gun at the motel where they were arrested. (Tpp. 734-48; 768).

      Rhonda Cummings testified that when Mr. Davis came to her apartment on the

night of the shooting, he was acting normally, and was not carrying any black bag. She

did not see Mr. Davis in possession of any gun that night and had never seen him with

a gun. (Tpp. 774, 778-80).

      Officer Ryan testified to the circumstances of Mr. Davis’ arrest on February 22,

2001. He was assigned to a stake-out team that was looking for Mr. Davis. At around

3:00 p.m., they received information from Detective Rankin and went to the Extended

Stay Motel. When the police first called and then knocked on the door to Mr. Davis’

room, they got no response. After they watched the room for about 40 minutes, Mr.

Davis exited the room, and was arrested without incident. (Tpp. 781-94). Teksha

Cummings then let the officers into the room where marijuana was found under the

bed. A more thorough search revealed 135.5 grams of cocaine and digital scales in a

shoebox. (Tp. 795-96).

      Mr. Davis seemed surprised when he left his room and the police were waiting

to arrest him. He was searched and had no gun on him or in the room. (Tp. 797).
                                         17

      After Mr. Davis was arrested, Detective Rankin searched the room but found

nothing of significance to the homicide investigation. (Tp. 851). Mr. Davis told

Detective Rankin that he had been with Little earlier in the day when he was arrested

with drugs and money. Shepard and Hampton got him out of jail and they went back

to Hampton’s to watch the rest of the game. He knew the decedent, who was called

Cisco, and had met him at the Mint, a stip club on Market Street. He called Cisco on

Shepard’s and Hampton’s phone. Shepard said that Cisco had called him earlier.

(Tpp. 859, 891-92).

      On cross-examination, Detective Rankin testified that a fingerprint belonging to

Samuel Johnson was lifted from the outside of the passenger door to the van. (Tpp.

862-63). The document requesting fingerprint analysis identified both Mr. Davis and

Johnson as suspects. (Tp. 865-68). Nevertheless, Detective Rankin never attempted to

speak to Johnson or to determine his whereabouts when Mr. Solis was killed. (Tpp.

868-70). Detective Rankin also received some leads from Mr. Solis’ girlfriend Asanta

Roberts, but chose not to follow up on them. because the investigation had already

focused on Mr. Davis. (Tpp. 870-72).

      Detective Rankin acknowledged that in her initial statements to him after she

was arrested, Teksha Cummings never mentioned anything about seeing Mr. Davis in

possession of any gun, any cocaine, or any black bag. (Tpp. 885-86).
                                          18

      By stipulation, the State introduced laboratory reports of the clothing seized

from Ms. Davis’ residence, which failed to reveal the presence of any blood. (Tpp.

898-99).

C.    Defense Evidence.

      Mr. Davis’ mother, Cecilia Davis, testified that she had no notice when the

police came to search her house. They did not have a search warrant, but she allowed

them to search wherever they wanted. (Tp. 905). Mr. Davis was not staying with her,

but would occasionally come by to pick up clothes. (Tpp. 907-08).

      Ms. Davis’ husband passed in August 1996. He was a self-employed plumber

and kept a handgun in his office. He hunted and owned hunting guns. After his death,

she gave the guns to her brother and to a friend of her husband. Her son did not take

any of the guns. The bullets seized by police probably belonged to her husband.

(Tpp. 906-07).

      Janet Harris, a notary public and wife of defense counsel Harris, testified to

preparing and notarizing statements of Murphy and Little. Both Murphy and Little

voluntarily came to the office of Karl Phillips, which her husband used for meetings.

In each case, Ms. Harris prepared the affidavits based on the statements of the men. In

each case she read back the statement before it was signed and notarized, and neither

man requested any changes. (Tpp. 911-12, 916-19, 921). Both Murphy (Tpp. 913-16)
                                           19

and Little (Tpp. 919-21) averred that they felt pressured by the police to implicate Mr.

Davis. Both denied hearing any shots, denied that Mr. Davis said anything about

shooting anybody and denied having any knowledge that Mr. Davis was involved in

the shooting.

      On cross-examination, Ms. Harris testified that Mr. Harris had only been

representing Mr. Davis for about a week before taking the statements, that the only

thing in his file was a page of notes from his initial discussion with Mr. Davis and that

there was no discovery in the file or anything else to indicate that Mr. Little had been

charged as a co-defendant and was represented by counsel. (Tpp. 922-34).

      Art League, a private investigator and 13 year veteran of the Greensboro Police

Department testified that he was unable to locate Samuel Johnson as a potential

witness in this case, but that when he was arrested in 1998, Johnson lived on West

Street, less than a thousand yards from the shooting, in the direction in which the

shooter supposedly ran. (Tpp. 943-44). According to his criminal records, Johnson is

a black male who was in his early twenties. (Tp. 945). Mr. League also located the

decedent’s girlfriend, Asante Roberts, at the Mint, where she worked. (Tpp. 954-56).

      Upon being recalled to the stand by the defendant, Detective Rankin admitted

that there were no investigation notes documenting that Little had actually shown the

police the location where Mr. Davis got out of his car on the night in question. (Tpp.
                                           20

959-62). Detective Rankin testified that the arrest report from Mr. Davis’ arrest earlier

on February 1, 2001 described Mr. Davis as having “afro hairstyle, slight beard and

mustache[.]” (Tp. 963). Detective Rankin was unaware that Johnson formerly lived

near the scene of the shooting, in the direction in which the shooter ran. He had no

knowledge of whether or not Johnson was an associate of the decedent, and no

information on why the decedent would have been parked in that parking lot with his

engine running for some period of time that evening. (Tpp. 983-85).

                                    ARGUMENT

I.  THE TRIAL COURT ERRED BY DENYING THE DEFENDANT’S
MOTION TO DISMISS AT THE CLOSE OF THE EVIDENCE.
    Assignment of Error 10, Rp. 58.

      At the close of the evidence, the defendant moved to dismiss the charges against

him. This motion was denied. In its verdict, the jury only convicted the defendant on

the basis of the felony murder rule, and not on the basis of premeditation and

deliberation. Because the State failed to present sufficient evidence that the defendant

killed the decedent or that the decedent was killed during the course of a robbery, the

trial court erred by denying the motion.

      The test upon a motion to dismiss is whether the evidence presented, taken in the

light most favorable to the State, constitutes substantial proof of each element of the

offense charged. E.g., State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
                                          21

If the State has failed to produce substantial evidence of each element of a charge, the

charge must be dismissed. Id. Evidence which merely raises suspicion, even a strong

suspicion, as to a necessary element is insufficient to withstand a motion to dismiss.

State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982). This standard

is consistent with that required under the Due Process Clause of the United States

Constitution. See, Jackson v. Virginia, 443 U.S. 307 (1979); Earnhardt, supra.

      The elements of first degree murder under the felony murder rule1 with robbery

as the underlying felony are that (1) the defendant, (2) kill another person, (3) while

committing the offense of robbery. N.C.G.S. §14-17.

A.    The Evidence Was Insufficient to Establish that Mr. Davis was the Shooter.

      The eye-witnesses living at the scene, Ms. Donnell and Ms. Fennell testified that

the person they saw wiping down the van (whom even the prosecutor acknowledged

was the perpetrator -- Tp. 1055) did not match Mr. Davis’ description as given in the

police report from his arrest earlier in the day. Ms. Fennell, who saw the perpetrator’s

face, did not see any facial hair, while Mr. Davis had a goatee. The perpetrator was

      1
        Because the jury only convicted Mr. Davis on the basis of the felony murder
rule, only the elements of this theory of first degree murder are considered on
appeal. See, State v. Workman, 344 N.C. 482, 508, 476 S.E.2d 301, 315 (1996)
(“Because the jury found defendant ... guilty ... solely on the theory of felony-
murder, ..., we do not address defendant['s] contention that there was insufficient
evidence upon which the jury could have found him guilty of premeditated and
deliberated murder.”).
                                            22

wearing a tank top T-shirt and not carrying any jacket, while all the evidence shows

that Mr. Davis was wearing a brown jacket over a sleeved T-shirt. No forensic

evidence connected Mr. Davis to the shooting. Misty Knight testified that the

decedent’s van was parked in the lot as early as dusk on the night in question (Tp.

326), when Mr. Davis was still in jail on his earlier arrest.

      Except for alleged statements by Mr. Davis that they “didn’t make the trip for

nothing” and “I did the dude,” the testimony of Little and Murphy does nothing more

than place Mr. Davis in the vicinity of the shooting at the time the offense occurred.

This is not sufficient to show that Mr. Davis committed the offense. State v. White,

293 N.C. 91, 235 S.E.2d 55 (1977). The statements are so vague and cryptical as to be

meaningless. Insofar as the statements can be considered admissions, they are

addressed separately in subsection I.C below and do not constitute substantial evidence

that Mr. Davis was the shooter. The evidence connecting Mr. Davis to this shooting is

far less compelling than that found insufficient in White.

B.    The Evidence is Insufficient to Establish that the Decedent was Killed During
the Commission of a Robbery With a Dangerous Weapon.

      In addition to being insufficient to show Mr. Davis’ involvement, the State’s

evidence is also insufficient to establish that Mr. Solis was killed during the course of a

robbery. “To prevail, the state must establish by substantial evidence that the victim

possessed the personal property and that this property was taken from him by the
                                          23

victim.” State v. Holland, 318 N.C. 602, 606, 350 S.E.2d 56, 59 (1986), overruled on

other grounds, State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987).

      The State’s theory was that Mr. Davis robbed Mr. Solis of a package containing

cocaine. The State presented no evidence whatsoever that Mr. Solis ever possessed

any such package, let alone that such a package was taken from him when he was

killed. Further, the large amounts of cocaine and cash found on Mr. Solis’ person

negate robbery as the motive for Mr. Solis being killed.

      Under these circumstances, the State’s evidence does not rise above the level of

mere suspicion that Mr. Solis was robbed. This is not sufficient to meet the State’s

burden to prove a robbery. As a result, the evidence is ipso facto insufficient to

support a murder conviction under a felony-murder theory with robbery as the

underlying felony.

C.     To the Extent that Mr. Davis’ Alleged Statements Constitute Admissions, a
Defendant’s Uncorroborated Extra-Judicial Admission Cannot Suffice to Meet the
State’s Burden of Proof.

      Without Mr. Davis’ alleged statements, the State’s evidence fails to connect Mr.

Davis to the offense and completely fails to establish that any robbery occurred. Mr.

Davis strongly contends that the statements are so vague that they cannot possibly cure

the deficiencies in the State’s proof. This is especially true with regard to the

insufficiency of proof that Mr. Solis was robbed. The statement “we didn’t make the
                                            24

trip for nothing” is especially vague and can be interpreted in so many different ways

as to be completely worthless as proof of a robbery.

      However, even if these statements were to be considered admissions, they would

still be insufficient to meet the State’s burden of proof. When the State relies solely on

a defendant’s extra-judicial confession or admission to establish his guilt, a special rule

of sufficiency applies. There must be sufficient evidence corroborating the statement

to demonstrate its trustworthiness. The rule is set out in State v. Franklin, 308 N.C.

682, 304 S.E.2d 579 (1983) and State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985).

In Parker, the Court stated that in a felony-murder prosecution “[t]he element which

consists of the underlying felony may be proved by the defendant's confession when

there is corroborative evidence tending to establish the reliability of the confession.”

Id at 228, 337 S.E.2d at 491 (emphasis in original). The Court added that “when

independent proof of loss or injury is lacking, there must be strong corroboration of

essential facts and circumstances embraced in the defendant’s confession.” Id. at 236,

337 S.E.2d at 495 (emphasis in original). In both Franklin, supra and Parker, supra

the defendants gave detailed confessions to police describing how they killed the

victims and committed the related felonies in their respective cases (robbery in Parker

and sexual offense in Franklin). These confessions matched up in significant detail
                                          25

with the physical evidence in those cases. See, Parker, 315 N.C. at 237-38, 337 S.E.2d

at 495-96; Franklin, 308 N.C. at 682-85, 304 S.E.2d at 580-81.

      In contrast, the defendant’s alleged admissions in this case consist of two short

sentences which contain no detail which could be subject to the type of specific

corroboration discussed in Parker, supra and Franklin, supra. As discussed above,

there was no evidence apart from the statements even generally corroborating Mr.

Davis’ involvement in the shooting or corroborating the occurrence of a robbery.

Finally, regarding the lack of trustworthiness of the statements, consideration must be

given to the fact that these admissions were reported not by police officers, but by

snitch witnesses who admitted that they felt pressured to implicate Mr. Davis. One

was charged as a co-defendant and allowed to plead to significantly reduced charges

and the other was, by his own admission, highly intoxicated at the relevant time.

      Under all these circumstances, these purported admissions are uncorroborated

and completely lacking in trustworthiness and the State’s evidence as a whole is

insufficient to establish that Mr. Davis killed Mr. Solis or to show that Mr. Solis was

killed during the course of a robbery.

II. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT’S
REQUEST FOR APPOINTMENT OF ASSISTANT COUNSEL.

      Assignment of Error 1, Rp. 56.
                                            26

       At his capital trial, Mr. Davis was represented by a single attorney, Mr. Harris.

Although Mr. Davis was indigent, Mr. Harris had been retained by Mr. Davis’ mother.

Mr. Davis, through Mr. Harris, moved for appointment of assistant counsel. The trial

court denied this motion. Because Mr. Davis was indigent and statutorily entitled to

appointment of assistant counsel, the trial court erred by denying the motion. Because

denial of this right is prejudicial per se, Mr. Davis is entitled to a new trial.

A.    The Law Entitled Mr. Davis to Appointment of Assistant Counsel, and
Establishes that Denial of This Right Constitutes Prejudicial Error Per Se.

       N.C.G.S. §7A-450(b1) provides that “[a]n indigent person indicted for murder

may not be tried where the State is seeking the death penalty without an assistant

counsel being appointed in a timely manner.” Mr. Davis was indicted for murder (Rp.

5) and was determined by the trial court to be indigent. (Rp. 7). The State sought the

death penalty. (Rpp. 6, 39-45). Mr. Davis moved for appointment of assistant counsel

substantially prior to trial. (2/4/02 Tpp. 5-7). The trial court denied the motion. (Rpp.

9-10). The motion was renewed and again denied prior to the sentencing phase of the

trial. (Tpp. 1123-26).

       In State v. Hucks, 323 N.C. 574, 374 S.E.2d 240 (1988) the North Carolina

Supreme Court recognized that a trial court’s failure to appoint assistant counsel in a

timely manner violates the statute. The Court also recognized that a violation of the

right to assistant counsel is prejudicial error per se, is not amenable to harmless error
                                           27

analysis, and requires a new trial and not merely a new capital sentencing hearing. Id.

at 244-45, 374 S.E.2d at 580-81. Since Hucks, the Supreme Court has repeatedly

reaffirmed the rule that denial of the right to assistant counsel in a capital trial is

prejudicial per se. See, e.g., State v. Brown, 325 N.C. 427, 383 S.E.2d 910 (1989) (per

curiam); State v. Parker, 350 N.C. 411, 421, 516 S.E.2d 106, 114 (1999).

B.    The Case Law Relied Upon by the Trial Court in Denying the Motion is
Factually Distinguishable and Inapplicable to Mr. Davis’ Situation.

      In denying the motion, the trial court relied on State v. Richardson, 342 N.C.

772, 467 S.E.2d 685 (1996). Richardson involved completely different facts. In

Richardson, the defendant was represented by two attorneys who had been retained by

the defendant’s parents and made a general appearance. When the parents were unable

to finish paying the legal fees, the attorneys moved to be converted to appointed status,

which was denied. Throughout the defendant’s trial, he was represented by two

attorneys and the Supreme Court noted that the attorneys continued to zealously

represent the defendant throughout the case, despite the prospect of not being paid. Id.

at 781, 467 S.E.2d at 690.

      On appeal, the defendant argued that the denial of the motion to change

counsel’s status to appointed resulted in a denial of his statutory right to appointed

counsel.   It was against the factual background of the defendant having been

represented by two attorneys throughout his case that the Court held that “a defendant
                                           28

who has retained counsel who has made a general appearance on his behalf is no

longer considered indigent within the statutory framework[.]” Ibid. In Richardson, the

issue was raised and decided under N.C.G.S. §7A-450(a) and 450(c). N.C.G.S. §7A-

450(b1), the provision specifically applying to assistant counsel, is not mentioned

anywhere in Richardson. The defendant in Richardson had the full measure of counsel

to which he would have been entitled as an indigent, and it is this level of

representation to which the Court referred in laying down a rule that defendants with

“retained counsel” are not indigent.

      In Richardson, supra the Court cites to State v. McDowell, 329 N.C. 363, 407

S.E.2d 200 (1991). McDowell is also factually distinguishable from this case. In

McDowell, the defendant, who was indigent, was represented by a single attorney

retained by his family. Prior to the trial, the trial court conducted a colloquy with the

defendant in which the defendant accepted the attorney who had been retained by his

parents and explicitly waived any right to the appointment of additional counsel. Id. at

372-73, 407 S.E.2d at 205. At no time during the trial process did the defense request

appointment of second counsel. By accepting the representation of the attorney hired

by his family and by explicitly waiving the appointment of additional counsel, the

defendant in McDowell had the full measure of counsel to which he was entitled. On
                                          29

these facts, the Court held that he was not indigent for purposes of appointment of

counsel. Id. at 373, 407 S.E.2d at 206.

      In contrast to these cases, Mr. Davis was not afforded the full level of

representation to which he was entitled as an indigent capital defendant. Through his

single retained counsel, Mr. Harris, he moved for appointment of second counsel. It

seems clear from Mr. Harris’ comments that he was retained with the understanding

that second counsel would be appointed. (2/4/02 Tpp. 5-6; Tpp. 1123-24). Nothing in

the record shows that Mr. Davis knowingly waived the right to assistant counsel, or

that he was ever advised that by accepting the services of Mr. Harris he would be

giving up the right to have two appointed counsel. See, Brown, supra.

      The trial court interpreted Richardson, supra to mean that a trial court has no

authority to appoint second counsel in a capital case where the defendant has a single

retained attorney. (2/4/02 Tpp. 7-8). This view is belied by State v. Locklear, 322

N.C. 349, 368 S.E.2d 377 (1988). In Locklear, the Court discusses with approval a

situation in which a capital defendant with a single retained attorney was appointed

second counsel under the statute. Id. at 356-57, 368 S.E.2d at 382. The fact that

Locklear was not overruled by McDowell, supra or Richardson, supra demonstrates

that these cases do not stand for the broad proposition that a capital defendant with a

single retained attorney can never be indigent for purposes of appointment of second
                                           30

counsel. To the contrary, Locklear demonstrates that Richardson and McDowell are

limited to their facts and only mean that the defendants in those cases were not indigent

for appointment of counsel purposes because the retained counsel fully satisfied those

defendants’ entitlement to counsel under the particular circumstances of their

respective cases.

       The factual distinctions between Mr. Davis’ case and Richardson, supra and

McDowell, supra are critical. As a result, the case is governed by Hucks, supra and

not by Richardson which was incorrectly cited by the trial court as controlling. As a

result, the trial court erred by denying the motion.

III. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT’S
MOTION FOR PRODUCTION OF EXCULPATORY EVIDENCE.
     Assignment of Error 3, Rp. 56.

       Prior to trial, the defendant made a motion for production of exculpatory

evidence seeking the name and contact information of the decedent’s girlfriend. The

girlfriend had given the police a statement indicating several possible suspects other

than the defendant. In providing this statement to the defense in discovery, the

prosecutor blacked out the girlfriend’s name and contact information. The trial court

denied the motion. (4/29/02 Tpp. 7-9; 17, Rpp. 11-13, 17). The denial of this motion

is reversible error.
                                           31

        This case is virtually identical to, and governed by, State v. Canady, 355 N.C.

242, 559 S.E.2d 762 (2002). In Canady, the trial court denied the defendant’s pretrial

motions to be provided with the names and addresses of several individuals who had

given statements implicating others in the offense. The Court held that under Brady v.

Maryland, 373 U.S. 83 (1963) and its progeny, a defendant is entitled to have

exculpatory information from the State in a time and manner which will enable him to

make use of the information. Canady, 355 N.C. at 252-53; 559 S.E.2d at 767.

Because the defendant was not given the names of the persons making the statements,

he

        could not effectively use that information at trial. Defendant needed
        access to these individuals to interview them and develop leads. There is
        a reasonable probability that if defendant had access to informants who
        had names of others involved in the murders, such information could
        have swayed the jury to reach a different outcome. Defendant had a right
        to this information in a timely manner so he could effectively use it. Our
        confidence in the outcome of this case is undermined by defendant's
        inability to interview witnesses with potentially exculpatory information.

Ibid.

        Similarly, in this case, the defense was given a statement from decedent’s

girlfriend indicating that the decedent was a drug dealer and had received Hispanic-

sounding threats on the girlfriend’s answering machine; that he had a dispute with a

business partner over laundering money, resulting in threats back and forth; and that

the decedent had killed someone in California, was wanted for murder there and was
                                           32

hiding out in North Carolina (Rpp. 11-12, 4/29/02 Tpp. 7-8). Based on defense

investigator League’s testimony, the defense was not able to identify and locate Ms.

Roberts, who made the statement, until Friday night, August 9, 2002, after the

defendant had started presenting his evidence at trial. After talking to her, Mr. League

tried to locate another witness, apparently based on information she gave him, but was

unable to do so before the defense rested on Monday, August 12. (Tpp. 955-57).

      As in Canady, Mr. Davis was unable to make effective use of the potentially

exculpatory information because he was not told the identity of the person making the

statement in sufficient time to investigate the information and use it to develop leads to

admissible evidence pointing to someone other than the defendant as the perpetrator.

In this case, the eye-witness descriptions of the perpetrator do not match the defendant;

the evidence connecting the defendant to the scene was both speculative and of

dubious credibility; the decedent had money and drugs in his pocket and was killed in a

manner even the prosecutor described as “execution-style” (Tp. 1044), strongly

suggesting a motive other than robbery; and a fingerprint belonging to a person other

than the defendant, and not known to the owner of the van, was found on the passenger

door. Under all of these circumstances, Mr. Davis was entitled to know the identity of

the person making the statement in sufficient time to have the opportunity to use the

information to develop admissible trial evidence of third-party guilt. Canady, supra.
                                           33

IV. THE TRIAL COURT ERRED BY OVERRULING THE DEFENDANT’S
OBJECTION AND ALLOWING THE STATE TO INTRODUCE EVIDENCE THAT
THE DEFENDANT WAS ARRESTED IN POSSESSION OF LARGE QUANTITIES
OF DRUGS AND MONEY.
     Assignment of Error 5, Rp. 57.

      The State presented evidence that Mr. Davis was arrested on February 1, 2001

with over 18 grams of cocaine and over $2600 in his possession. Prior to the State

introducing this evidence the defendant objected, the trial court conducted a hearing,

and overruled the objection. (Tpp. 559-73). The trial court ruled that the evidence was

admissible under Rule 404(b) as evidence of motive and gave the jury a limiting

instruction that the evidence was admissible solely to show motive. (Tpp. 575-77).

Because circumstances of the defendant’s arrest earlier in the day have no bearing

whatsoever on motive, the trial court erred by overruling the objection and admitting

this evidence.

      Evidence that a defendant has committed other criminal acts is not admissible at

trial to show that he is a person of bad character or that he has a propensity to commit

the crime, but may be admissible if it is otherwise relevent to some contested issue in a

case, including motive. N.C.R.Evid., Rule 404(b); also see, e.g., State v. Ligon, 332

N.C. 224, 234-35, 420 S.E.2d 136, 142 (1992). If, however, the sole function of

admitting the evidence is to demonstrate the defendant’s propensity to commit the
                                          34

offense, it is error to admit the evidence. E.g., State v. Emery, 91 N.C.App. 24, 33-34,

370 S.E.2d 456, 461-62 disc. rev. denied, 323 N.C. 627, 374 S.E.2d 594 (1988).

      In arguing that the evidence of Mr. Davis’ drug arrest earlier in the day was

admissible to show motive, the State relied on Ligon, supra and Emery, supra. These

cases actually illustrate why the evidence in question was inadmissible under Rule

404(b). In Ligon, the State’s witness testified that he was selling drugs for the

defendant on a street corner, that the victim drove up, took some drugs from him and

started driving away without paying for the drugs, and that the defendant thereupon

started shooting into the car, killing the victim. Another witness testified that the

defendant stated, immediately after the shooting “that will teach people not to rip

Burton Street off.” 332 N.C. at 228-29, 420 S.E.2d at 138-39. In this context, the

defendant’s drug dealing was directly connected to the shooting -- he shot a man who

was stealing his drugs. The relevance of this evidence to show that defendant’s motive

was to protect his operations was obvious and the defendant’s drug-dealing activities

were therefore admissible under Rule 404(b). Id. at 234-35; 420 S.E.2d at 142.

      In Emery, supra, the defendant was convicted of murder for shooting the 16

year-old victim. The defense was accident. The State presented evidence that the

defendant had sold marijuana to the victim and later asked whether he was a “nark,”

that the defendant was in the business of selling marijuana to high school students, and
                                           35

that he was involved in an unrelated break-in which involved the use of a gun. Id. at

25-26, 370 S.E.2d at 457-58. The Court ruled that the evidence that defendant sold

drugs to the victim and thought he might be a “nark” was admissible under Rule 404(b)

to show motive, but that the evidence that defendant was in the business of selling

drugs to high school students and the evidence of the unrelated break-in were unrelated

to any issue in the case and the admission of this evidence was prejudicial error

requiring a new trial. Id. at 33-35, 370 S.E.2d at 461-62. The State’s theory of

admissibility regarding the break-in, that it showed the defendant’s willingness to use a

gun in a felonious manner, was the very type of criminal propensity theory of

admissibility prohibited under Rule 404(b). Ibid.

      In contrast to Ligon, supra, in this case the State did not present any evidence

connecting Mr. Davis’ drug dealing activities to the decedent or his shooting. No

evidence showed that Mr. Davis ever sold drugs to the decedent or bought drugs from

him, let alone any connection between the decedent and the specific drugs and money

taken from Mr. Davis by Officer Wilde that afternoon. The factual distinction between

this case and Ligon illustrates why the evidence was inadmissible in this case.

Similarly, the absence of any connection between Mr. Davis’ drug dealing and the

decedent makes this evidence comparable to the general drug dealing evidence held

inadmissible in Emery, supra, not to the evidence of dealings between the defendant
                                           36

and victim which Emery held admissible. Indeed, this point could not be better

illustrated than by the dichotomy present in Emery.

       The State’s argument for admissibility in this case seems to be that the defendant

is a drug dealer, the decedent is a drug dealer, the killing was done in a manner typical

of drug dealers, therefore the defendant probably killed the decedent and did so in

order to rob him of drugs, in conformity with his character as a drug dealer. (See Tpp.

561-63, 571-72). This is exactly the kind of propensity evidence explicitly prohibited

by Rule 404(b). Emery, supra.

       Given the weakness of the State’s case, and given the obvious tendency of this

evidence to bolster the entirely speculative felony-murder drug-robbery theory which

was the only theory of murder found by the jury, the erroneous admission of this

evidence was prejudicial and Mr. Davis is entitled to a new trial.

                                    CONCLUSION

       For the reason set out in Issue I, Mr. Davis is entitled to have the charge against

him dismissed. In the alternative, for the reasons set out in the remaining issues, he is

entitled to a new trial.
                                  37

The foregoing brief is respectfully submitted, this the 4th day of May, 2004.


                          __________________________
                          Daniel Shatz
                          P.O. Box 3852
                          Durham, NC 27702
                          (919) 956-8771
                          shatzlaw@earthlink.net
                          Attorney for Defendant-Appellant Davis
                                          38

         CERTIFICATE OF COMPLIANCE WITH N.C.R.App.P 28(j)(2)

      Undersigned counsel hereby certifies that this brief is in compliance with
N.C.R.App.P. 28(j)(2) in that it is printed in 14 point Times New Roman font and
contains no more that 8750 words in the body of the brief, from the beginning of the
statement of the case through the end of the conclusion, footnotes and citations
included, as indicated by the word-processing program used to prepare the brief
(WordPerfect 6.1).

                                        ________________________
                                        Daniel Shatz

                           CERTIFICATE OF SERVICE

        Undersigned counsel hereby certifies that he has served a copy of the foregoing
brief upon the State of North Carolina by mailing a copy thereof by United States Mail,
first class postage affixed thereto to

      Alexander McC. Peters
      Special Deputy Attorney General
      P.O. Box 629
      Raleigh, NC 27602

      This the 4th day of May, 2004.

                                        ___________________________________
                                        Daniel Shatz
                               TABLE OF CONTENTS

TABLE OF CASES AND AUTHORITIES ....................................... iii

QUESTIONS PRESENTED ............................................................... 1

STATEMENT OF THE CASE ........................................................... 2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW .......... 2

STATEMENT OF THE FACTS ......................................................... 3

        A.       State’s Evidence Regarding the Killing of the Decedent

        B.       State’s Evidence Regarding Brandon Davis’ Conduct

        C.       Defense Evidence

ARGUMENT ....................................................................................... 7

I.      THE TRIAL COURT ERRED BY DENYING THE
        DEFENDANT’S MOTION TO DISMISS AT THE CLOSE
        OF THE EVIDENCE

        A.       The Evidence Was Insufficient to Establish that Mr. Davis
                 was the Shooter
        B.       The Evidence is Insufficient to Establish that the
                 Decedent was Killed During the Commission of a
                 Robbery With a Dangerous Weapon

        C.     To the Extent that Mr. Davis’ Alleged Statements
        Constitute Admissions, a Defendant’s Uncorroborated
        Extra-Judicial Admission Cannot Suffice to Meet the
        State’s Burden of Proof

II.     THE TRIAL COURT ERRED BY DENYING THE
        DEFENDANT’S REQUEST FOR APPOINTMENT OF
        ASSISTANT COUNSEL

        A.       The Law Entitled Mr. Davis to Appointment of
                 Assistant Counsel, and Establishes that Denial of
                 This Right Constitutes Prejudicial Error Per Se

        B.       The Case Law Relied Upon by the Trial Court in
                 Denying the Motion is Factually Distinguishable
                 and Inapplicable to Mr. Davis’ Situation

III.    THE TRIAL COURT ERRED BY DENYING THE
        DEFENDANT’S MOTION FOR PRODUCTION OF
        EXCULPATORY EVIDENCE

IV.     THE TRIAL COURT ERRED BY OVERRULING THE
        DEFENDANT’S OBJECTION AND ALLOWING THE
        STATE TO INTRODUCE EVIDENCE THAT THE
        DEFENDANT WAS ARRESTED IN POSSESSION OF
        LARGE QUANTITIES OF DRUGS AND MONEY.

CONCLUSION .................................................................................. 21

CERTIFICATE OF COMPLIANCE WITH N.C.R.App.P. 28(j)(2) . 22

CERTIFICATE OF SERVICE .......................................................... 22


                                               ii
iii
                           TABLE OF AUTHORITIES

                                      Cases

Brady v. Maryland, 373 U.S. 83 (1963)

Jackson v. Virginia, 443 U.S. 307 (1979)

State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984)

State v. Brown, 325 N.C. 427, 383 S.E.2d 910 (1989) (per curiam)

State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (2002)

State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982)

State v. Emery, 91 N.C.App. 24, 370 S.E.2d 456
       disc. rev. denied, 323 N.C. 627, 374 S.E.2d 594 (1988)

State v. Franklin, 308 N.C. 682, 304 S.E.2d 579 (1983)

State v. Holland, 318 N.C. 602, 350 S.E.2d 56 (1986),
       overruled on other grounds,
       State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987)

State v. Hucks, 323 N.C. 574, 374 S.E.2d 240 (1988)

State v. Ligon, 332 N.C. 224, 420 S.E.2d 136 (1992)

State v. Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988

State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991)

State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985)

State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999)


                                        iv
State v. Richardson, 342 N.C. 772, 467 S.E.2d 685 (1996)
State v. White, 293 N.C. 91, 235 S.E.2d 55 (1977)

State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996)

                                       Statutes and Other Authority

N.C.G.S. §7A-27(b) .................................................................................................. 7

N.C.G.S. §7A-450(a)

N.C.G.S. §7A-450(b1)

N.C.G.S. §7A-450(c)

N.C.G.S. §14-17

N.C.R.Evid., Rule 404(b)




                                                          v

				
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