State v. Byers , 263 N.C. App. 231 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-250
Filed: 18 December 2018
Mecklenburg County, Nos. 01 CRS 51748, 49
STATE OF NORTH CAROLINA
v.
TERRAINE SANCHEZ BYERS
Appeal by Defendant from order dated 3 August 2017 by Judge W. Robert Bell
in Superior Court, Mecklenburg County. Heard in the Court of Appeals 1 October
2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt
Orsbon, for Defendant.
McGEE, Chief Judge.
Terraine Sanchez Byers (“Defendant”) was convicted of first-degree murder of
his former girlfriend and first-degree burglary on 3 March 2004. After exhausting
his direct appeal, Defendant filed a pro se motion for post-conviction DNA testing
pursuant to N.C. Gen. Stat. § 15A-269 on 31 July 2017. The trial court entered an
order dated 3 August 2017 denying Defendant’s motion. Defendant appeals and
argues that the trial court erred in denying his motion for post-conviction DNA
testing. We agree.
STATE V. BYERS
Opinion of the Court
I. Factual and Procedural History
Defendant was convicted of first-degree murder and first-degree burglary on 3
March 2004. Defendant was sentenced to life imprisonment without parole for the
murder conviction and a minimum of 77 months to a maximum of 102 months of
imprisonment for the burglary conviction. Defendant appealed and this Court upheld
the trial court’s decision in State v. Byers, 175 N.C. App. 280, 623 S.E.2d 357 (2006)
(“Byers I”). Our Supreme Court subsequently denied Defendant’s petition for
discretionary review on 6 April 2006. State v. Byers, 360 N.C. 485, 631 S.E.2d 135(2006).
Defendant’s convictions arose out of events that occurred on the evening of 22
November 2001 when Defendant’s ex-girlfriend, Shanvell Burke (“Ms. Burke”), was
stabbed to death inside her Charlotte apartment (“Ms. Burke’s apartment” or “the
apartment”). Officers had previously been called to Ms. Burke’s apartment multiple
times because of Ms. Burke’s fear of Defendant. Byers I, 175 N.C. App. at 284, 623
S.E.2d at 359-60. Reginald Williams (“Mr. Williams”) was inside Ms. Burke’s
apartment on the evening of 22 November 2001 and testified that he and Ms. Burke
were watching television when they heard a crash at the back door of the apartment.
Id. at 283, 623 S.E.2d at 359. Mr. Williams further testified that Ms. Burke went to
the back door and he heard her yelling, “Terraine, stop” before Mr. Williams fled the
apartment in fear. Id.-2-
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Opinion of the Court
When officers arrived at the scene, they saw Defendant leaving the apartment
through a broken window in a door, and described him as “nervous and profusely
sweating.” Id. at 283, 623 S.E.2d at 359. After informing the officers that Ms. Burke
was inside and injured, Defendant attempted to flee the scene. Id. Defendant was
quickly apprehended and was found to have a deep laceration on his left hand. Id.The officers found Ms. Burke deceased inside the apartment. The officers also found
a knife with a broken blade. Id. at 283-84, 623 S.E.2d at 359.
Investigators analyzed fingernail scrapings from Defendant’s hands, a blood
stain from a cushion on Ms. Burke’s couch, the knife handle, the knife blade, and
various other blood stains throughout the apartment. Id. at 285, 623 S.E.2d at 360.
The DNA from the several samples all matched either Defendant or Ms. Burke. Id.Defendant stipulated that the blood on the shirt that he was wearing at the time of
his arrest was Ms. Burke’s. For a more detailed description of the facts underlying
Defendant’s convictions, refer to this Court’s prior opinion in Byers I.
Defendant filed a pro se motion for post-conviction DNA testing on 31 July
2017. In his motion, Defendant asserted that he was on the other side of town waiting
for a bus when the attack on Ms. Burke occurred. Defendant further alleged that one
of the State’s witnesses testified she saw Defendant getting on the 9:00 p.m. city bus
on the night of the events in question. Defendant alleged that a private investigator
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Opinion of the Court
swore in an affidavit that it would have been impossible for Defendant to arrive at
Ms. Burke’s apartment prior to the alleged 911 call.
Defendant further stated in his motion that, when he arrived at Ms. Burke’s
apartment, he noticed the “back door smashed in.” Defendant also asserted that he
went inside the apartment to investigate and was attacked by a man wearing a plaid
jacket. The two men struggled, which Defendant argues explains the presence of his
DNA throughout the apartment. Defendant stated he lost his balance during the
attack and fell, allowing the assailant to escape. Defendant argues that, because both
he and Ms. Burke struggled with the unknown assailant, DNA testing of his and Ms.
Burke’s previously untested clothing would reveal the identity of the actual
perpetrator. Defendant noted that the State’s DNA expert reported the presence of
human blood in various locations throughout Ms. Burke’s apartment that did not
match either Defendant or Ms. Burke; however, this information was not introduced
at trial. Defendant further requested that the items of clothing be preserved and that
an inventory of the evidence be prepared.
The trial court entered an order dated 3 August 2017 denying Defendant’s
motion. The trial court held that Defendant had failed to sufficiently allege how DNA
testing of the requested items would be “material to his defense.” Defendant appeals.
II. Analysis
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Opinion of the Court
The issues Defendant argues are that the trial court erred in denying his
motion for post-conviction DNA testing: (1) “prior to obtaining and reviewing the
statutorily required inventory of evidence” collected during the criminal
investigation, and (2) “before appointing counsel when [his] motion for such testing
establishe[d] that . . . [D]efendant [was] indigent and that the testing may be material
to his defense.”
A. Denial of Motion Prior to Inventory of Evidence
Defendant argues the trial court erred by denying his motion for post-
conviction DNA testing before obtaining and reviewing the statutorily required and
requested inventory of physical and biological evidence collected during the criminal
investigation.
1. Appellate Jurisdiction
Initially, the State responds by arguing Defendant “lacks the right to appeal”
the denial of a motion to locate and preserve evidence under N.C. Gen. Stat. § 7A-
27(b)(1) and N.C. Gen. Stat. § 15A-270.1. The State further argues that Defendant
failed to preserve this issue for appellate review by failing to obtain a ruling on the
motion as required by N.C. R. App. P 10(a)(1), that “ordinarily results in waiver of
appellate review of the issue.” In re B.E., 186 N.C. App. 656, 657, 652 S.E.2d 344,
345 (2007). However, the State misconstrues Defendant’s argument. Defendant does
not argue, as the State contends, that the trial court erred by failing to order the
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Opinion of the Court
preservation and inventory of the requested evidence. Instead, Defendant argues the
trial court erred in denying his motion for post-conviction DNA testing prior to
receiving the inventory of evidence. Therefore, this case is distinguishable from the
case cited by the State, State v. Doisey, 240 N.C. App. 441, 770 S.E.2d 177 (2015),
where this Court dismissed a defendant’s argument that the trial court erred in
failing to order the inventory of biological evidence.
N.C. Gen. Stat. § 15A-270.1 (2017) explicitly states that “[t]he defendant may
appeal an order denying the defendant’s motion for DNA testing under this Article,
including by an interlocutory appeal.” Therefore, appeal was the proper avenue for
reversing the trial court’s order, and Defendant preserved this issue for appellate
review by appealing the denial of his motion for post-conviction DNA testing.
Defendant has also filed a petition for a writ of certiorari for review of this issue.
However, having found that Defendant’s appeal is proper under N.C.G.S. § 15A-
270.1, we deny his petition as unnecessary.
2. Procedure for the Inventory of Evidence
In order to fully analyze Defendant’s argument, we must consider the statutory
procedure for requesting an inventory of evidence and the role of the inventory within
the post-conviction DNA testing statute. The statutory procedure for compiling an
inventory of evidence is set out in N.C. Gen. Stat. § 15A-268(a7), which requires
custodial agencies:
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Opinion of the Court
Upon written request by the defendant, the custodial
agency shall prepare an inventory of biological evidence
relevant to the defendant’s case that is in the custodial
agency’s custody. If the evidence was destroyed through
court order or other written directive, the custodial agency
shall provide the defendant with a copy of the court order
or written directive.
N.C.G.S. § 15A-268(a7). N.C.G.S. § 15A-269(f) (2017) similarly requires: “Upon
receipt of a motion for postconviction DNA testing, the custodial agency shall
inventory the evidence pertaining to that case and provide the inventory list, as well
as any documents, notes, logs, or reports relating to the items of physical evidence, to
the prosecution, the petitioner, and the court.”
Defendant’s argument that the trial court erred by denying his motion for post-
conviction DNA testing prior to obtaining an inventory of evidence was recently
addressed by this Court in State v. Tilghman, ___ N.C. App. ___, ___ S.E.2d___, 2018
WL 4700630 (filed 2 October 2018). In Tilghman, the defendant made similar
arguments under both N.C.G.S. § 15A-268(a7) and N.C.G.S. § 15A-269(f), that the
trial court erred by denying his motion for post-conviction DNA testing prior to
receiving an inventory of the evidence. Tilghman, ___ N.C. App. at ___, ___ S.E.2d at
___. In Tilghman, this Court, addressed both statutes in turn, rejected the
defendant’s arguments and found no error in the trial court’s denial of the defendant’s
motion.
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Opinion of the Court
In addressing N.C.G.S. § 15A-268(a7), Tilghman held the trial court “did not
err in denying [d]efendant’s motion for postconviction DNA testing prior to obtaining
an inventory of biological evidence which [d]efendant never requested, and we must
dismiss this argument. . . . Assuming arguendo [d]efendant properly requested an
inventory of biological evidence, case law would bind us to dismiss this argument.”
Id. at ___, ___ S.E.2d at ___ (internal citations omitted) (citing Doisey, 240 N.C. App.
at 447-48, 770 S.E.2d at 181-82). Unlike the defendants in both Tilghman and Doisey,
Defendant in the present case clearly filed a written request for an inventory of
biological evidence. While Defendant’s motion was titled a “Request for Post-
Conviction DNA Testing,” on page fourteen of his motion, Defendant specifically
states: “Defendant also request [sic] the court to order preservation, preparation of
the evidence and its inventory.” Defendant’s motion cites to both N.C.G.S. § 15A-
268(a7) and N.C.G.S. § 15A-269(f).
However, in State v. Randall, ___ N.C. App. ___, ___, 817 S.E.2d 219, 222 (2018)
this Court addressed the requirements of N.C.G.S. § 15A-268(a7) and held that the
written request for an inventory of evidence must be directed to the custodial agency.
This Court held that, without evidence in the record that the defendant made a proper
request under N.C.G.S. § 15A-268(a7), there was no ruling for this Court to consider
and that defendant’s appeal must be dismissed. Similarly, the record in the case
before us is devoid of any evidence indicating Defendant ever made a request to a
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Opinion of the Court
custodial agency; therefore, Defendant was not entitled to an inventory of the
evidence under N.C.G.S. § 15A-268(a7).
In addressing N.C.G.S. § 15A-269, this Court in Tilghman held:
The statute is silent as to whether a defendant or the trial
court bears the burden of serving the motion for inventory
on the custodial agency.
Here, the record lacks proof either Defendant or the trial
court served the custodial agency with the motion for
inventory. Assuming arguendo it is the trial court’s burden
to serve the custodial agency with the motion, any error by
the court below [in denying the defendant’s motion for post-
conviction DNA testing prior to receiving the inventory] is
harmless error. As held supra, Defendant failed to meet
his burden of showing materiality. Accordingly, the trial
[court] did not err by denying his motion for DNA testing
prior to an inventory under N.C. Gen. Stat. § 15A-269(f).
Tilghman, ___ N.C. App. at ___, ___ S.E.2d at ___. As discussed below, Defendant in
the present case, unlike in Tilghman, met his burden of showing materiality.
3. Timing of Trial Court’s Determination
Defendant contends that a trial court is required to receive the inventory prior
to making its determination under N.C.G.S § 15A-269. We disagree. In Doisey, this
Court stated:
The stated policy behind [our State’s DNA Database and
Databank Act of 1993] is to assist federal, State, and local
criminal justice and law enforcement agencies in the
identification, detection, or exclusion of individuals who
are subjects of the investigation or prosecution of felonies
or violent crimes against the person[.] Thus, in applying
the Act in any particular case, we must strive to harmonize
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Opinion of the Court
its provisions while being mindful of this legislative intent
and seeking to avoid nonsensical interpretations. Both the
plain language of section 15A–269 as quoted supra, and the
express intent of the Act as stated in section 15A–266.1,
make absolutely clear that its ultimate focus is to help
solve crimes through DNA testing. All provisions of the Act
must be understood as facilitating that ultimate goal.
Doisey, 240 N.C. App. at 445, 770 S.E.2d at 180 (internal quotation marks and
citations omitted). We further noted that “the required inventory under section 15A–
269 is merely an ancillary procedure to an underlying request for DNA testing.” Id.
at 446, 770 S.E.2d at 181.
N.C.G.S. § 15A-269(f) provides that: “[u]pon receipt of a motion for
postconviction DNA testing, the custodial agency shall inventory the evidence . . . .”
This language indicates that a custodial agency’s duty to prepare an inventory is
conditioned on the receipt of a motion for post-conviction DNA testing, unlike
N.C.G.S. § 15-268(a7), where the duty to act is predicated on the receipt of a “written
request by the defendant.” “Thus, a defendant who requests DNA testing under
section 15A–269 need not make any additional written request for an inventory of
biological evidence.” Doisey, 240 N.C. App. at 445, 770 S.E.2d at 180.
Under the language of N.C.G.S. § 15A-269, the trial court’s duty is not similarly
conditioned on the receipt of an inventory from a custodial agency. Instead, N.C.G.S.
§ 15A-269(b) states:
The court shall grant the motion for DNA testing . . . upon
its determination that:
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Opinion of the Court
(1) The conditions set forth in subdivisions (1), (2),
and (3) of subsection (a) of this section 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.G.S. § 15A-269(b) clearly lays out three conditions the trial court must
determine exist prior to granting a motion for post-conviction DNA testing.
Obtaining and reviewing the results of an inventory prepared by a custodial agency
is not one of the conditions. This reading of N.C.G.S. § 15A-269(b) is consistent with
the overall purpose of the statute to “assist federal, State, and local criminal justice
and law enforcement agencies in the identification, detection, or exclusion of
individuals who are subjects of the investigation or prosecution of felonies or violent
crimes against the person[.]” Doisey, 240 N.C. App. at 445, 770 S.E.2d at 180.
Defendant argues that, “[w]ithout obtaining and reviewing the required
inventories, the trial court lacked any knowledge about the nature or status of the
evidence in [Defendant’s] case[.]” Under N.C.G.S. § 15A-269(a), “[t]he defendant has
the burden . . . of establishing the facts essential to his claim by a preponderance of
the evidence.” State v. Cox, 245 N.C. App. 307, 310, 781 S.E.2d 865, 867 (2016). The
trial court’s ability to analyze whether the conditions in N.C.G.S. § 15A-269(b) were
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Opinion of the Court
met is not contingent on the results of an inventory of the evidence. Whether the
requested evidence is still in the possession of the custodial agency is immaterial to
the trial court’s determination under N.C.G.S. § 15A-269(b). Instead, the trial court
is required to make its determination as to whether Defendant has sufficiently
alleged the conditions set forth in N.C.G.S. § 15A-269(b) that the DNA testing sought
is: (1) material to Defendant’s defense, (2) related to the prior investigation or
prosecution, (3) has not been tested previously or would result in more accurate
results, (4) likely to produce a more favorable result for Defendant, and (5) Defendant
has signed an affidavit of innocence. See N.C.G.S. § 15A-269(b). Therefore, the trial
court did not err in denying Defendant’s motion for post-conviction DNA testing prior
to obtaining and reviewing the inventory.
B. Appointment of Counsel
Defendant argues the trial court erred in denying his motion for post-
conviction DNA testing because the allegations in his motion were sufficient to
establish that he was entitled to the appointment of counsel. We agree. N.C. Gen.
Stat. § 15A-269 (2017) sets out the standards for evaluating motions for post-
conviction DNA testing and for the appointment of counsel. Under N.C.G.S. § 15A-
269,
(a) A defendant may make a motion before the trial court
that entered the judgment of conviction against the
defendant for performance of DNA testing . . . if the
biological evidence meets all of the following conditions:
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Opinion of the Court
(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 accurate and probative
of the identity of the perpetrator or
accomplice or have a reasonable probability
of contradicting prior test results.
....
(c) . . . [T]he 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 . . . upon a showing that
the DNA testing may be material to the petitioner’s claim
of wrongful conviction.
N.C.G.S. § 15-269. “Thus, to be entitled to counsel, defendant must first establish
that (1) he is indigent and (2) DNA testing may be material to his wrongful conviction
claim.” Cox, 245 N.C. App. at 312, 781 S.E.2d at 868.
In State v. Gardner, 227 N.C. App. 364, 742 S.E.2d 352 (2013), this Court held
that the materiality showing required to be entitled to the appointment of counsel
under subsection (c) is no less demanding than under subsection (a)(1). Id. at 368,
742 S.E.2d at 355. The level of materiality required under subsection (a)(1) to support
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Opinion of the Court
a motion for post-conviction DNA testing has been frequently litigated and has been
a high bar for pro se litigants. See, e.g. State v. Lane, 370 N.C. 508, 809 S.E.2d 568(2018); Randall, ___ N.C. App. ___, 817 S.E.2d 219. In Lane, our Supreme Court held
that DNA evidence is “material” when
there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different. The determination of
materiality must be made in the context of the entire
record, and hinges upon whether the evidence would have
affected the jury’s deliberations. In the context of a capital
case, we must consider whether the evidence would have
changed the jury’s verdict in either the guilt or sentencing
phases.
Lane, 370 N.C. at 519, 809 S.E.2d at 575 (internal quotation marks and citations
omitted).
This Court has regularly held that the burden of proof to show materiality is
on the movant and a defendant fails to meet that burden when the defendant provides
only “conclusory statements” as to the evidence’s materiality. See State v. Turner,
239 N.C. App. 450, 454, 768 S.E.2d 356, 359 (2015); State v. Foster, 222 N.C. App.
199, 205, 729 S.E.2d 116, 120 (2012). Instead, “‘[a] 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.’” Cox, 245 N.C. App. at 312, 781
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Opinion of the Court
S.E.2d at 869 (emphasis in original) (quoting State v. Collins, 234 N.C. App. 398, 411-
12, 761 S.E.2d 914, 922-23 (2014)).
In this case, while the trial court’s order denying Defendant’s motion refers to
his description of the events as “conclusory claims,” Defendant has alleged more than
the defendants in the above-cited cases. Defendant has provided specific reasons that
the requested DNA test would be significantly more probative of the identity of the
perpetrator including: (1) a comprehensive statement of Defendant’s version of the
events of the night of Ms. Burke’s murder, stating that he was on a bus at the time of
Ms. Burke’s murder, arrived at the scene after she was attacked, and was then
attacked by an unknown assailant; (2) Defendant’s version of events was consistent
with his statements at the scene, his defense at trial, and the testimony of at least
one eyewitness; (3) specifically identifying items to be DNA tested; and (4) explaining
how DNA testing of the various items of clothing would corroborate his version of the
events and why the DNA evidence presented at trial offered an incomplete picture of
the events.
Defendant’s motion avoids many of the issues this Court’s prior cases have
highlighted in finding insufficient allegations of materiality. Defendant did not plead
guilty and has maintained his innocence. Cf. State v. Randall, ___ N.C. App. ___, 817
S.E.2d 219 (2018) (noting that those who plead guilty have more difficulty in alleging
materiality). There was additional evidence supporting Defendant’s allegation that
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Opinion of the Court
there was a different perpetrator, including his statements to officers at the scene of
the crime and eyewitness testimony regarding his location at the time of the crime.
Cf. Lane, 370 N.C. 508, 809 S.E.2d 598 (holding that “the dearth of evidence at trial
pointing to a second perpetrator” supported finding the defendant failed to
sufficiently allege materiality). Defendant is hoping to show the presence of an
alternative perpetrator’s DNA, rather than the lack of his own DNA. Cf. Collins, 234
N.C. App. at 410, 761 S.E.2d at 923 (noting that defendants seeking to demonstrate
a “lack of biological evidence” are not entitled to post-conviction DNA testing). The
items Defendant moved to have tested were identified and preserved soon after Ms.
Burke’s murder. Cf. Randall, ___ N.C. App. ___, ___, 817 S.E.2d 219, 222 (2018)
(holding that DNA evidence collected over a month after the alleged crime was not
material, as it could not be used to prove Defendant was not involved in a sexual
relationship with a minor). The results of the DNA testing could corroborate
Defendant’s defense at trial. Cf. State v. McPhaul, ___ N.C. App. ___, 812 S.E.2d 728(17 April 2018) (unpublished) (holding DNA testing of gunshot residue kits was not
material as it could not support Defendant’s theory of self-defense). The DNA results
could directly contradict the State’s argument that Defendant was the sole
perpetrator of the crime. Cf. State v. Little, ___ N.C. App. ___, 796 S.E.2d 404 (21
February 2017) (unpublished) (holding DNA testing of rape kit for DNA of a third-
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Opinion of the Court
party would not be material because the victim admitted to consensual sex with the
third party the day prior to her attack).
Our Supreme Court has held that a defendant fails to establish materiality
where the evidence of guilt is so overwhelming that there is not “a reasonable
probability that the verdict would have been more favorable to the defendant” had
the DNA evidence been presented. Lane, 370 N.C. at 518-20, 809 S.E.2d at 575-76;
State v. Floyd, 237 N.C. App. 300, 765 S.E.2d 74 (2014) (holding that materiality is a
higher burden than relevancy at trial). In evaluating the standard for an ineffective
assistance of counsel claim under the Sixth Amendment, the United States Supreme
Court applies a similar “reasonable probability” standard. A defendant “must show
that there is a reasonable probability that, but for counsel’s” deficient representation,
there is a “reasonable probability . . . the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698 (1984).
The Supreme Court in Strickland further explained the standard by holding:
It is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the
proceeding. . . . . A reasonable probability is a probability
sufficient to undermine confidence in the outcome. . . . .
When a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt.
Id. at 693-95, 80 L. E. 2d at 697-98.
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Opinion of the Court
In the case before us, there is substantial evidence at trial tending to show
Defendant’s guilt. However, evidence indicating guilt cannot be dispositive of the
issue. The weight of the evidence indicating guilt must be weighed against the
probative value of the possible DNA evidence. Our Supreme Court has found DNA
to be “highly probative of the identity of the victim’s killer.” State v. Daughtry, 340
N.C. 488, 512, 459 S.E.2d 747, 759 (1995).
In enacting N.C.G.S. § 15A-269, our General Assembly created a potential
method of relief for wrongly incarcerated individuals. To interpret the materiality
standard in such a way as to make that relief unattainable would defeat that
legislative purpose. See Burgess v. Your House of Raleigh, 326 N.C. 205, 216, 388
S.E.2d 134, 140 (1990) (“[A] statute must be construed, if possible, so as to give effect
to every provision, it being presumed that the Legislature did not intend any of the
statute’s provisions to be surplusage.”). A recent dissent in an opinion in this Court
highlighted the position in which our previous interpretation of materiality has
placed pro se defendants, stating “we are requiring indigent defendants to meet this
illusory burden of materiality, with no guidance or examples of what actually
constitutes materiality. Under our case law, therefore, it would be difficult for even
an experienced criminal defense attorney to plead these petitions correctly.” State v.
Sayre, ___ N.C. App. ___, 803 S.E.2d 699 (2017) (unpublished) (Murphy, J.,
dissenting) aff’d per curiam ___ N.C. ___, ___ S.E.2d ___ (2018). We hold Defendant
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Opinion of the Court
in the present case has satisfied this difficult burden. Because the trial court erred
in finding that Defendant failed to meet his burden of establishing materiality, the
trial court’s order must be reversed.
III. Conclusion
The trial court did not err in making its determination prior to receiving an
inventory of the available evidence. However, the trial court erred in determining
that Defendant failed to sufficiently plead the materiality of the requested post-
conviction DNA testing. Therefore, the trial court’s order must be reversed and
remanded for the entry of an order consistent with this opinion.
REVERSED AND REMANDED.
Judges ELMORE concurs.
Judge ARROWOOD dissents with separate opinion.
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No. COA18-250 – State v. Byers
ARROWOOD, Judge, dissenting.
I respectfully dissent. I would hold the trial court did not err by denying
defendant’s motion for DNA testing because the allegations in his motion were not
sufficient to establish that he was entitled to the appointment of counsel.
“In reviewing a denial of a motion for postconviction DNA testing, 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. Lane, 370 N.C. 508, 517, 809 S.E.2d 568, 574 (2018)
(citation, internal quotation marks, and alteration omitted). The movant “has the
burden of proving by a preponderance of the evidence every fact essential to support
the motion for postconviction DNA testing, which includes the facts necessary to
establish materiality.” Id. at 518, 809 S.E.2d at 574 (internal quotation marks and
citations omitted).
N.C. Gen. Stat. § 15A-269 (2017) provides, in relevant part:
(a) A defendant may make a motion before the trial court
that entered the judgment of conviction against the
defendant for performance of DNA testing . . . 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.
STATE V. BYERS
ARROWOOD, J., dissenting.
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 subdivisions (1), (2), and
(3) of subsection (a) of this section 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.
....
(c) . . . [T]he 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 . . . upon a
showing that the DNA testing may be material to the
petitioner’s claim of wrongful conviction.
N.C. Gen. Stat. § 15A-269. “Thus, to be entitled to counsel, defendant must first
establish that (1) he is indigent and (2) DNA testing may be material to his wrongful
conviction claim.” State v. Cox, 245 N.C. App. 307, 312, 781 S.E.2d 865, 868 (2016)
(citation omitted). The materiality showing required under N.C. Gen. Stat.
2
STATE V. BYERS
ARROWOOD, J., dissenting.
§ 15A-269(c) is no less demanding than under (a)(1). State v. Gardner, 227 N.C. App.
364, 368, 742 S.E.2d 352, 355 (2013). Our Supreme Court has previously determined
that, in this context, “material means there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Lane, 370 N.C. at 519, 809 S.E.2d at 575 (citation and internal quotation
marks omitted).
Whether a “defendant’s request for postconviction DNA testing is ‘material’ to
his defense, as defined in N.C. [Gen. Stat.] § 15A-269(b)(2), is a conclusion of law”
that we review de novo on appeal. Id. at 517-18, 809 S.E.2d at 574. To allege that
the requested DNA would be material, a “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.” Cox, 245 N.C. App. at 312, 781 S.E.2d at
869 (citation and internal quotation marks omitted). Our determination as to
whether the request is material to a defendant’s defense must be based on “the
context of the entire record, and hinges upon whether the evidence would have
affected the jury’s deliberations.” Lane, 370 N.C. at 519, 809 S.E.2d at 575 (internal
citation and quotation marks omitted).
Here, defendant’s motion alleges: (1) his theory at trial was that someone else
committed the crimes; (2) the State’s failure to test the blood on both his and the
3
STATE V. BYERS
ARROWOOD, J., dissenting.
victim’s clothes deprived him of a fair trial because testing the clothes would reveal
the identity of this person he claims murdered the victim; and (3) the perpetrator’s
blood will be on the clothes because the perpetrator fought both defendant and the
victim on the night of the victim’s murder.
In light of the context of the entire record, I disagree with the majority that
these allegations were sufficient to establish materiality, and agree with the trial
court that defendant “failed to show how conducting additional DNA testing is
material to his defense.” The insufficiency of these allegations is demonstrated by
our Supreme Court’s recent decision in Lane.
In Lane, our Supreme Court considered whether a trial court improperly
denied a defendant’s motion for postconviction DNA testing of hair samples because
defendant failed “to show that the requested postconviction DNA testing of hair
samples is material to his defense[.]” Lane, 370 N.C. at 516, 809 S.E.2d at 574
(internal quotation marks omitted). The court concluded that the defendant could
not establish materiality because of the “overwhelming evidence of defendant’s guilt
presented at trial, the dearth of evidence at trial pointing to a second perpetrator,
and the inability of forensic testing to determine whether the hair samples at issue
are relevant to establish a third party was involved in these crimes together[.]” Id.
at 520, 809 S.E.2d at 576. This evidence that the defendant in Lane raped, sodomized,
and murdered the victim included a confession by defendant, which never mentioned
4
STATE V. BYERS
ARROWOOD, J., dissenting.
a second perpetrator, eyewitness testimony, and forensic testing that revealed a “hair
was found in [the victim’s] anal canal . . . could not” rule out defendant “as the source
of the hair.” Id. at 520-21, 809 S.E.2d at 576. The State’s evidence also included
forensic evidence that:
the trash bag in which [the victim] was found was
consistent with the size, composition, construction, texture,
red drawstrings, and reinforcement characteristics of the
trash bags found in defendant’s home. Fibers from a blue
tarp and a roll of duct tape also found at defendant’s home
were consistent with the tarp and duct tape found near the
location where [the victim’s] body was found. Fourteen
hairs consistent with the victim’s head hairs were found in
defendant’s vacuum cleaner and carpet sample, confirming
[the victim] was in defendant’s home, and these hairs
exhibited signs of being cut, confirming [the victim] was
subjected to some kind of force.
Id. at 521, 809 S.E.2d at 576.
Here, as described by the majority, defendant was convicted of first degree
burglary and first degree murder on 3 March 2004. State v. Byers, 175 N.C. App. 280,
282, 623 S.E.2d 357, 358 (2006). The State’s evidence of defendant’s guilt was
extensive. The State’s witness Reginald Williams testified that he visited the victim
on the night of her murder. Id. at 283, 623 S.E.2d at 359. “Shortly after 9:00 p.m.,
they heard a crash at the back door[,]” so the victim “went to the back door and started
yelling ‘Terraine, stop.’ ” Id. Williams feared for his life, so he ran out the front door
and located a bus driver, who called 911 for him. Id. Williams testified that the
victim feared defendant and was afraid he was going to do something to hurt her. Id.5
STATE V. BYERS
ARROWOOD, J., dissenting.
He also testified that the victim “previously had allowed him to listen to telephone
messages left for her by defendant, her ex-boyfriend. In one message, defendant
stated he thought [the victim] was messing with somebody ‘and when he found out
who it was, he was gonna kill them[,]’ ” which is why the witness fled. Id.Additionally, one of the victim’s neighbors testified that she observed
defendant near the back door of the victim’s apartment around 8:00 p.m., and police
observed defendant coming out of the victim’s apartment through a broken window
in a door when they arrived on the scene. Id. Defendant told the officers “that a
female lay inside the apartment, and she was hurt. While speaking, he turned, re-
entered the apartment” and attempted to flee. Id.An officer testified he had responded to a domestic call at the victim’s residence
twice in the eleven days prior to the murder because defendant had been released
from jail after being locked up for domestic violence and had “returned to bother” the
victim. Id. Additional officers testified to prior incidents of domestic violence
involving defendant and the victim. Id. at 283, 623 S.E.2d at 359-60.
During the trial, the State presented DNA evidence analyzing
fingernail scrapings from defendant’s hands; a blood stain
from a couch cushion; a swab from a knife; a swab from a
knife blade; and blood stains from various places in the
apartment, including the upper handrail of the stairway.
The fingernail scrapings from defendant’s right hand
contained a mixture of DNA from the victim and defendant,
with the majority contributed by defendant. The left
fingernail scrapings taken from defendant revealed the
6
STATE V. BYERS
ARROWOOD, J., dissenting.
victim contributed the majority of the DNA in the sample.
The DNA in the blood stain on the upper handrail and the
couch matched defendant’s. The DNA in the blood stains
from the knife and the knife blade matched the victim.
Id. at 285, 623 S.E.2d at 360. Although the blood on defendant’s clothing did not
undergo DNA testing, defendant stipulated at trial that it was the victim’s blood on
the clothing.
In contrast, defendant did not present any evidence at trial. Id. at 285, 623
S.E.2d at 360. Furthermore, the record before us, beyond the motion’s allegations,
does not support his claim that defendant presented a defense at trial that there was
a second perpetrator, or his allegations that he made specific statements about a
second perpetrator at the scene. I do note that the record contains a narrative report
from reporting officer Jeff R. Shelton that upon his arrival to the crime scene he saw
defendant exiting the back door of the victim’s apartment and he told the officers
“there was someone else inside” before he fled from the officers, however, I do not
think this is enough evidence to support defendant’s allegation that he has
maintained there was a second perpetrator.
Thus, in light of the overwhelming evidence of defendant’s guilt and dearth of
evidence pointing to a second perpetrator, defendant did not meet his burden to prove
by a preponderance of the evidence every fact necessary to establish materiality, and
the trial evidence was sufficient to dictate the trial court’s ultimate conclusion on
materiality, as in Lane. Accordingly, I would hold that no reasonable probability
7
STATE V. BYERS
ARROWOOD, J., dissenting.
exists under the facts of this case that a jury would fail to convict defendant and that
the trial court did not err by concluding defendant failed to establish materiality.
Because defendant failed to meet his burden of showing materiality, I need not
address whether the trial court erred by denying his motion for DNA testing prior to
an inventory under N.C. Gen. Stat. § 15A-269(f) (2017). See State v. Tilghman, No.
COA17-1308, __ N.C. App. __, __, __ S.E.2d __, __, 2018 WL 4700630, slip op. at 11
(N.C. Ct. App. Oct. 2, 2018) (“Defendant failed to meet his burden of showing
materiality. Accordingly, the trial did not err by denying his motion for DNA testing
prior to an inventory under N.C. Gen. Stat. § 15A-269(f).”).
8