State v. Killette

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-836
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Johnston County
No. 09 CRS 55879, 56059
VAN BUREN KILLETTE, JR.
Appeal by defendant from order entered 17 January 2013 by
Judge Thomas H. Lock in Johnston County Superior Court. Heard
in the Court of Appeals 11 December 2013.
Roy Cooper, Attorney General, by Laura E. Parker, Assistant
Attorney General, for the State.
Staples Hughes, Appellate Defender, by Constance E.
Widenhouse, Assistant Appellate Defender, for defendant-
appellant.
STEELMAN, Judge.
Where the evidence in question had already been destroyed
and the defendant failed to show that the evidence was
biological evidence and material to his defense, the trial court
did not err in denying defendant’s motion to locate and preserve
evidence for DNA testing.
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I. Factual and Procedural Background
On 1 June 2010, Van Buren Killette, Jr., (defendant) pled
guilty to one count of second-degree burglary, two counts of
second-degree kidnapping, and one count of conspiracy to commit
robbery with a dangerous weapon, pursuant to a plea bargain as
to sentence. Defendant was sentenced to 27-42 months
imprisonment for burglary and kidnapping, and 27-42 months
imprisonment for conspiracy, with the sentences to run
consecutively.
On 14 June 2010, the State filed a motion to destroy
evidence in defendant’s cases. This motion was granted on 7
July 2010. The evidence destroyed included duct tape from the
crime scene, a pair of defendant’s shoes, a brown paper bag
containing miscellaneous items of clothing, a brown paper bag
containing two multi-colored hoodies, and a brown paper bag
containing pieces of duct tape with shoe impressions.
On 10 December 2010, defendant, pro se, filed a motion to
locate and preserve evidence, a motion for DNA testing, and an
affidavit of actual innocence. On 10 January 2013, the trial
court heard defendant’s motions. On 17 January 2013, the trial
court denied defendant’s motions.
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Defendant appeals.
II. Standard of Review
“In reviewing a trial judge's findings of fact, we are
‘strictly limited to determining whether the trial judge's
underlying findings of fact are supported by competent evidence,
in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge's
ultimate conclusions of law.’” State v. Allen, ___ N.C. App.
___, ___, 731 S.E.2d 510, 519, disc. review denied, 366 N.C.
415, 737 S.E.2d 377 (2012), cert. denied, ___ U.S. ___, 133
S.Ct. 2009, 185 L. Ed. 2d 876 (2013) (quoting State v. Williams,
362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008)).
“Issues of statutory construction are questions of law,
reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509,
511, 689 S.E.2d 590, 592 (2010).
III. Materiality of Destroyed Evidence
On appeal, defendant contends that the trial court erred by
failing to conduct a hearing regarding the destruction of
physical evidence, or to consider an appropriate remedy, and
that the trial court erred by denying defendant’s motion to
preserve evidence for DNA testing. We disagree.
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Pursuant to N.C. Gen. Stat. § 15A-268, the State is
required to preserve “biological evidence,” which
includes the contents of a sexual assault
examination kit or any item that contains
blood, semen, hair, saliva, skin tissue,
fingerprints, or other identifiable human
biological material that may reasonably be
used to incriminate or exculpate any person
in the criminal investigation, whether that
material is catalogued separately on a slide
or swab, in a test tube, or some other
similar method, or is present on clothing,
ligatures, bedding, other household
materials, drinking cups, cigarettes, or any
other item of evidence.
N.C. Gen. Stat. § 15A-268(a) (2013). In response to notice
that such evidence is to be destroyed, a defendant may request a
hearing. N.C. Gen. Stat. § 15A-268(d).
At the 10 January 2013 hearing, the State stipulated that
the evidence in question – duct tape without fingerprints, a
pair of shoes and other items of clothing collected from near
the crime scene, and a shoe impression – had been destroyed, and
asserted that it was not biological evidence pursuant to N.C.
Gen. Stat. § 15A-268. At the close of the hearing, defendant
moved that the court conduct a hearing on the destruction of
evidence. The court declined to do so, holding that the State
had stipulated that evidence had been destroyed, and that the
stipulation would be part of the court’s findings. The trial
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court further found that the evidence in question was not
biological evidence.
Defendant failed to present evidence at the 10 January 2013
hearing that would support a finding that the destroyed evidence
was biological evidence that would merit a hearing on its
destruction. The statutory mandates of N.C. Gen. Stat. § 15A-
268, including a hearing at defendant’s request, apply only to
biological evidence. Even assuming arguendo that the State did
not follow the procedures outlined in N.C. Gen. Stat. § 15A-268,
those procedures apply only to biological evidence. We hold
that the trial court did not err in denying defendant’s request
for a hearing.
Defendant further contends that the trial court erred in
denying his motion to preserve evidence for DNA testing. N.C.
Gen. Stat. § 15A-269 provides that a defendant may file a motion
for post-conviction DNA testing of biological evidence provided
that the evidence in question:
(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.
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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.
N.C. Gen. Stat. § 15A-269(a) (2013). As noted above, the trial
court found that the evidence in question was not biological
evidence, and that the evidence had been destroyed. Nowhere in
defendant’s 10 December 2010 motion to preserve evidence, nor
during the 10 January 2013 hearing, did defendant offer any
support for an argument that the evidence in question was
material. Defendant offers only the vague allegation that the
evidence was material, without arguing why it was material. We
have previously held that a mere conclusory statement that
evidence is material, without more, is not sufficient to support
a motion to conduct DNA testing. State v. Gardner, ___ N.C.
App. ___, ___, 742 S.E.2d 352, 356, disc. review denied, ___
N.C. ___, 749 S.E.2d 860 (2013) (citing State v. Foster, ___
N.C. App. ___, ___, 729 S.E.2d 116, 120 (2012)). In the absence
of a showing that the evidence in question was material, we hold
that the trial court did not err in denying defendant’s motion
to preserve evidence for DNA testing.
This argument is without merit.
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AFFIRMED.
Judges STEPHENS and DAVIS concur.
Report per Rule 30(e).