Opinion
No. COA11–1111.
2012-05-15
STATE of North Carolina v. Jacques Craig FLOYD, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Daniel F. Read for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Daniel F. Read for defendant-appellant.
GEER, Judge.
Appeal by defendant from order entered 3 May 2011 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 30 April 2012.
Defendant Jacques Craig Floyd appeals the trial court's denial of his motion for post-conviction DNA testing pursuant to N.C. Gen.Stat. § 15A–269 (2011). Defendant has not, however, identified the existence of any biological evidence that could be tested. Accordingly, the trial court properly denied defendant's motion.
On 27 October 2010, a jury found defendant guilty of robbery with a dangerous weapon. The State primarily relied on fingerprints collected from the scene, including a latent print matching defendant that was removed from a cup held by the robber at the scene. Defendant appealed his conviction and this Court found no error. State v. Floyd, ––– N.C.App. ––––, 716 S.E.2d 90, 2011 N.C.App. LEXIS 1959, 2011 WL 3891790 (2011) (unpublished). On 13 December 2010, while the appeal was pending, defendant filed a pro se post-conviction motion for DNA testing pursuant to N.C. Gen.Stat. § 15A–269.
Defendant sought DNA testing of hair follicle samples taken from him, “[a]ny and all forensic evidence that may exist,” and “[a]ny and all biological evidence collected from [the] crime scene.” The State, in its response, stated that “DNA evidence was not collected from the scene” and “[t]hat the cup from which the latent print was lifted was not seized by the Cary Police Department or CCBI.” By order entered 3 May 2011, the trial court denied defendant's motion. Defendant timely appealed to this Court.
N.C. Gen.Stat. § 15A–269(a) provides:
A defendant may make a motion before the trial court that entered the judgment of conviction against the defendant for performance of DNA testing and, if testing complies with FBI requirements and the data meets NDIS criteria, profiles obtained from the testing shall be searched and/or uploaded to CODIS if the biological evidence meets all of the following conditions:
(1) Is material to the defendant's defense.
(2) Is related to the investigation or prosecution that resulted in the judgment.
(3) Meets either of the following conditions:
a. It was not DNA tested previously.
b. It was tested previously, but the requested DNA test would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.
(Emphasis added.) The trial court shall grant a motion for post-conviction DNA testing if, among other things, it determines “[t]he conditions set forth in subdivisions (1), (2), and (3) of subsection (a) of [N.C.G.S. § 15A–269] have been met[.]” N.C. Gen.Stat. § 15A–269 (b)(1).
In this case, defendant has not pointed to any biological evidence that exists which could be tested. In fact, on appeal, defendant does not argue that the trial court erred in refusing to order DNA testing. Rather, he contends that because the State did not collect the cup and subject it to testing, “the judgment should be vacated and the case remanded with instructions to dismiss or in the alternative grant a new trial and exclude evidence relating to the fingerprints” on the cup.
His arguments are beside the point given that this appeal is from the denial of an order seeking DNA testing. The arguments should have been made on direct appeal or in a motion for appropriate relief. Because defendant has not made a showing under N.C. Gen.Stat. § 15A–269(a) that the State possesses any biological evidence that could be tested, we affirm the trial court's order.
Affirmed. Judges BRYANT and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).