State v. Brown

• Decision Date: 07 June 2005
• Docket Number: No. COA04-316.,COA04-316.
• Citation: 613 S.E.2d 284
• Parties: STATE of North Carolina v. Billy Ray BROWN, Defendant.
• Court: North Carolina Supreme Court

Page 284

613 S.E.2d 284

STATE of North Carolina v. Billy Ray BROWN, Defendant.

No. COA04-316.

Court of Appeals of North Carolina.

June 7, 2005.

Appeal by defendant from order entered 17 December 2003 by Judge W. Russell Duke, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 10 January 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General William P. Hart, for the State.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, New Bern, for defendant-appellant.

GEER, Judge.

Defendant Billy Ray Brown appeals from the trial court's denial of his motion for post-conviction DNA testing under N.C. Gen.Stat. § 15A-269 (2003). The State has argued that the appeal must be dismissed because the statute does not provide for appellate review and because review by writ of certiorari is unavailable. We agree and, accordingly, dismiss defendant's appeal.

Facts and Procedural History

On 25 September 2000, defendant, a former assistant principal at a middle school, was indicted for attempted second degree rape of a former student, R.T. Defendant was convicted on that charge on 15 November 2001, and Judge Thomas D. Haigwood sentenced him to a presumptive sentence of 58 months to 79 months imprisonment. Defendant did not timely notice appeal, but on 24 April 2002, defendant filed a petition for writ of certiorari in this Court, seeking a belated appeal based upon ineffective assistance of counsel. This Court allowed the belated appeal and subsequently upheld defendant's conviction and sentence. State v. Brown, 163 N.C.App. 784, 595 S.E.2d 238 (2004) (unpublished). A full account of the facts are set forth in that opinion.

The facts pertinent to this appeal are as follows. On 11 September 2000, R.T. was at home with her two-year old son. At approximately 2:30 p.m., defendant knocked at R.T.'s door. After defendant entered R.T.'s home, he asked to use her bathroom. When he returned from the bathroom, he made various sexually-related remarks and rubbed his penis through his shorts in front of R.T., causing R.T. to ask defendant to leave. Defendant then asked to use the bathroom a second time, and R.T. attempted to call her father while defendant was in the bathroom. Defendant, however, knocked the phone out of her hand and pushed her against a kitchen bar with his body. He attempted to kiss R.T., ripped her t-shirt open, fondled her breasts, and then threw her to the floor. He struck R.T. in the face, unfastened her jeans, and pulled out his penis. R.T. testified that she never actually saw his penis, but she felt it pressing against her stomach. When R.T. kicked defendant between his legs, defendant got up, banged his head against a lamp, and ran out of the apartment while pulling his shorts up.

Defendant admitted at trial that he had been in R.T.'s house, but testified that they had simply had a conversation. He denied engaging in any of the sexual conduct to which R.T. testified. Specifically, defendant denied ever trying to kiss R.T., ripping her shirt, touching her breasts, throwing her to the ground, unfastening her pants, or rubbing and exposing his penis to her.

On 15 November 2001 — the same day that the jury found defendant guilty of attempted second degree rape — Judge Haigwood signed an "Order for Disposition of Physical Evidence." In the order, the court directed that certain items of evidence — an orange t-shirt and a pair of black jeans — should be returned to R.T. or disposed of in accordance with the law. On 26 December 2001, after defendant had failed to appeal his conviction, the shirt and jeans were turned over to Velvet Blizzard of the Washington Police Department.

On 23 April 2002 — a day prior to filing his petition for writ of certiorari — defendant filed a pro se motion seeking DNA testing pursuant to N.C. Gen.Stat. § 15A-269. Defendant requested that the court order DNA testing of (1) a torn blouse, (2) a pair of pants, (3) "[l]adies undergarment," (4) nail clippings and hair samples, and (5) any other similar evidence from the crime that might be unknown to defendant. Despite defendant's motion and unbeknownst to defendant, the t-shirt and jeans were destroyed by the police on 13 August 2002 after R.T. indicated that she did not want them returned.

Counsel was appointed on 13 September 2002 to represent defendant in connection with his motion for post-conviction DNA testing. That motion was heard before Judge W. Russell Duke, Jr. on 4 September 2003. At the hearing, defendant and his counsel learned for the first time that R.T.'s t-shirt and jeans had already been destroyed. During the hearing, Detective Steve Waters of the Washington Police Department testified that he had inspected the clothing at issue on the night of the incident and had found no evidence of any kind of bodily fluid transfer. He, therefore, did not order any DNA testing prior to the trial of defendant. Additionally, Waters testified that he never obtained any undergarments from R.T. or any nail clippings or hair samples.

On 17 December 2003, the trial court denied defendant's motion for post-conviction DNA testing. In its order, the court found that Detective Waters, who was experienced in handling biological evidence, had examined the victim herself and the clothing she wore during the assault and did not observe any stains or other indication that bodily fluids had been transferred. The court also found that no nail or skin scrapings were collected from either the defendant or the victim because Detective Waters did not observe any scratches or skin irritations. Finally, the court found that the undergarments were never removed from the victim during the commission of the crime. Based upon these findings, the trial court determined that there was "no evidence that any biological evidence was transferred from the Defendant to the victim or the crime scene" and "no evidence that any biological evidence exists from which DNA testing could be conducted." The court concluded that the destruction of the t-shirt and jeans by the Washington Police Department was not done in bad faith and did not prejudice the defendant because there was no evidence that showed biological evidence existed on the clothing.

On 22 December 2003, defendant filed a notice of appeal from the trial court's order. In its appellee brief, the State argued that defendant does not have a right to appeal the trial court's denial of his motion for DNA testing. On 4 January 2005, defendant filed an "Alternative Application to Treat Appeal as a Petition for Writ of Certiorari."

Discussion

A. The Right to Post-Conviction DNA Testing

In 2001, the General Assembly enacted "An Act to Assist an Innocent Person Charged With or Wrongly Convicted of a Criminal Offense in Establishing the Person's Innocence." 2001 N.C. Sess. Laws 282 (hereinafter "the Act"). Under this Act, a criminal defendant, as of 13 July 2001, has a right of access before trial to (1) any DNA analyses performed in connection with his case and (2) "[a]ny biological material, that has not been DNA tested, that was collected from the crime scene, the defendant's residence or the defendant's property." N.C. Gen.Stat. § 15A-267(a) (2003). Additionally, effective 1 October 2001, "a governmental entity that collects evidence containing DNA in the course of a criminal investigation shall preserve a sample of the evidence collected for the period of time a defendant convicted of a felony is incarcerated in connection with that case." N.C. Gen.Stat. § 15A-268(a) (2003).¹ The sample may be disposed of earlier only upon fulfillment of certain conditions, including notification of the defendant and defendant's counsel. N.C. Gen.Stat. § 15A-268(b).

Also effective 1 October 2001, following conviction, a defendant "may make a motion before the trial court that entered the judgment of conviction against the defendant for performance of DNA testing of any biological evidence...." N.C. Gen.Stat. § 15A-269(a). In order to obtain "DNA testing of any biological evidence," the defendant must show that the evidence (1) is material, (2) is related to the investigation or prosecution, and (3) was not previously DNA tested or, if it was tested, current DNA testing would provide results that are significantly more accurate or would have a reasonable probability of contradicting prior test results. Id. The trial court shall grant a motion for post-conviction DNA testing (1) when the conditions set forth in N.C. Gen.Stat. § 15A-269(a) are met and (2) "there exists a reasonable probability that the verdict would have been more favorable to the defendant" if the DNA testing being requested had been conducted. N.C. Gen.Stat. § 15A-269(b).

If a motion for post-conviction DNA testing under N.C. Gen.Stat. § 15A-269 is allowed, the court shall, upon receiving the results of the testing, "conduct a hearing to evaluate the results and to determine if the results are unfavorable or favorable to the defendant." N.C. Gen.Stat. § 15A-270(a) (2003). If the results are not favorable, then the court shall dismiss the motion. N.C. Gen.Stat. § 15A-270(b). If, however, the results are favorable, then the court shall enter an order that "serves the interests of justice" and may (1) vacate and set aside the judgment, (2) discharge the defendant, (3) resentence the defendant, or (4) grant a new trial. N.C. Gen.Stat. § 15A-270(c).

B. The Right to Appeal

In its brief, the State argues that there is no right to appeal the denial of a motion for post-conviction DNA testing. "The right to appeal in a criminal proceeding is purely statutory." State v. Shoff, 118 N.C.App. 724, 725, 456 S.E.2d 875, 876 (1995), aff'd per curiam on other grounds, 342 N.C. 638, 466 S.E.2d 277 (1996). Further, Rule 4(a) of the Rules of Appellate Procedure provides that the appellate courts have jurisdiction over an appeal by "[a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered...