State v. Turner ( 2015 )

NO. COA14-958
NORTH CAROLINA COURT OF APPEALS
Filed: 17 February 2015
STATE OF NORTH CAROLINA,
v. Gaston County
No. 04-CRS-57497-98
Victor Lee Turner,
Defendant.
Appeal by Defendant from order entered 21 May 2014 by Judge
Jesse B. Caldwell, III in Gaston County Superior Court. Heard in
the Court of Appeals on 6 January 2015.
Attorney General Roy Cooper, by Assistant Attorney General
Laura Edwards Parker, for the State.
Don Willey for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Victor Lee Turner (“Defendant”) appeals from an order denying
his motion for postconviction DNA testing pursuant to N.C. Gen.
Stat. §§ 15A-267, 268, 269, and 270 (2013). Defendant contends
that the trial court erred in (1) denying Defendant’s motion for
DNA testing, and (2) failing to consider Defendant’s request for
the appointment of counsel pursuant to N.C. Gen. Stat. § 15A-
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269(c). For the following reasons, we find no error and affirm
the trial court’s order.
I. Factual & Procedural History
On 13 April 2005, Defendant pled guilty, in accordance with
a plea agreement, to robbery with a dangerous weapon, first degree
rape, possession of a firearm by a felon, two counts of first
degree sexual offense, crime against nature, first degree
kidnapping, and felony possession of cocaine. The facts presented
as a foundation for the plea tended to show the following.
On the evening of 27 April 2004, Penelope Jones (“Ms.
Jones”),1 an employee of the Days Inn Motel in Gastonia, reported
that she had been robbed and sexually assaulted while working as
the night shift clerk. Officers from the Gastonia Police
Department responded to the scene and, after interviewing Ms.
Jones, transported her to the hospital. There, hospital personnel
collected DNA specimens from Ms. Jones and placed the specimens
into a sexual assault evidence kit. Gastonia Police took custody
of the sexual assault evidence kit and placed it into evidence at
the police station.
Subsequent investigation led police to identify Defendant as
a suspect, and Defendant’s DNA was sent to the State Bureau of
1
The victim’s name has been changed to protect her identity.
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Investigation (“SBI”) for comparison with the DNA collected from
the scene and from Ms. Jones’ sexual assault evidence kit. A
forensic biologist with the SBI analyzed the DNA samples and
determined that the DNA profile obtained from Ms. Jones’ thigh
matched Defendant’s DNA profile. The SBI analyst further found
that the DNA profile obtained from Ms. Jones’ vaginal swab was
consistent with a mixture of DNA profiles of Ms. Jones and
Defendant. The SBI analyst’s report indicates that the DNA profile
obtained from Ms. Jones’ thigh is approximately “9.62 million
trillion times more likely to be observed if it came from
[Defendant] than if it came from another unrelated individual in
the N.C. Black population.”
On 17 May 2004, Defendant was indicted for robbery with a
dangerous weapon, first degree rape, possession of a firearm by a
felon, two counts of first degree sexual offense, crime against
nature, and first degree kidnapping. On 13 April 2005, Defendant
pled guilty to all crimes for which he was indicted, as well as an
unrelated felony possession of cocaine charge. The trial court
consolidated the convictions into two judgments and imposed
consecutive active terms of imprisonment of 61 to 83 months and
275 to 339 months.
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Eight years later, on 17 June 2013, Defendant filed a pro se
”Motion for DNA Testing” in Gaston County Superior Court, citing
N.C. Gen. Stat. §§ 15A-267, 268, 269, and 270. Defendant’s motion
alleges, inter alia, that “the ability to conduct the requested
DNA testing is material to defendant[’]s defense.”
On 21 May 2014, Superior Court Judge Jesse B. Caldwell, III
entered an order denying Defendant’s motion for DNA testing without
hearing. The trial court found that “the statutes
Defendant/Petitioner cites relate to DNA testing before trial, and
that no other legal basis exists to merit the
Defendant/Petitioner’s Motion[.]” Defendant’s written notice of
appeal was untimely filed on 16 June 2014; however, Defendant filed
a petition for writ of certiorari with this Court on 13 October
2014. We allow Defendant’s petition for writ of certiorari to
address the underlying legal issues.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to Rule 21 of the
North Carolina Rules of Appellate Procedure, which provides for
appellate review under the extraordinary writ of certiorari. “The
writ of certiorari may be issued in appropriate circumstances by
either appellate court to permit review of the judgments and orders
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of trial tribunals when the right to prosecute an appeal has been
lost by failure to take timely action.” N.C. R. App. P. 21(a)(1).
III. Standard of Review
“Our standard of review of a denial of a motion for
postconviction DNA testing is analogous to the standard of review
for a motion for appropriate relief.” State v. Gardner, ___ N.C.
App. ___, ___, 742 S.E.2d 352, 354 (2013). Therefore, the lower
court’s “[f]indings of fact are binding on this Court if they are
supported by competent evidence and may not be disturbed absent an
abuse of discretion. The lower court’s conclusions of law are
reviewed de novo.” Id.
IV. Analysis
On appeal, Defendant presents two arguments of error. First,
Defendant argues that the trial court erred in concluding that
Defendant’s “Motion for DNA Testing” cited only statutes for
pretrial DNA testing, and thus the trial court erred in denying
Defendant’s motion. Second, Defendant argues that the trial court
erred in failing to consider his request for the appointment of
counsel, in violation of N.C. Gen. Stat. § 15A-269(c). We address
these arguments in turn.
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A. Defendant’s Motion for DNA Testing
Defendant cites N.C. Gen. Stat. §§ 15A-267, 268, 269, and 270
as the legal basis for his entitlement to DNA testing. He errs in
part. The only statute relevant here is N.C. Gen. Stat. § 15A-
269. The other statutes do not apply to this case. Section 15A-
267 pertains to pretrial access to DNA samples from the crime
scene. Section 15A-268 pertains to the preservation of biological
evidence collected at the scene. Defendant’s motion does not
contend that the evidence in this case has been improperly
preserved. Section 15A-270 pertains to post-test procedures after
the trial court grants a motion for postconviction DNA testing.
Therefore, we need only analyze Defendant’s legal claims under
N.C. Gen. Stat. § 15A-269, which addresses requests for
postconviction DNA testing.
N.C. Gen. Stat. § 15A-269 provides:
(a) A defendant may make a motion before the
trial court . . . 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
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accurate and probative of the
identity of the perpetrator or
accomplice or have a reasonable
probability of contradicting prior
test results.
N.C. Gen. Stat. § 15A-269 (2013). By the plain language of the
statute, the burden is on the defendant to make the required
showing under each subsection (1), (2), and (3) before the trial
court. As in a proceeding for a postconviction motion for
appropriate relief, “the moving party has the burden of proving by
the preponderance of the evidence every fact to support his
motion.” State v. Adcock, 310 N.C. 1, 37, 310 S.E.2d 587, 608
(1983). Absent the required showing, the trial court is not
statutorily obligated to order postconviction DNA testing. See
State v. Foster, ___ N.C. App. ___, ___, 729 S.E.2d 116, 120
(2012); see also State v. McLean, ___ N.C. App. ___, ___, 753
S.E.2d 235, 239 (2014) (so holding in the context of pretrial
motions for DNA testing).
With regard to the materiality element set forth in section
(a)(1), we held in State v. Gardner that “where a motion brought
under [subsection (a)(1)] provided no indication of how or why the
requested DNA testing would be material to the petitioner’s
defense, the motion was deficient and it was not error to deny the
request for the DNA testing.” ___ N.C. App. at ___, 742 S.E.2d at
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354 (2013); see also Foster, ___ N.C. App. at ___, 729 S.E.2d at
120. In Gardner, the defendant pled guilty to fifteen counts of
statutory rape. Gardner, ___ N.C. App. at ___, 742 S.E.2d at 353.
The trial court consolidated judgment and sentenced the defendant
to 173 to 217 months imprisonment. Id. Eleven years later, the
defendant filed a pro se motion for postconviction DNA testing.
Id. In his motion, with regard to the materiality element, the
defendant asserted only the conclusory statement that DNA testing
would be material to his defense. Id. at ___, 742 S.E.2d at 356.
This Court upheld the trial court’s denial of the defendant’s
motion for postconviction DNA testing, holding that the
defendant’s burden of showing materiality requires more than a
conclusory statement. Id.
This case is indistinguishable from Gardner. Here,
Defendant’s motion for DNA testing contains only the following
conclusory statement regarding materiality: “The ability to
conduct the requested DNA testing is material to defendant[’]s
defense[.]” This is the identical conclusory statement that was
used by the defendants in Gardner and Foster. As in Gardner and
Foster, we hold that Defendant’s motion in this case is
insufficient to satisfy his burden under N.C. Gen. Stat. § 15A-
269. Because we find that Defendant failed to establish a
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condition precedent to the trial court’s authority to grant his
motion (i.e., materiality), we do not reach the State’s argument
that a defendant can never establish materiality for
postconviction DNA testing after entering a guilty plea.
While the trial court correctly denied Defendant’s motion for
DNA testing, we recognize that the trial court’s reasoning for
reaching that conclusion was somewhat flawed. The trial court’s
order denying Defendant’s motion states that “the statutes
Defendant/Petitioner cites relate to DNA testing before trial, and
that no other legal basis exists to merit the
Defendant/Petitioner’s Motion.” This conclusion is erroneous, as
Defendant’s motion clearly cites N.C. Gen. Stat. § 15A-269 as one
legal basis for his motion—a statute providing exclusively for
requests for postconviction DNA testing. Nevertheless, because
the trial court reached the correct conclusion—that Defendant’s
motion for DNA testing should be denied—we affirm its order.
“[E]ven if dismissal was for the wrong reason, a trial court’s
ruling must be upheld if it is correct upon any theory of law, and
thus it should not be set aside merely because the court gives a
wrong or insufficient reason for [it].” Templeton v. Town of
Boone, 208 N.C. App. 50, 54, 701 S.E.2d 709, 712 (2010) (internal
quotation marks omitted); see also Payne v. Buffalo Reinsurance
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Co., 69 N.C. App. 551, 555, 317 S.E.2d 408, 411 (1984) (“[A]
judgment that is correct must be upheld even if it was entered for
the wrong reason.”).
Therefore, we affirm the result of the trial court denying
Defendant’s motion for DNA testing.
B. Defendant’s Request for Appointment of Counsel
Defendant’s second and final argument on appeal is that the
trial court erred in failing to consider Defendant’s request for
the appointment of counsel pursuant to N.C. Gen. Stat. § 15A-
269(c), which provides that
[i]n 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) (2013). Defendant argues that,
pursuant to this statute, the trial court should have either
appointed him counsel or held a hearing to determine whether DNA
testing “may be material to [his] claim of wrongful conviction.”
However, in Gardner, we rejected this identical argument. In
Gardner, we held that “ ‘[a]ccording to the plain language of the
statute, a trial court is required to appoint counsel for a
defendant bringing a motion under this section only if the
defendant makes a showing (1) of indigence and (2) that the DNA
testing is material to defendant’s claim that he or she was
wrongfully convicted.’ ” Gardner, ___ N.C. App. at ___, 742 S.E.2d
at 355 (quoting State v. Barts, 204 N.C. App. 596, 696 S.E.2d 923,
2010 WL 2367302, at *1 (June 15, 2010) (unpublished)). Therefore,
an indigent defendant must make a sufficient showing of materiality
before he is entitled to appointment of counsel. Id. at ___, 742
S.E.2d at 355 (“[I]n order to support the appointment of counsel
pursuant to N.C. Gen. Stat. § 15A-269(c), a convicted criminal
defendant must make an allegation addressing the materiality issue
that would, if accepted, satisfy N.C. Gen. Stat. § 15A-
269(a)(1).”).
Here, because we hold that Defendant has not met his burden
of showing materiality under N.C. Gen. Stat. § 15A-269(a)(1), he
is not entitled to the appointment of counsel, and the trial court
did not err in failing to consider his request for counsel.
V. Conclusion
For the foregoing reasons, we affirm the order of the trial
court denying Defendant’s motion for DNA testing.
Affirmed.
Judges BRYANT and STROUD concur.