State v. McLean ( 2014 )

NO. COA13-693
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Guilford County
Nos. 08 CRS 86532–33, 35–36,
39; 87623
LUCIUS ELWOOD MCLEAN
Appeal by defendant from judgments entered 21 August 2012 by
Judge William Z. Wood, Jr. in Guilford County Superior Court.
Heard in the Court of Appeals 6 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Ward Zimmerman, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Andrew DeSimone, for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Following final judgments as to the charges against him,
Lucius Elwood McLean (“Defendant”) appeals a pre-trial order
entered 4 March 2010 by Judge Ronald E. Spivey in Guilford County
Superior Court. The challenged order denied Defendant’s pre-trial
motion for DNA testing pursuant to N.C. Gen. Stat. § 15A-267(c)
(2013). Defendant contends that the trial court erred as a matter
of law in denying his motion because the absence of his DNA on
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shell casings found at the scene, if established, would have been
relevant to the State’s investigation and material to his defense.
For the following reasons, we find no error and affirm the trial
court’s order.
I. Factual & Procedural History
On 20 August 2012, Defendant was convicted on two counts of
attempted first-degree murder, two counts of assault with a deadly
weapon with the intent to kill inflicting serious injury, one count
of discharging a firearm into an occupied building, and one count
of possession of a firearm after having been convicted of a felony.1
The evidence presented at trial tended to show the following.
On 16 April 2008, Defendant agreed to rent commercial property
located at 2801 Patterson Avenue in Greensboro from Stuart Elium
(“Mr. Elium”). Defendant indicated that he needed the property to
open an arcade. Defendant gave Mr. Elium a down payment and
entered the space. Mr. Elium testified that Defendant arrived at
their meeting in a “bronzish Jaguar.”
Immediately next door to Defendant’s property was an
established night club operated by Reginald Green (“Mr. Green”)
called “Club Touch.” Mr. Green also rented from Mr. Elium. Club
Touch generally operated between 10 p.m. and 2 a.m. and served
1 Defendant stipulated to a prior felony conviction at trial.
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liquor. Derry George (“Mr. George”) was the club’s manager.
Robert Willis (“Mr. Willis”) and Mark Stephens (“Mr. Stephens”)
worked security.
On 17 April 2008, Mr. George arrived for work between 7 and
8 p.m. and noticed a group of men sitting outside the club next to
Defendant’s property. When Mr. George went inside Club Touch, he
noticed that a break-in had occurred and that equipment had been
stolen. Mr. George called the police, who investigated the break-
in and questioned the men sitting outside Defendant’s property.
The men told the police that they were waiting on someone to come
let them into Defendant’s building.
An hour or so later, Defendant arrived on the scene and spoke
to Mr. George about the incident. Mr. George testified that
Defendant’s men were upset about being questioned in connection to
the break-in, so Mr. George wanted to let Defendant know that there
were no hard feelings. Defendant was cordial to Mr. George and
the two talked about Defendant’s plan for opening a business next
door. Defendant told Mr. George that he wanted to open a “2 to
6”—meaning that Defendant’s establishment would be open from 2
a.m. to 6 a.m. and be a place where Club Touch’s patrons could go
after the club closes. After their conversation, Mr. George
telephoned Mr. Green to inform him of Defendant’s plans and
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expressed concern that Defendant’s proposed business might affect
Club Touch’s liquor license.
At around 10 p.m. that same night, Defendant and his men
placed balloons and a sign outside their building that read “The
Party is Here” and played music loudly from their establishment.
Mr. George indicated that Defendant arrived that evening in a
“gold-colored” Jaguar. Mr. George and Mr. Willis testified that
as the night was coming to an end, Defendant and his men approached
Club Touch and yelled, “We’re hood around here” and “It’s hood out
here. Going to be real.”
The next morning, Mr. Green called Mr. Elium to discuss what
had happened. Thereafter, Mr. Elium informed Defendant that their
rental arrangement was not going to work out. Mr. Elium returned
Defendant’s money, reclaimed the keys to the property, and assisted
Defendant in vacating the premises.
On 20 April 2008, at approximately 2:45 a.m., multiple cars
arrived at Club Touch, circled around the back of the club, and
pulled up to the entrance. Among the cars was Defendant’s gold
Jaguar. Mr. George, Mr. Willis, and Mr. Stephens were all standing
at the front door.
Mr. George, Mr. Willis, and Mr. Stephens testified that
Defendant emerged from the gold Jaguar and asked for the owner of
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the club. During a heated exchange, Defendant stated, “It’s real”
and “If I can’t have my club open, y’all can’t have y’all’s open.”
Mr. Willis testified that upon hearing these words, he laughed at
Defendant. Thereafter, Defendant stated, “Man, it’s real out here
. . . you think I’m playing.” Defendant then popped his trunk,
retrieved a long black SKS rifle, and said, “Oh, you’re not
scared.” Defendant then cocked the gun and stated, “Oh, you’re
really not going to run.” At that point, Mr. George and Mr. Willis
retreated into the Club for cover, and Mr. Stephens retreated to
his pickup truck in the parking lot.
Thereafter, multiple shots were fired into the club from
outside the entryway. Mr. George was shot in the hand and in the
side of his body. Mr. Willis was shot in the leg. Another man
from Defendant’s entourage opened fire on the club with a handgun.
After opening fire on the club, Defendant and his entourage fled
the scene.
Police arrived on the scene around 3:15 a.m. and began their
investigation. Six 7.62 caliber shell casings consistent with an
SKS rifle and twelve .45 caliber shell casings were recovered from
the crime scene. The guns were never found. In the days that
followed, Mr. George, Mr. Willis, and Mr. Stephens all identified
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Defendant as the shooter in a photo array with near certainty.
They testified to the same in open court.
On 24 April 2008, police stopped Defendant’s sister in the
gold Jaguar and seized the vehicle. During an inventory of the
vehicle, police recovered a live 7.62 caliber bullet from
underneath the passenger seat. No identifiable fingerprints were
found on the bullet. After processing the vehicle, the police
called Defendant’s sister to retrieve it. However, Defendant’s
sister failed to pick the vehicle up and it was released to a local
auto dealer.
On 10 July 2008, police received information that Defendant
had been spotted at a local apartment complex. Acting on this
information, the police were able to locate and stop Defendant,
who was driving the same gold Jaguar.2 Thereafter, Defendant was
arrested and taken into custody.
Prior to trial, Deputy Sheriff James Swaringen (“Deputy
Swaringen”) was transporting Defendant from the courthouse to the
jail when he overheard a conversation Defendant had with another
prisoner. Deputy Swaringen testified that Defendant stated, “I
can’t believe they have me over here for this. I shot the guy in
2 It is unclear from the record how or when Defendant reacquired
the same gold Jaguar after it was released by the police to a local
auto dealer.
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the calf and there wasn’t even an exit wound and they’ve had me
sitting up here for 35 months for this? They’re just trying to
see if I crack being up here so long.”
On 20 January 2010, Defendant moved the trial court pursuant
to N.C. Gen. Stat. § 15A-267(c) for pre-trial DNA testing of the
shell casings recovered from the crime scene. Specifically,
Defendant’s written motion indicated that he wanted “to test the
shell casings to see if there is any DNA material on the shell
casings that may be compared to the Defendant.” Defendant’s
written motion requested DNA testing on the following grounds:
1. The Defendant is charged with attempted 1st
Degree Murder in that it is alleged on or
about April 20th in the early morning hours
that the Defendant fired shots into a club
in Greensboro injuring three people.
Numerous shell casings were found from the
weapon discharged outside the club on April
20, 2008.
2. The Defendant intends to plead not guilty
and contends that he did not discharge a
firearm.
3. The Defendant would like to test the shell
casings to see if there is any DNA material
on the shell casings that may be compared
to the Defendant.
At the motion hearing, counsel for Defendant argued as follows:
It’s my understanding that the State has these
shell casings in their custody. We’ve talked
about a plea bargain in this case. There’s
not going to be a plea bargain in this case.
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My client says he’s not guilty of this
offense. In order to pursue all efforts to
show that he’s not guilty, I’d like to have
the opportunity to test these shell casings.
There may or may not be DNA on the shell
casings, but we won’t know until we test them;
until we try. So we’d like to have the
opportunity to test those shell casings to see
if there’s any DNA evidence on there and have
it compared to [Defendant’s]. So that’s what—
I think that’s a reasonable request, Your
Honor.
Defendant also moved the trial court to order other discovery
including fingerprint testing on the shell casings at issue. At
the motion hearing, counsel for Defendant indicated that no
fingerprint testing had been performed on the shell casings to
date.
By order dated 4 March 2010, the trial court denied
Defendant’s motion for pre-trial DNA testing. In the same order,
the trial court ordered that the shell casings at issue be
subjected to fingerprint testing “to determine what fingerprint
evidence, if any, was present and whether or not any fingerprint
evidence found on those shell casings match the Defendant’s
prints.” No fingerprints were found.
Thereafter, Defendant was tried and convicted on all counts
and sentenced to two consecutive terms of 251 to 311 months in
prison for the attempted first-degree murder convictions and to
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concurrent sentences for the remaining convictions. Defendant
gave timely notice of appeal in open court.
II. Jurisdiction
Defendant’s post-judgment appeal of the trial court’s order
denying Defendant’s motion for DNA testing lies of right to this
court pursuant to N.C. Gen. Stat. §§ 7A-27(b), 15A-1444(a) (2013).
See also N.C. Gen. Stat. § 15A-270.1 (2013).
III. Analysis
The only question presented to this Court by Defendant’s
appeal is whether the trial court erred in its application of N.C.
Gen. Stat. § 15A-267(c). Defendant contends that pursuant to the
cited statute, the trial court was required to order pre-trial DNA
testing on shell casings found at the crime scene. We disagree.
“Alleged statutory errors are questions of law, and as such,
are reviewed de novo.” State v. Mackey, 209 N.C. App. 116, 120,
708 S.E.2d 719, 721 (2011) (internal citation omitted). “‘Under
a de novo review, the court considers the matter anew and freely
substitutes its own judgment’ for that of the lower tribunal.”
State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)
(quoting In re Greens of Pine Glen, Ltd. P’ship, 356 N.C. 642,
647, 576 S.E.2d 316, 319 (2003)).
N.C. Gen. Stat. § 15A-267(c) provides:
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Upon a defendant’s motion made before trial in
accordance with [N.C. Gen. Stat. §] 15A-952,
the court shall order the Crime Laboratory or
any approved vendor that meets Crime
Laboratory contracting standards to perform
DNA testing . . . upon a showing of all of the
following:
(1) That the biological material is relevant
to the investigation.
(2) That the biological material was not
previously DNA tested or that more
accurate testing procedures are now
available that were not available at the
time of previous testing and there is a
reasonable possibility that the result
would have been different.
(3) That the testing is material to the
defendant’s defense.
See also N.C. Gen. Stat. § 15A-269(a) (2013) (outlining similar
requirements for a post-conviction motion for DNA testing).
Accordingly, by the plain language of this statute, the burden is
on Defendant to make the required showing under subsections (1),
(2), and (3) before the trial court. Absent the required showing,
the trial court is not statutorily obligated to order pre-trial
DNA testing. Cf. State v. Foster, ___ N.C. App. ___, ___, 729
S.E.2d 116, 120 (2012) (describing the required showing of
materiality in the post-conviction context as a “condition
precedent to a trial court’s statutory authority to grant a motion
under [N.C. Gen. Stat.] § 15A-269”).
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Here, Defendant failed to establish the required showing
under N.C. Gen. Stat. § 15A-267(c)(1) and (3) in his written motion
and before the trial court at the motion hearing.3 Defendant’s
written motion stated in cursory fashion that “Defendant intends
to plead not guilty and contends that he did not discharge a
firearm” and that “Defendant would like to test the shell casings
to see if there is any DNA material on the shell casings that may
be compared to Defendant.” At the motion hearing, defense counsel
added: “[i]n order to pursue all efforts to show that he’s not
guilty . . . we’d like to have the opportunity to test those shell
casings to see if there’s any DNA evidence on there and to have it
compared to [Defendant’s].” Thus, before the trial court,
Defendant failed to sufficiently demonstrate how the absence of
his DNA on the shell casings would be either relevant to the
investigation or material to his defense at trial.
Before this Court, Defendant contends that the presence of
biological material on the shell casings at issue would have been
relevant to the investigation because “such biological material
would tend to identify the actual perpetrator.” Defendant further
contends that the absence of his DNA on the shell casings, if
3 The State conceded at the hearing that the shell casings had not
been previously tested for DNA, thereby satisfying the showing
required by N.C. Gen. Stat. § 15A-267(c)(2).
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established, would be material to his defense because such a
showing would tend to identify someone else as the shooter and
corroborate his alibi defense.4 We address each in turn.
“‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” N.C. R. Evid. 401. The State
does not challenge Defendant’s relevancy argument, and we find it
sufficiently persuasive to satisfy the required showing under N.C.
Gen. Stat. § 15A-267(c)(1). The presence of DNA evidence on a
spent shell casing has some tendency to identify the person who
fired the bullet.
However, while we agree that the presence of DNA evidence on
the shell casings at issue would be relevant to the investigation,
we disagree that the absence of Defendant’s DNA on the shell
casings would be material to Defendant’s alibi defense in this
case.
As used in N.C. Gen. Stat. § 15A-269(a)(1), our Court has
adopted the Brady definition of materiality. See State v. Hewson,
4 At trial Defendant testified that he was in Maryland attending
his cousin’s grandmother’s funeral at the time of the shooting.
Defendant could provide no additional witnesses or evidence
corroborating his alibi.
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___ N.C. App. ___, ___, 725 S.E.2d 53, 56 (2012) (stating that
evidence is “material” for purposes of N.C. Gen. Stat. § 15A-
269(a)(1) if “there is a ‘reasonable probability’ that its
disclosure to the defense would result in a different outcome in
the jury’s deliberation” (quotation marks and citations omitted)).
While such a standard is appropriate when evaluating motions made
in the post-trial context pursuant to N.C. Gen. Stat. § 15A-269,
we find that such a standard is inappropriate when evaluating pre-
trial motions made pursuant to N.C. Gen. Stat. § 15A-267(c).
Whether a particular piece of DNA evidence would have influenced
the outcome of a trial can only be determined after the trial is
completed and the judge has had an opportunity to compare that DNA
evidence against the cumulative evidence presented at trial.5
Accordingly, for purposes of applying N.C. Gen. Stat. § 15A-
267(c)(3), we resort to the plain meaning of “material” and hold
that biological evidence is material to a defendant’s defense where
5 Although Defendant waited until after he was convicted to appeal
in the instant case, our General Assembly has provided a right to
appeal pre-trial orders denying motions for DNA testing on an
interlocutory basis. See N.C. Gen. Stat. § 15A-270.1 (2013) (“The
defendant may appeal an order denying the defendant’s motion for
DNA testing under this Article, including by an interlocutory
appeal.”). In such situations, it would be difficult if not
impossible for this Court to determine whether disclosure of a DNA
test result would have a reasonable probability of changing a
jury’s verdict.
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such biological evidence has “some logical connection” to that
defense and is “significant” or “essential” to that defense.
Black’s Law Dictionary 998 (8th ed. 2004).
Here, we hold that the absence of Defendant’s DNA on the shell
casings at issue would not be material to his alibi defense. At
the outset, we note that a showing of materiality under N.C. Gen.
Stat. § 15A-267(c)(3) carries a higher burden than a showing of
relevancy under N.C. Gen. Stat. § 15A-267(c)(1). Thus, while the
presence of DNA evidence may have relevance to an investigation,
it does not follow that such evidence is necessarily material to
a defendant’s defense at trial.
Defendant contends that the absence of his DNA and a positive
showing of someone else’s DNA on the shell casings would be
material to his alibi defense because it would have “tended to
show that someone other than [Defendant] fired the SKS assault
rifle[.]”6 However, the absence of Defendant’s DNA from the shell
casings would only provide evidence of his absence from the scene
if one would otherwise expect to find his DNA on the shell casings
6 Defendant’s contention assumes the presence of biological
material on the shell casings—a premise that has not been
established in this case.
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in such a situation.7 Even then, such evidence would only justify
the inference that Defendant was absent—it would not provide
“essential” or “significant” evidence corroborating Defendant’s
alibi. Accordingly, we hold that the absence of Defendant’s DNA
on the shell casings at issue, if established, would not have a
logical connection or be significant to Defendant’s defense that
he was in Maryland at the time of the shooting.
Furthermore, we note like its counterpart in the post-
conviction setting, N.C. Gen. Stat. § 15A-267(c) outlines a
procedure for the DNA testing of “biological material,” not
evidence in general. Cf. State v. Brown, 170 N.C. App. 601, 609,
613 S.E.2d 284, 288–89 (2005) (“[N.C. Gen. Stat. § 15A-269(a)]
provides for testing of ‘biological evidence’ and not evidence in
general. Since defendant desires to demonstrate a lack of
biological evidence, the post-conviction DNA testing statute does
not apply.” (internal citation omitted)), superseded by statute on
other grounds as stated in State v. Norman, 202 N.C. App. 329,
332–33, 688 S.E.2d 512, 515 (2010). Here, the purpose of
Defendant’s request for DNA testing is to demonstrate the absence
of his DNA on the shell casings at issue. By its plain language,
7 Such an expectation is undermined by the fact that shooting a
gun does not require one to load or handle bullets.
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N.C. Gen. Stat. § 15A-267(c) contemplates DNA testing for
ascertained biological material—it is not intended to establish
the absence of DNA evidence. It is unknown in this case if there
is any biological material that may be tested on the shell casings.
Indeed, at the motion hearing, defense counsel stated “[t]here may
or may not be DNA on the shell casings, but we won’t know until we
test them; until we try.” Thus, to the extent that Defendant’s
motion sought to establish a lack of DNA evidence on the shell
casings, we hold that such a motion is not proper under N.C. Gen.
Stat. § 15A-267(c).
IV. Conclusion
For the foregoing reasons, we affirm the order of the trial
court denying Defendant’s motion under N.C. Gen. Stat. § 15A-
267(c) for pre-trial DNA testing.
Affirmed.
Judges ROBERT C. HUNTER and CALABRIA concur.