State v. Collins , 234 N.C. App. 398 ( 2014 )

NO. COA13-1043
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Craven County
No. 03 CRS 56121
ELWOOD WARREN COLLINS
Appeal by Defendant from Order entered 11 April 2013 by
Judge Benjamin G. Alford in Craven County Superior Court. Heard
in the Court of Appeals 22 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Parker, for the State.
Richard J. Costanza for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
This case arises from Defendant Elwood Warren Collins’s
motion for post-conviction DNA testing. On 22 October 2003,
Defendant was indicted for first-degree murder in the death of
Christina Lee. On 6 May 2005, Defendant pled guilty to second-
degree murder pursuant to the United States Supreme Court’s
opinion in North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d
162 (1970) (determining that a court may accept a plea of guilty
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to second-degree murder when the State has strong evidence of
guilt of first-degree murder even though the defendant claims
that he is innocent, if the defendant, represented by competent
counsel, intelligently concludes that he should plead guilty to
second-degree murder rather than be tried for first-degree
murder). As a result, the trial court sentenced Defendant in the
presumptive range to an active term of 157 to 198 months in
prison.
More than four years later, on 28 December 2009, Defendant
filed a pro se motion seeking post-conviction DNA testing on
certain items of evidence related to Lee’s death. The trial
court appointed counsel to represent Defendant on 10 February
2010, and Defendant filed an amended affidavit in support of his
motion for genetic testing on 24 March 2010. The State filed an
answer contesting Defendant’s motion on 7 December 2012.1 A
proceeding on the motion was held on 12 March 2013, and counsel
appeared for both sides. According to the trial court, the
proceeding was conducted to determine “whether . . .
[Defendant’s] motion meets the threshold requirements of the
statute, and if so, record a hearing [at] which time the State
1
The record contains no explanation for the remarkable delay in
the filing of the State’s answer.
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and [D]efendant will be allowed to present further evidence in
support of their positions.”
The parties have stipulated that they appeared before the
trial court two days later, on 14 March 2013, “to address the
request for post[-]conviction DNA testing.” According to this
stipulation, “[t]he parties agreed that [the trial court] could
make a ruling based on the motion itself and the State’s
response.” That afternoon, the trial court contacted counsel for
the parties by e-mail, indicating that Defendant’s motion was
denied and stating that
Defendant has failed to show how the DNA
material to be tested is material to his
defense or what th[e] ‘newer and more
accurate testing’ consists of or how said
results would be significantly more accurate
and probative of the identity of the
perpetrator. The mere mouthing of these
conclusory statements, absent more, [is]
insufficient to carry . . . [D]efendant’s
burden on this issue.
The e-mail directed the State to draft an order denying the
motion, which would be circulated to defense counsel and then
executed by the trial court. The court entered its written order
denying the motion on 11 April 2013. Defendant appeals.
Discussion
On appeal, Defendant argues (1) that the trial court’s 11
April 2013 order is null and void for lack of jurisdiction, or,
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alternatively, (2) that the trial court erred in denying
Defendant’s motion for post-conviction DNA testing. We disagree.
I. Jurisdiction
Whether a trial court has subject-matter
jurisdiction is a question of law, reviewed
de novo on appeal. Subject-matter
jurisdiction involves the authority of a
court to adjudicate the type of controversy
presented by the action before it. Subject-
matter jurisdiction derives from the law
that organizes a court and cannot be
conferred on a court by action of the
parties or assumed by a court except as
provided by that law. When a court decides a
matter without the court’s having
jurisdiction, then the whole proceeding is
null and void, i.e., as if it had never
happened.
McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592
(2010) (citations and internal quotation marks omitted; italics
added).
Defendant argues that the trial court’s 11 April 2013 order
is null and void for lack of jurisdiction because it was filed
out of session and without his consent. In making this argument,
Defendant points out that the proceedings on 12 and 14 March
2013 were held during the 11 March 2013 Criminal Session of
Craven County Superior Court, which concluded well before the
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trial court filed its 11 April 2013 written order.2 For support,
Defendant cites our Supreme Court’s opinion in State v. Trent,
which held that:
[A]n order of the superior court, in a
criminal case, must be entered during the
term, during the session, in the county[,]
and in the judicial district where the
hearing was held.3 Absent consent of the
parties, an order entered in violation of
these requirements is null and void and
without legal effect.
2
For purposes of addressing Defendant’s argument, we take
judicial notice of the Division II calendar of superior courts
for the spring 2013 term, available at
http://www.nccourts.org/Courts/
CRS/Calendars/Documents/spring2013-statewide.pdf. See generally
Baker v. Varser, 239 N.C. 180, 186, 79 S.E.2d 757, 761–62 (1954)
(taking judicial notice of the assignment of trial judges to
hold court). According to the information in that calendar,
Judge Alford was assigned to Superior Court Division II,
judicial district 3B. The spring term was set to begin January 7
and end July 1. Beginning 11 March 2013, Judge Alford was
scheduled to hold the criminal and civil sessions of Craven
County Superior Court, which were set to last for one week.
Judge Alford was also scheduled to preside over the 18 March
2013 civil and criminal sessions of Craven County Superior
Court, which were set to last for another week. Craven County
Superior Court was not in session during the week of 8 April
2013, and Judge Alford was assigned instead to preside over the
criminal and civil sessions of Carteret County Superior Court.
3
“The use of ‘term’ has come to refer to the typical six-month
assignment of superior court judges, and ‘session’ to the
typical one-week assignments within the term.” Capital Outdoor
Advertising, Inc. v. City of Raleigh, 337 N.C. 150, 154 n. 1,
446 S.E.2d 289, 291 n. 1 (1994).
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359 N.C. 583, 585, 614 S.E.2d 498, 499 (2005). We are not
persuaded by Defendant’s argument.
In Trent, the defendant was charged with and convicted of
robbery with a dangerous weapon. Id. at 584, 614 S.E.2d at 499.
Before trial, the defendant filed two motions to suppress. Id. A
hearing on the motions was held on 11 October 2001 and continued
to 17 January 2002. Id. The trial court declined to rule at the
end of the January hearing and announced its determination seven
months later, in the following term, denying the defendant’s
motions. Id. The defendant appealed, and our Supreme Court
granted a new trial because the court’s order was “null and void
since it was entered out of term and out of session.” Id. at
586, 614 S.E.2d at 500.
In so holding, the Trent Court relied on its previous
opinion in State v. Boone, 310 N.C. 284, 287–88, 311 S.E.2d 552,
555 (1984). The defendant in Boone was charged with felonious
manufacturing of a controlled substance and felonious possession
of more than one ounce of marijuana. Id. at 284–85, 311 S.E.2d
at 553. He was convicted of the latter. Id. at 285, 311 S.E.2d
at 553. Prior to trial, he moved to suppress the marijuana in a
motion heard on 16 and 18 June 1981. Id. at 286, 311 S.E.2d at
554. The trial court denied the motion by order signed in the
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following session, on 25 June 1981. Because the order was signed
outside the session in which the motion was heard, our Supreme
Court determined that the defendant was entitled to a new trial.
Id. at 286–87, 311 S.E.2d at 554–55. In so holding, the Court
cited the following general rule:
Judgments and orders substantially affecting
the rights of parties to a cause pending in
the Superior Court at a term must be made in
the county and at the term when and where
the question is presented, and our decisions
on the subject are to the effect that,
except by agreement of the parties or by
reason of some express provision of law,
they cannot be entered otherwise, and
assuredly not in another district and
without notice to the parties interested.
Id. at 287, 311 S.E.2d at 555 (citation and brackets omitted)
(noting that this rule has been consistently applied in both
criminal and civil cases).
In the time between the Court’s opinions in Boone and
Trent, our Supreme Court authored a third opinion, Capital
Outdoor Advertising, Inc. v. City of Raleigh, 337 N.C. at 159,
446 S.E.2d at 294 [hereinafter Capital Outdoor]. In Capital
Outdoor, the plaintiffs filed a complaint challenging the
constitutionality of a city ordinance. Id. at 153, 446 S.E.2d at
291. The defendant moved to dismiss the complaint under Rule
12(b)(6), and the motion was heard on 29 October 1991, during
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the 28 October 1991 session. Id. at 154, 446 S.E.2d at 292. The
trial court granted the motion on 4 November 1991, after the
expiration of the previous session. Id. Relying on the “ample
power” of the legislature “to establish, define[,] and limit the
jurisdiction of the Superior Courts,” the Supreme Court affirmed
the trial court’s out-of-session order under section 7A-47.1 and
Rule 6(c) of the Rules of Civil Procedure as “two separate
statutes authorizing the execution and entry of the dismissal
order of the trial judge out of session . . . .” Id. at 155–59,
446 S.E.2d at 292–94. Capital Outdoor is controlling precedent
in this case.
As a preliminary matter, we note the apparent contradiction
in these three cases. Boone stated that orders entered out of
session and out of term are invalid based on absence of the
trial court’s jurisdiction and held that the out-of-session
order in that case was invalid for the same reason. Boone, 310
N.C. at 287–88, 311 S.E.2d at 555. Capital Outdoor implicitly
overruled Boone as it pertains to orders entered out of session.
Capital Outdoor, 337 N.C. at 158, 446 S.E.2d at 294. Trent later
applied Boone to determine that the trial court erred by
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entering its order “out of term and out of session.”4 Though the
language in Trent suggests that it was reinstating Boone in its
entirety, the holding in that case is limited to an order
entered out of term. Trent, 359 N.C. at 586, 614 S.E.2d at 500.
Relying on established principles of stare decisis, we read
these cases together to the extent that they represent a
reasonable, practicable, and stable interpretation of the law.
See Bulova Watch Co. v. Brand Distribs. of N. Wilkesboro, Inc.,
285 N.C. 467, 473, 206 S.E.2d 141, 145–46 (1974) (“The law must
be characterized by stability if [people] are to resort to it
for rules of conduct. These considerations have brought forth
the salutary doctrine of stare decisis which proclaims, in
effect, that where a principle of law has become settled by a
series of decisions, it is binding on the courts and should be
followed in similar cases.”). Applying those principles to
Boone, Capital Outdoor, and Trent, the resulting rule is that
the superior court is divested of jurisdiction when it issues an
out-of-term order substantially affecting the rights of the
parties unless that order is issued with the consent of the
parties. If the court issues an order out of session, however,
4
The Trent Court was clearly aware of the Capital Outdoor
opinion, citing it for the definition of “term” and “session.”
Trent, 359 N.C. at 585, 614 S.E.2d at 499.
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the court is not divested of jurisdiction as long as either
section 7A-47.1 or Rule 6(c) is applicable. See Trent, 359 N.C.
at 586, 614 S.E.2d at 500; Capital Outdoor, 337 N.C. at 158, 446
S.E.2d at 294.
Rule 6(c) has no bearing on this case. It is a rule of
civil procedure, and this is a criminal matter. However, section
7A-47.1 is a general rule of judicial procedure and applies to
both criminal and civil cases. See N.C. Gen. Stat. § 7A-2(1)
(stating that the purpose of Chapter 7A is to create a place for
“all statutes concerning the organization, jurisdiction[,] and
administration of each division of the General Court of
Justice”). In Capital Outdoor, the Court stated that section 7A-
47.1 and Rule 6(c) are separate authorities for an order entered
out of session. Therefore, either may be used to establish the
trial court’s jurisdiction, if applicable. Here, section 7A-47.1
applies to validate the trial court’s out-of-session order.
Section 7A-47.1, entitled “[j]urisdiction in vacation or in
session,” provides as follows:
In any case in which the superior court in
vacation has jurisdiction, and all the
parties unite in the proceedings, they may
apply for relief to the superior court in
vacation, or during a session of court, at
their election. Any regular resident
superior court judge of the district or set
of districts as defined in G.S. 7A-
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41.1(a)5 and any special superior court judge
residing in the district or set of districts
and the judge regularly presiding over the
courts of the district or set of districts
have concurrent jurisdiction throughout the
district or set of districts in all matters
and proceedings in which the superior court
has jurisdiction out of session; provided,
that in all matters and proceedings not
requiring a jury or in which a jury is
waived, any regular resident superior court
judge of the district or set of districts
and any special superior court judge
residing in the district or set of districts
shall have concurrent jurisdiction
throughout the district or set of districts
with the judge holding the courts of the
district or set of districts and any such
regular or special superior court judge, in
the exercise of such concurrent
jurisdiction, may hear and pass upon such
matters and proceedings in vacation, out of
session or during a session of court.
N.C. Gen. Stat. § 7A-47.1 (2013) (re-codified in 1969 from N.C.
Gen. Stat. § 7-65).
“[I]n vacation” jurisdiction, as described in section 7A-
47.1, arises from the trial court’s
general jurisdiction of all “in chambers”
matters arising in the district. The general
“vacation” or “in chambers” jurisdiction of
a regular judge arises out of his general
authority. Usually it may be exercised
5
“Regular resident superior court judge of the district or set
of districts” means a regular superior court judge who is a
resident judge of any of the superior court districts
established under section 7A-41. N.C. Gen. Stat. § 7A-41.1
(2013).
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anywhere in the district and it is never
dependent upon and does not arise out of the
fact that [the judge] is at the time
presiding over a designated term of court or
in a particular county. As to [the judge],
it is limited, ordinarily, to the district
to which he is assigned by statute.
Baker v. Varser, 239 N.C. 180, 188, 79 S.E.2d 757, 763 (1954)
(citations and internal quotation marks omitted). The Baker
court’s description is based on a prior version of section 7A-
47.1, then-codified as section 7-65. See Baker, 239 N.C. at 187–
88, 79 S.E.2d at 763; see also 1969 N.C. Sess. Laws 1377, ch.
1190, sec. 47 (re-codifying section 7-65 as section 7A-47.1).
Section 7-65 is substantially similar to section 7A-47.1 except
that the word “session,” as used in 7A-47.1, was written as
“term” or “term time” in section 7-65. See Baker, 239 N.C. at187–88, 79 S.E.2d at 763. The change from “term” and “term time”
to “session” tracks the 1962 amendments to the North Carolina
Constitution, which “changed the word ‘term’ to ‘session’ when
referring to the period of time during which superior court
judges are assigned to court . . . .” See Capital Outdoor, 337
N.C. at 154 n.1, 446 S.E.2d at 291 n.1; see also N.C. Const.
art. IV, § 9(2). This change comports with the rule discussed
above, i.e., that in vacation jurisdiction applies only to
orders entered out of session, not those entered out of term.
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We note that Baker’s description of in chambers
jurisdiction, stating that the exercise of such jurisdiction is
not dependent on the judge’s presence in the county, conflicts
in part with our opinion in House of Style Furniture Corp. v.
Scronce, where we cited the
uniform holding in this jurisdiction that,
except by consent, or unless authorized by
statute, a judge of the [s]uperior [c]ourt,
even in his own district, has no authority
to hear a cause or to make an order
substantially affecting the rights of the
parties, outside the county in which the
action is pending.
33 N.C. App. 365, 369, 235 S.E.2d 258, 260 (1977) (citing Bisnar
v. Suttlemyre, 193 N.C. 711, 138 S.E. 1 (1927)) [hereinafter
House of Style]. Nonetheless, House of Style is not controlling
in this case.
The plaintiffs in House of Style filed their complaint in
Alexander County on 24 September 1975. Id. at 366, 235 S.E.2d at
259. The following year, the defendants moved to dismiss the
plaintiff’s claims and for entry of default judgment. Id. That
motion was heard in Iredell County before a judge of judicial
district 22, which included both Alexander County and Iredell
County. Id. Six days after the hearing, the trial court filed
its order dismissing the plaintiffs’ claims and entering default
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judgment.6 Id. at 367, 235 S.E.2d at 259. On appeal, we vacated
the trial court’s order and judgment because we could not find
any statute authorizing the trial judge to conduct a hearing out
of county. Id. at 369, 235 S.E.2d at 261 (“[The parties] did not
consent for the motion to be heard in Iredell County[,] and our
research fails to disclose any statute authorizing [the judge]’s
action in that county.”).
Though House of Style was filed seventeen years after
Baker, it does not discuss that opinion. See id. In addition,
neither House of Style nor its cited authority, Bisnar,
discusses section 7A-47.1 or its predecessor, section 7-65. See
id.; see also Bisnar, 193 N.C. at 711, 138 S.E. at 1. Instead,
the House of Style Court relies on the “uniform holding”
described above. See House of Style, 33 N.C. App. at 369, 235
S.E.2d at 260. This Court is bound by House of Style as it
pertains to orders in criminal cases arising from hearings
occurring out of county.7 In re Civil Penalty, 324 N.C. 373, 384,
6
Neither our opinion in House of Style nor the record on file
for that case specifies whether the trial court filed its order
in Alexander County or Iredell County. See id.; 909 N.C. App.
Records and Briefs No. 7622SC901, 59–65 (1976).
7
Rule 7(b) of the North Carolina Rules of Civil Procedure was
amended in 2005 to allow motions heard out of county. 2005 N.C.
Sess. L. 163, H.B. 514, section 1. The wording was changed in
2011 to specifically allow motions “in a civil action in a
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379 S.E.2d 30, 36–37 (1989). House of Style provides no
direction, however, on the validity of an order in a criminal
case arising from a valid hearing, but entered while the judge
is sitting in another county. See House of Style, 33 N.C. App.
at 369, 235 S.E.2d at 260. Therefore, pursuant to our
discussion, supra, we conclude that section 7A-47.1 constitutes
statutory authority to justify an order entered in a criminal
case while the judge who heard the case in the proper county is
sitting in another county within the district when the order is
entered. See N.C. Gen. Stat. § 7A-47.1. As a result, House of
Style has no impact on this case because Defendant’s motion was
properly heard in Craven County. Accordingly, Judge Alford’s
out-of-session order is proper even though it was issued while
he was sitting in Carteret County.
Finally, we point out that in chambers jurisdiction under
section 7A-47.1 does not require the consent of the parties. E-B
Grain Co. v. Denton, 73 N.C. App. 14, 24, 325 S.E.2d 522, 528–29
county that is a part of a multicounty judicial district” to be
heard in another county “which is part of that same judicial
district with the permission of the senior resident superior
court judge of that district . . . .” 2011 N.C. Sess. Laws 317,
S.B. 586, section 1. Therefore, our opinion in House of Style is
no longer applicable in civil cases as long as the senior
resident superior court judge permits the case to be heard out
of county. See N.C.R. Civ. P. 7(b)(4) (2013).
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(1985) (“We believe [the trial court judge] clearly had
authority under [section] 7A-47.1 to hear [the] plaintiff’s
motion . . . , even though [the] defendant’s counsel objected.
To interpret the statute [according to Defendant’s argument]
would mean that no superior court judge could hear any matter,
whether in or out of session, without ‘all the parties uniting
in the proceedings.’”). Therefore, as provided by section 7A-
47.1, a trial court may exercise in chambers jurisdiction in a
nonjury matter arising in his or her district to enter an order
out of session and without the consent of the parties. See N.C.
Gen. Stat. § 7A-47.1; Capital Outdoor, 337 N.C. at 158, 446
S.E.2d at 294.
Here, there is no evidence in the record to indicate that
the parties consented to the trial court’s entry of its 11 April
2013 order out of session. Nonetheless, Defendant’s motion for
post-conviction DNA testing did not require the presence of a
jury, the hearing on the motion was conducted while Judge Alford
was sitting in Craven County Superior Court, and Judge Alford
remained in District II at the time he filed the written order.
For these reasons, section 7A-47.1 operated to allow the trial
court to issue this out-of-session order. Accordingly,
Defendant’s first argument is overruled.
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II. Defendant’s Motion for Post-Conviction DNA Testing
The standard of review for the denial of a motion for post-
conviction DNA testing is
analogous to the standard of review for a
motion for appropriate relief. Findings 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.
State v. Gardner, __ N.C. App. __, __, 742 S.E.2d 352, 354
(2013). At the hearing on a motion for appropriate relief, the
defendant has “the burden . . . of establishing the facts
essential to his claim by a preponderance of the evidence.”
State v. Hardison, 143 N.C. App. 114, 120, 545 S.E.2d 233, 237
(2001) (citation and internal quotation marks omitted). A
conclusory statement, alone, is not sufficient to satisfy this
burden. Gardner, __ N.C. App. at __, 742 S.E.2d at 356 (stating
that the defendant’s burden of showing materiality in a motion
for post-conviction DNA testing “requires more than [a]
conclusory statement that the ability to conduct the requested
DNA testing is material to [his] defense”) (citations, internal
quotation marks, and brackets omitted).
On appeal, Defendant argues that the trial court’s order
should be reversed because his motion and amended affidavit,
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together, demonstrated the necessary conditions for the court to
grant his motion for post-conviction DNA testing under section
15A-269. In response, the State asserts that section 15A-269 is
not applicable in this case. Alternatively, the State contends
that Defendant failed to show how DNA testing was material to
his case and failed to demonstrate that there are “newer and
more accurate tests that would be significantly more accurate
and probative of the identity of the [true] perpetrator.”
Finally, the State argues that — even if the allegations in the
affidavit support a finding of materiality — Defendant waived
his right to test any evidence before a jury by entering an
Alford guilty plea. We affirm the trial court’s order on grounds
that Defendant failed to adequately establish that newer and
more accurate tests would identify the perpetrator or contradict
prior test results. We do not address the State’s argument that
Defendant is not entitled to post-conviction DNA testing because
he entered an Alford plea.
(1) Background
Under section 15A-269,
(a) A defendant may make a motion . . . for
performance of DNA testing . . . if the
biological evidence meets all of the
following conditions:
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(1) [The evidence is] material to the
defendant’s defense.
(2) [The evidence is] related to the
investigation or prosecution that
resulted in the judgment.
(3) [The evidence 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 . . .
subsection (a) . . . 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.
N.C. Gen. Stat. § 15A-269 (2013) (emphasis added).
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Given the allegations in Defendant’s motion and amended
affidavit,8 the trial court made the following pertinent findings
of fact and conclusion of law:
10. . . . [D]efendant has failed stated
[sic] how . . . additional DNA testing would
be material to his defense. . . .
[D]efendant merely makes a conclusory
statement.
11. . . . [D]efendant has failed to show how
“newer and more accurate testing” [w]ould be
significantly more accurate and probative of
the identity of the perpetrator.
. . . .
. . . [D]efendant has failed to meet all
requirements of § 15A-269.
On appeal, Defendant concedes that the statements in his
pro se motion are insufficient to justify post-conviction DNA
testing under section 15A-269, but argues that the additional
statements in his amended affidavit sufficiently “discuss [his]
reasoning for entering his Alford plea, the DNA mixture that did
not exclude or isolate him, his cohabitation with the victim,
and his understanding that more accurate methods of DNA testing
8
Though the State does not contest the propriety of Defendant’s
amended affidavit, we note that amendments to the analogous
motion for appropriate relief are permissible under N.C. Gen.
Stat. § 15A-1415. Thus, amendments to a motion for post-
conviction DNA testing are similarly permissible pursuant to
standards prescribed in section 15A-1415.
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are now available” to justify relief under section 15A-269. We
disagree.
(2) Applicability of Section 15A-269
The State argues that section 15A-269 is not applicable in
this case because Defendant seeks testing to show a lack of
biological evidence. For support, Defendant cites to our opinion
in State v. Brown, where we commented that section 15A-269
“provides for testing of ‘biological evidence’ and not evidence
in general.” 170 N.C. App. 601, 609, 613 S.E.2d 284, 289 (2005),
superseded by statute on other grounds, State v. Norman, 202
N.C. App. 329, 332–33, 688 S.E.2d 512, 515 (2010). This argument
is without merit.
In Brown, the defendant, a former assistant principal, was
indicted for and convicted of attempted second-degree rape of a
former student. Id. at 602, 613 S.E.2d at 285. Defendant did not
appeal that conviction. Id. at 603, 613 S.E.2d at 285. As a
result, evidence in the form of a torn blouse and pants was
turned over to the local police department. Id. Five months
later, Defendant filed a motion for post-conviction DNA testing
of a torn blouse, a pair of pants, an undergarment, nail
clippings and hair samples, and other items related to his
conviction. Id. at 603, 609, 613 S.E.2d at 285, 288–89. Despite
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this motion, the blouse and jeans were destroyed after the
victim indicated that she did not want them returned. Id. The
other evidence had never been collected and was not available
for testing. See id. at 603–04, 613 S.E.2d at 286. One month
later, the trial court denied the defendant’s motion because “no
. . . testing could be conducted.” Id. at 603, 613 S.E.2d at
286.
On appeal, this Court declined to review the trial court’s
decision because Article 13, which deals with the DNA database
and databank, did not at that time include a provision for
appellate review of an order denying post-conviction DNA
testing.9 Id. at 607, 613 S.E.2d at 287. After concluding that we
had no authority to review the defendant’s petition for writ of
certiorari, we also declined to review the matter pursuant to
Rule 2 of the North Carolina Rules of Appellate Procedure. Id.
at 608, 613 S.E.2d at 288. In so holding, we explained that no
manifest injustice was present in the case because the defendant
was asking for testing to “show a lack of DNA evidence, thereby
corroborating his testimony[, which denied the allegations made
at trial].” Id. at 609, 613 S.E.2d at 288–89. Commenting that
9
Appellate review of an order denying a defendant’s motion for
DNA testing is now appealable as of right under section 15A-
270.1 (2013).
-23-
section 15A-269 did not apply when a defendant seeks to
demonstrate a “lack of biological evidence” and noting that the
defendant was only charged with attempted rape, not actual rape,
we concluded that “the absence of DNA evidence would not
necessarily exonerate [the] defendant.” Id. at 609, 613 S.E.2d
at 289.
Unlike the defendant in Brown, Defendant here is seeking
“[a] conclusive test on the biological and other samples taken
into evidence in this matter.” He is not seeking to show a lack
of DNA evidence. Accordingly, Brown does not operate to bar
Defendant’s motion.
(3) Accuracy and Probative Value of Newer Tests
The State also argues that the trial court properly denied
Defendant’s motion because Defendant failed to demonstrate “how
‘newer and more accurate testing’ would be significantly more
accurate and probative of the identity of the perpetrator.” We
agree.
In his pro se motion for post-conviction DNA testing,
Defendant referenced discussions with “DNA [e]xperts,” described
a “new technique known as ‘Touch DNA’ that allows [f]or the
amplification and analysis of very minute amounts [o]f cellular
/ DNA material,” and alleged that the items sought to be tested
-24-
“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 [o]r accomplice, or
have a reasonable probability of . . . contradicting prior test
results.” In his amended affidavit, Defendant provided the
following additional information:
7. It is my understanding that, since 2003
when this case was initiated, more
accurate methods of DNA testing have been
developed and put in place in forensic
laboratories, and such methods would have
a reasonable probability of contradicting
the prior test results.
8. Had more accurate DNA testing methods
excluded me as the perpetrator of this
crime, the result of this case would have
been different, inasmuch as I would not
have entered an Alford guilty plea, but
would have submitted the matter to a jury
at trial.
These allegations do not establish that the requested DNA tests
are “significantly more accurate and probative of the identity
of the perpetrator or accomplice or have a reasonable
probability of contradicting prior test results” under section
15A-269(a)(3)(b).
As we noted in State v. Foster, a mere conclusory statement
is insufficient to establish materiality. __ N.C. App. __, __,
729 S.E.2d 116, 120 (2012). Similarly, such a statement is
-25-
insufficient to establish that a 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. See id. Rather, the defendant must provide specific
reasons that the requested DNA test would be significantly more
accurate and probative of the identity of the perpetrator or
accomplice or that there is a reasonable probability of
contradicting the previous test results. See N.C. Gen. Stat. §
15A-269.
In this case, Defendant’s mere allegations that “newer and
more accurate testing” methods exist, “which would provide
results that are significantly more accurate and probative of
the identity of the perpetrator [o]r accomplice, or have a
reasonable probability of . . . contradicting prior test
results” are incomplete and conclusory. Even though he named a
new method of DNA testing, he provided no information about how
this method is different from and more accurate than the type of
DNA testing used in this case. Without more specific detail from
Defendant or some other evidence, the trial court could not
adequately determine whether additional testing would be
significantly more accurate and probative or have a reasonable
-26-
probability of contradicting past test results. For these
reasons, we conclude that the court properly denied Defendant’s
motion for post-conviction DNA testing. Accordingly, Defendant’s
second argument is overruled, and the trial court’s order is
AFFIRMED.
Judges STEELMAN and DAVIS concur.