Opinion
No. COA10-1383
Filed 2 August 2011 This case not for publication
Appeal by Defendant from order entered 4 August 2010 by Judge Frank R. Brown in Superior Court, Edgecombe County. Heard in the Court of Appeals 26 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd and Assistant Appellate Defender Mary Cook, for Defendant-Appellant.
Edgecombe County No. 06 CRS 51988.
Defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury and first-degree burglary on 26 April 2007. Defendant was sentenced to consecutive active sentences of seventy-three to ninety-seven months and sixty-four to eighty-six months, respectively. Defendant previously appealed from these convictions. In a prior opinion, our Court held "No Error in part; No Prejudicial Error in part." State v. Moore, 189 N.C. App. 532, 659 S.E.2d 489, 2008 N.C. App. LEXIS 641, 22 (2008) (unpublished opinion) ( Moore I). A more complete statement of the facts may be found in Moore I. Defendant filed a post-conviction "Motion for DNA Testing" on 8 June 2009. In his motion, Defendant requested that the trial court order DNA testing on a pair of latex gloves recovered during the investigation of Defendant's case and that were admitted as evidence at trial. By order entered 4 August 2010, the trial court denied Defendant's motion for DNA testing of the gloves. Defendant appeals the denial of his motion.
Defendant argues that the trial court erred in denying his motion for DNA testing. We disagree.
N.C. Gen. Stat. § 15A-269 (2009) provides the guidelines for granting or denying a request for post-conviction DNA testing:
Request for postconviction DNA testing.
(a) 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.
(b) The court shall grant the motion for DNA testing . . . upon its determination that:
(1) The conditions set forth in subdivisions (1), (2), and (3) of subsection (a) of this section have been met;
(2) If the DNA testing being requested had been conducted on the evidence, there exists a reasonable probability that the verdict would have been more favorable to the defendant; and
(3) The defendant has signed a sworn affidavit of innocence.
"[A] condition precedent to a trial court's statutory authority to grant a motion under N.C.G.S. § 15A-269 is that the conditions of subsection (a) must be met[.]" State v. Barts, ___ N.C. App. ___, 696 S.E.2d 923, 2010 N.C. App. LEXIS 979, 4-5 (2010) (unpublished opinion). We agree with this holding in Barts and apply it to the matter before us.
As noted above, Defendant previously appealed his conviction in this matter. In the prior decision of our Court regarding Defendant's previous appeal, our Court stated the following about the latex gloves Defendant sought to have tested for DNA evidence:
Defendant . . . argues that the latex gloves were erroneously admitted into evidence because (1) the gloves had been submitted to the SBI for forensic evaluation and the DNA obtained from the gloves did not connect defendant to the crime; and (2) [one of the victims] stated that the assailant was not wearing gloves. . . .
First, defendant correctly contends that . . . [the] gloves failed to connect defendant to the crime at issue, and therefore, the evidence was both irrelevant and prejudicial. [The introduction of the gloves did not have] "any tendency to make the existence of any fact . . . of consequence to the determination of the action more probable or less probable than it would [have] be[en] without the evidence," N.C. Gen. Stat. § 8C-1, Rule 401 (2005), and any value that such evidence may have had was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." N.C. Gen. Stat. § 8C-1, Rule 403 (2005). Therefore, the evidence should have been excluded. See N.C. Gen. Stat. § 8C-1, Rules 402, 403 (2005).
Nevertheless, based upon the record, we cannot conclude that the evidence was so prejudicial that the trial court erred in failing to exclude it sua sponte. Defendant's contention that the evidence created a false impression for the jury that forensic evidence supported the [victims'] claims is belied by the fact that the jury clearly was informed that the evidence did not connect defendant to the crime. Specifically, Detective Eugene Harrell ("Detective Harrell"), of the Edgecombe County Sheriff's Office, testified on cross-examination:
[DEFENSE COUNSEL]: So you don't think the gloves relate to this case?
[DETECTIVE HARRELL]: At this point, no, sir.
Moore I, 2008 N.C. App. LEXIS 641, 14-15. In Moore I, Defendant stated in his brief that: "[Detective] Harrell testified that the DNA obtained from the latex gloves did not connect [Defendant] to this case." However, Defendant later claimed in his motion for DNA testing that: (1) "DNA was recovered from the[] gloves" and (2) "The recovered DNA was not subjected [to] DNA testing or comparison." The information contained in Defendant's motion is in direct contradiction to evidence presented at trial and Defendant's own characterization of that evidence in Moore I. Defendant makes no argument, nor does he produce any evidence in the record, that DNA testing was not, in fact, performed on the gloves. Because we can find no basis in the record to support Defendant's assertion in his motion that no DNA testing has been conducted on the gloves, and because Defendant has previously argued to our Court that DNA testing was done on the gloves, we affirm the denial of Defendant's motion for DNA testing. It is Defendant's duty to insure that the record on appeal is complete and sufficient for our Court to conduct appellate review. State v. Brown, 142 N.C. App. 491, 543 S.E.2d 192 (2001). Defendant fails as a matter of law to meet the condition of (a)(3)a. of N.C.G.S. § 15A-269 as required by N.C.G.S. § 15A-269(b)(1) (the defendant must show that the evidence "was not DNA tested previously"). We note that our holding is limited to facts like the ones before us: where evidence shows, and a defendant has stated, that DNA testing was conducted, and the defendant subsequently fails to produce any evidence that the prior evidence and his prior arguments were in error.
Defendant's motion for DNA testing further states: "The ability to conduct the requested DNA testing is material to Defendant's defense." That is the entirety of Defendant's motion concerning the materiality prong of N.C.G.S. § 15A-269. Our Court in Barts, 2010 N.C. App. LEXIS 979, 5-7, stated that
[A] defendant's motion [i]s properly brought under N.C.G.S. § 15A-269(a) only when a defendant sufficiently alleged each of the conditions set forth in subsection (a), including the condition that the defendant show the materiality of the DNA testing to his or her defense. Because accepting this defendant's interpretation of what constitutes "bring[ing] a motion" under N.C.G.S. § 15A-269 requires that we accept the unlikely premise that the General Assembly intended only to require that a defendant's indigence be the threshold condition . . . without regard to whether such a defendant had any basis for bringing a motion requesting postconviction DNA testing under N.C.G.S. § 15A-269(a), we find defendant's argument unpersuasive.
In his paper writing, defendant alleged he was indigent and indicated that his "motions" were made pursuant to five enumerated statutory provisions — one of which was N.C.G.S. § 15A-269. Although it appears defendant attempted to address the conditions set forth in N.C.G.S. § 15A-269(a)(2)-(3) in his filing, he made no showing, as he concedes, relating to how the requested DNA testing would have been material to his defense as required by the condition set forth under N.C.G.S. § 15A-269(a)(1). Therefore, we conclude that defendant did not comply with each of the statutory requirements for a proper motion under N.C.G.S. § 15A-269, and did not meet the threshold statutory requirements that we have determined must be met in order to obligate the trial court to grant defendant's request[.]
For the same reason, we reject defendant's remaining assignment of error by which he contends the trial court erred in denying his request for DNA testing. Since defendant concedes that he did not address the materiality of the DNA testing to his defense in his filing . . . we conclude the trial court did not err by determining that defendant's filing was insufficient to allow his request seeking postconviction DNA testing pursuant to N.C.G.S. § 15A-269.
Again, we agree with and adopt this holding in Barts. Defendant's motion in no manner indicated how or why DNA testing would be material to his defense. Defendant's motion therefore failed the requirements of N.C.G.S. § 15A-269 on this issue, and Defendant's "filing was insufficient to allow his request seeking postconviction DNA testing[.]" Id. at 7.
Finally, Defendant's argument that "a favorable DNA test result, combined with the other issues surrounding the identification [of Defendant as the perpetrator], could have tipped the scale in [Defendant's] favor[,]" is belied by Defendant's assertions in Moore I, the holding of our Court in Moore I, and Defendant's argument in the present appeal. Defendant states in his brief: "At trial, it was shown, and [the Court of Appeals] agreed, that the . . . gloves failed to connect [Defendant] to the crime, and `therefore, the evidence was both irrelevant and prejudicial.'" Defendant is correct. He argued to our Court in Moore I that the evidence of the gloves was irrelevant, and our Court so held. Because that evidence was irrelevant, and it was not connected to the crime for which Defendant was convicted, nothing related to that evidence could have "tipped the scale" in Defendant's favor. We affirm the denial of Defendant's motion for DNA testing.
In light of our holding above, we do not address Defendant's second argument.
Affirmed.
Judge STROUD concurs.
Judge BEASLEY concurs in the result only.
Report per Rule 30(e).