State v. Alexander

• Decision Date: 21 April 2020
• Docket Number: No. COA19-202,COA19-202
• Citation: 271 N.C.App. 77,843 S.E.2d 294
• Parties: STATE of North Carolina v. Kelvin Alphonso ALEXANDER, Defendant.
• Court: North Carolina Court of Appeals

271 N.C.App. 77

843 S.E.2d 294

STATE of North Carolina

v.Kelvin Alphonso ALEXANDER, Defendant.

No. COA19-202

Court of Appeals of North Carolina.

Filed: April 21, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J. Uicker, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M. Gomez and Nicholas C. Woomer-Deters, for the Defendant.

DILLON, Judge.

Defendant Kelvin Alphonso Alexander appeals an order denying his postconviction motion to test DNA evidence and fingerprints in relation to a murder he pleaded guilty to almost three decades ago in 1993.

I. Background

Early one morning in September 1992, two men robbed a gas station in Norlina. During the robbery, one of the men shot and killed the gas station attendant. A witness told police that she saw the two men fleeing the scene and that one of the men was Defendant, someone she had been acquainted with most of her life.

In October 1992, Defendant was indicted for first-degree murder and armed robbery in connection with the incident. Defendant pleaded guilty to second-degree murder, and the State dismissed the robbery charge as part of a plea deal.

In March 2016, Defendant filed a motion to test the DNA and fingerprints on the shell casings/projectile found at the gas station after the killing. He alleged in his motion that in 2004 an informant who was pleading guilty to an unrelated federal crime told authorities that a Mr. Terry had admitted to him to the 1992 Norlina murder/robbery shortly after it had occurred. Further, Defendant alleged that the informant helped Mr. Terry retrieve the murder weapon from some woods near the gas station. However, the record reflects that Mr. Terry testified at a hearing that he was not involved in the incident, that he never confessed to the informant or anyone else to the Norlina murder/robbery, and that he did not even know Defendant.

The trial court denied Defendant's motion for post-conviction, DNA testing. Defendant appealed.

II. Analysis

There are essentially two issues before us. First, may a defendant who has pleaded guilty seek post-conviction DNA testing under N.C. Gen. Stat. § 15A-269 (2015)? Second, if so, has Defendant here met his burden of showing that the results of such testing would be material to his defense?

A. Availability of Post-Conviction Testing Following a Guilty Plea

The State argues that, even if the results of any testing would prove material to show Defendant's innocence, Defendant is not entitled to seek testing under Section 15A-269 because he pleaded guilty to the murder. Indeed, the Section states that a defendant must show that testing would be "material to the defendant's defense ," N.C. Gen. Stat. § 15A-269(a)(1) (emphasis added), and that testing is warranted only if "there exists a reasonable probability that the verdict would have been more favorable to the defendant" had the requested DNA been tested earlier. N.C. Gen. Stat. § 15A-269(b)(2) (emphasis added). The State argues in its brief that "[t]he plain meaning of ‘defense’ and ‘verdict’ [in Section 15A-269 ] presupposes the existence of a trial and a determination of guilt based on evidence presented to the fact finder," and that a defendant who pleads guilty has put up no defense and results in a conviction without a verdict.

Based on controlling precedent, we conclude that Defendant is not disqualified from seeking post-conviction DNA testing merely for having pleaded guilty. Specifically, in June 2018, our Court held that a defendant was not automatically barred from seeking post-conviction DNA testing merely because he entered a plea of guilty. State v. Randall , 259 N.C. App. 885, 887, 817 S.E.2d 219, 221 (2018). In reaching this conclusion, the Randall panel relied on language from an opinion by our Supreme Court that " ‘[i]f 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.’ " Id. at 887, 817 S.E.2d at 220 (quoting State v. Lane , 370 N.C. 508, 518, 809 S.E.2d 568, 575 (2018) ). The Randall panel then reasoned that there may be rare situations where there is a reasonable probability that a defendant would not have pleaded guilty in the first instance and would have not otherwise been convicted had he had the results of DNA testing when faced with the charges. See id . at 887, 817 S.E.2d at 221.

For example, suppose that an innocent person is charged with a murder based on the statements of several (mistaken) eyewitnesses. It may be that this innocent defendant will plead guilty to second-degree murder rather than risk being found guilty of first-degree murder and sentenced to death. However, suppose further that certain DNA found at the scene conclusively belonged to the actual killer. In that situation, there is a reasonable probability that the outcome would have been different had the results of DNA testing been available to the innocent defendant before he decided to plead guilty. There is a reasonable probability that he would have pleaded not guilty and that the DNA would point to someone who merely looked like him, leading to his acquittal or to the charges being dropped.

We recognize the argument that the word "verdict" appearing in Section 15A-269 suggests that our General Assembly intended for post-conviction, DNA testing to be available only where there has been an actual verdict rendered. And there is no verdict in a matter where a defendant has pleaded guilty. But there is a strong counter-argument that the General Assembly did not intend for the word "verdict" to be construed in such a strict, legal sense. Rather, the General Assembly intended for "verdict" to be construed more broadly, to mean "resolution," "judgment" or "outcome" in a particular matter. To read "verdict" in a strict, legal sense would lead to an absurd result, clearly not intended by the General Assembly. That is, any defendant who pleads "not guilty" but convicted by a judge after a bench trial would not be eligible to seek post-conviction DNA testing if a strict interpretation of "verdict" is applied: only juries (and not judges) render verdicts in a strict, legal sense.¹

We note that a few months after our Court decided Randall , our Supreme Court in September 2018 affirmed, per curiam without any explanation, an unpublished opinion of our Court in which we suggested that post-conviction DNA testing was not available to defendants who had pleaded guilty.

State v. Sayre , 255 N.C. App. 215, 803 S.E.2d 699, 2017 WL 3480951, 2017 N.C. App. LEXIS 696 (2017) (unpublished), aff'd per curiam , 371 N.C. 468, 818 S.E.2d 101 (2018).

Specifically, in that case, we held that a defendant was not entitled to postconviction DNA testing because (1) the defendant failed to show how testing would be material to show that he was not the perpetrator and (2) "by entering into a plea agreement with the State and pleading guilty, defendant presented no ‘defense’ pursuant to N.C. Gen. Stat. § 15A-269(a)(1)." Id ., 2017 WL 3480951, at *2, 2017 N.C. App. LEXIS 696 at *5. However, only the first issue was before the Supreme Court on appeal, as that issue was the only basis for the dissent from our Court, and the defendant did not seek review of the second issue. See id ., 2017 WL 3480951, at *2, 2017 N.C. App. LEXIS 696 at *6 (Murphy, J., dissenting); see also N.C. R. App. P. 16(b) ; see also Clifford v. River Bend Plantation, Inc. , 312 N.C. 460, 463, 323 S.E.2d 23, 25 (1984) ("When an appeal is taken pursuant to [ N.C. Gen. Stat. § 7A-30(2) ], the only issues properly before the Court are those on which the dissenting judge in the Court of Appeals based his dissent.").Therefore, the Supreme Court's per curiam affirmance was only on this first issue, that the defendant failed to show that testing would be material in that case.

B. Materiality

Section 15A-269 permits a defendant to obtain post-conviction DNA testing if he meets his burden of showing that the results of such testing, among other things, would be "material" to his defense. N.C. Gen. Stat. § 15A-269.

Our Supreme Court has held that "[a] trial court's determination of whether defendant's request for postconviction DNA testing is ‘material’ to his defense, as defined in N.C.G.S. § 15A-269(b)(2), is a conclusion of law, and thus we review de novo the trial court's conclusion that defendant failed to show the materiality of his request." State v. Lane , 370 N.C. 508, 517-18, 809 S.E.2d 568, 574 (2018).

Further, whether evidence is "material" to a defendant's defense is determined by whether "there exists a reasonable probability that the verdict would have been more favorable to the defendant." Id. at 519, 809 S.E.2d at 575. It is the defendant's burden, though, to show such materiality is present. Id. at 518, 809 S.E.2d at 574.

Here, Defendant contends that the requested DNA and fingerprint testing is material because the evidence "would exculpate [Defendant] by corroborating [the informant's] testimony" about Mr. Terry's involvement in the murder/robbery. We note, however, there was substantial evidence of Defendant's guilt, including (1) the eyewitness who saw Defendant fleeing the scene; (2) Defendant's admission that he was at the scene during the investigation of the crime; and (3) Defendant's admission, through his guilty plea, that he, in fact, committed the crime.

We conclude that Defendant has failed to show how it is reasonably probable that he would not been convicted of at least second-degree murder based on the results of the DNA and fingerprint testing. That is, the presence of another's DNA or fingerprints on this or other evidence would not necessarily exclude Defendant's involvement in the crime. The presence of another's DNA or fingerprints could be explained by the possibility that someone else handled the casings/projectile prior to the crime or that the DNA or fingerprints are from Defendant's accomplice, as there...