Opinion
NO. COA12-578
12-18-2012
STATE OF NORTH CAROLINA v. GARY BERNARD SPRINGS
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. Ryan McKaig, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Forsyth County
No. 02 CRS 21524
Appeal by Defendant from an order entered 13 January 2012 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 24 October 2012.
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.
Ryan McKaig, for Defendant.
BEASLEY, Judge.
Gary Springs (Defendant) appeals from an order denying his motions for DNA testing and to locate and preserve evidence. For the following reasons, we affirm.
In 2002, Defendant was found guilty of common law robbery. At trial the victim positively identified Defendant and testified that he knew Defendant from transporting Defendant to and from job sites while working as a driver for a staffing agency. Two eyewitnesses to the assault and robbery of the victim also testified; one positively identified Defendant as the offender. Defendant was sentenced to 144 to 182 months in prison as a habitual felon, which he is currently serving. On 4 May 2004, this Court affirmed the judgment of the trial court.
Defendant has since filed multiple post-conviction motions. The first, filed on 5 January 2005, was denied for seeking post-conviction discovery. The second and third were both Motions for Appropriate Relief (MAR) and were filed on 3 May 2005 and 30 May 2005, respectively. They were both denied as procedurally barred under N.C. Gen. Stat. §15A-1419(a). On 3 May 2011, Defendant filed a motion for DNA testing and a motion to locate and preserve evidence. The requested evidence included the victim's bloody shirt; the victim's bloody pants; blood from victim's van; finger prints from victim's van; finger prints from Defendant; blood from Defendant; employment records of the suspect from Labor Finders; employment records of the suspect from Labor Ready; and employment records of the suspect from Alliance Construction Company. Defendant had previously filed a MAR alleging that the State failed to disclose these labor records and that his counsel was ineffective for failing to obtain them. There is nothing in the record indicating that any of these items of evidence were introduced at trial or even exist.
To complete these motions, Defendant used a form motion on which he checked boxes next to both statements that the items were "not subjected to DNA testing, or . . . can now be subjected to newer and more accurate testing which would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice, or have a reasonable probability of the contradicting prior test results." He provided no elaboration on either point, nor did he indicate which items fell into which category.
On 13 January 2012, the trial court filed an order denying these motions. The trial court found that Defendant failed to sufficiently show that the testing was material to his defense or the underlying prosecution and failed to show whether the evidence was previously tested and, if so, whether the results from new tests would be more accurate or probative, as required by N.C. Gen. Stat. § 15A-269. The trial court cited the testimony listed above as the basis for Defendant's conviction. Defendant appeals from this order. As of 27 February 2012, Defendant is represented by appointed counsel in this appeal.
We first note that Defendant's notice of appeal was filed late and the State was not served, violating Rule 4(a) and 4(c) of the North Carolina Rules of Appellate Procedure. "[W]hen a defendant has not properly given notice of appeal, this Court is without jurisdiction to hear the appeal." State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 (2005). However, Defendant has filed a petition for writ of certiorari, which we are within our discretion to grant and which provides us with jurisdiction to assess the merits of the case. N.C. R. App. P. 21(a). We grant Defendant's petition in this case.
Defendant first argues that the trial court erred in failing to appoint counsel for him pursuant to N.C. Gen. Stat. § 15A-269(c) (2011). We disagree.
In accordance with rules adopted by the Office of Indigent Defense Services, the court shall appoint counsel for the person who brings a motion under this section if that person is indigent. If the petitioner has filed pro se, the court shall appoint counsel for the petitioner in accordance with rules adopted by the Office of Indigent Defense Services upon a showing that the DNA testing may be material to the petitioner's claim of wrongful conviction.N.C. Gen. Stat. § 15A-269(c)(emphasis added). The statute very clearly requires that the petitioner first file and make the showing of materiality before counsel is appointed. Thus, the issue here is whether Defendant met the required showing. Defendant argues he did by the plain allegation that DNA testing of these items would be material to his defense, with nothing more. This is insufficient.
"The burden is on defendant to make the materiality showing required in N.C. Gen. Stat. § 15A-269(a)(1)." State v. Foster, __ N.C. App. __, __, 729 S.E.2d 116, 120 (2012). In Foster, this Court examined the defendant's motion for DNA testing and found the defendant's claim of materiality insufficient. Id. The defendant "stated only that '[t]he ability to conduct the requested DNA testing is material to the Defendant's defense.'" Id. We affirmed the trial court's dismissal of his motion because "defendant failed to establish the condition precedent to the trial court's granting his motion [for DNA testing]," namely, materiality. Id. Similarly, here, Defendant used a form motion on which the same statement of materiality appears as standard text: "The ability to conduct the requested DNA testing is material to the Defendant's defense." He provided no further elaboration on this point. Thus, consistent with our decision in Foster, we affirm the trial court's denial of appointed counsel for lack of a showing of materiality. Because Defendant failed to show materiality, he was not entitled to counsel under N.C. Gen. Stat. § 15A-269(a)(1).
Defendant next argues that the trial court's findings one and two were unsupported by the record. The trial court's first finding was that Defendant failed to show materiality; its second was that Defendant failed to show whether the evidence was previously tested or that it was but new tests would give more accurate or contradicting results. We disagree with Defendant on both points.
We have already determined that Defendant failed to meet the required showing of materiality and reiterate that holding here. Further, the statute requires that Defendant satisfy both the materiality requirement and a showing on whether the DNA has been previously tested. N.C. Gen. Stat. § 15A-269(a) (2011). Thus, because Defendant failed to show materiality, any error in the trial court's second finding is harmless. Nonetheless, the same logic applied to reach that holding above applies here with regard to the second finding.
The statute requires that Defendant either show that the evidence was not previously tested or that new tests would yield different results. N.C. Gen. Stat. § 15A-269(a)(3) (2011). Both may not apply to the same item of evidence, as this is inherently contradictory. Where both are indicated as applying generally to several items of evidence, the effect is the same as not indicating either because it is not possible to tell which circumstance applies to which piece of evidence. Here, Defendant checked both circumstances on his motion form, but failed to indicate which applied to which pieces of evidence. Thus, Defendant has failed to satisfy the condition precedent of indicating whether DNA testing has already occurred or, where it has, would yield a different result. We find no error in the trial court's findings of fact.
Last, Defendant argues that the trial court erred in determining that the Defendant was procedurally defaulted from seeking relief under N.C. Gen. Stat. § 15A-269. However, since the trial court was correct in denying the order as outlined above, we need not address this argument. Nonetheless, the trial court's reliance on N.C. Gen. Stat. § 15A-1419 as barring Defendant's claim relates not to a bar on his ability to request DNA testing at all, but a bar on his ability to request it on items of evidence that are not in evidence and that he previously moved to be disclosed with a MAR. Thus, the order is correct on both the basis that Defendant failed to meet the requirements of N.C. Gen. Stat. § 15A-269 and on the basis that even if he had met the requirements, he would be barred from introducing such evidence by N.C. Gen. Stat. §15A-1419 due to his previous MARs.
Affirmed.
Judges ELMORE and STROUD concur.
Report per Rule 30(e).