State v. Collins

NO. COA13-1043

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Craven County

No. 03 CRS 56121

ELWOOD WARREN COLLINS

Appeal by Defendant from Order entered 11 April 2013 by

Judge Benjamin G. Alford in Craven County Superior Court. Heard

in the Court of Appeals 22 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General

Laura E. Parker, for the State.

Richard J. Costanza for Defendant.

STEPHENS, Judge.

Procedural History and Evidence

This case arises from Defendant Elwood Warren Collins’s

motion for post-conviction DNA testing. On 22 October 2003,

Defendant was indicted for first-degree murder in the death of

Christina Lee. On 6 May 2005, Defendant pled guilty to second-

degree murder pursuant to the United States Supreme Court’s

opinion in North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d

162 (1970) (determining that a court may accept a plea of guilty

-2-

to second-degree murder when the State has strong evidence of

guilt of first-degree murder even though the defendant claims

that he is innocent, if the defendant, represented by competent

counsel, intelligently concludes that he should plead guilty to

second-degree murder rather than be tried for first-degree

murder). As a result, the trial court sentenced Defendant in the

presumptive range to an active term of 157 to 198 months in

prison.

More than four years later, on 28 December 2009, Defendant

filed a pro se motion seeking post-conviction DNA testing on

certain items of evidence related to Lee’s death. The trial

court appointed counsel to represent Defendant on 10 February

2010, and Defendant filed an amended affidavit in support of his

motion for genetic testing on 24 March 2010. The State filed an

answer contesting Defendant’s motion on 7 December 2012.1 A

proceeding on the motion was held on 12 March 2013, and counsel

appeared for both sides. According to the trial court, the

proceeding was conducted to determine “whether . . .

[Defendant’s] motion meets the threshold requirements of the

statute, and if so, record a hearing [at] which time the State

1

The record contains no explanation for the remarkable delay in

the filing of the State’s answer.

-3-

and [D]efendant will be allowed to present further evidence in

support of their positions.”

The parties have stipulated that they appeared before the

trial court two days later, on 14 March 2013, “to address the

request for post[-]conviction DNA testing.” According to this

stipulation, “[t]he parties agreed that [the trial court] could

make a ruling based on the motion itself and the State’s

response.” That afternoon, the trial court contacted counsel for

the parties by e-mail, indicating that Defendant’s motion was

denied and stating that

Defendant has failed to show how the DNA

material to be tested is material to his

defense or what th[e] ‘newer and more

accurate testing’ consists of or how said

results would be significantly more accurate

and probative of the identity of the

perpetrator. The mere mouthing of these

conclusory statements, absent more, [is]

insufficient to carry . . . [D]efendant’s

burden on this issue.

The e-mail directed the State to draft an order denying the

motion, which would be circulated to defense counsel and then

executed by the trial court. The court entered its written order

denying the motion on 11 April 2013. Defendant appeals.

Discussion

On appeal, Defendant argues (1) that the trial court’s 11

April 2013 order is null and void for lack of jurisdiction, or,

-4-

alternatively, (2) that the trial court erred in denying

Defendant’s motion for post-conviction DNA testing. We disagree.

I. Jurisdiction

Whether a trial court has subject-matter

jurisdiction is a question of law, reviewed

de novo on appeal. Subject-matter

jurisdiction involves the authority of a

court to adjudicate the type of controversy

presented by the action before it. Subject-

matter jurisdiction derives from the law

that organizes a court and cannot be

conferred on a court by action of the

parties or assumed by a court except as

provided by that law. When a court decides a

matter without the court’s having

jurisdiction, then the whole proceeding is

null and void, i.e., as if it had never

happened.

McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592

(2010) (citations and internal quotation marks omitted; italics

added).

Defendant argues that the trial court’s 11 April 2013 order

is null and void for lack of jurisdiction because it was filed

out of session and without his consent. In making this argument,

Defendant points out that the proceedings on 12 and 14 March

2013 were held during the 11 March 2013 Criminal Session of

Craven County Superior Court, which concluded well before the

-5-

trial court filed its 11 April 2013 written order.2 For support,

Defendant cites our Supreme Court’s opinion in State v. Trent,

which held that:

[A]n order of the superior court, in a

criminal case, must be entered during the

term, during the session, in the county[,]

and in the judicial district where the

hearing was held.3 Absent consent of the

parties, an order entered in violation of

these requirements is null and void and

without legal effect.

2

For purposes of addressing Defendant’s argument, we take

judicial notice of the Division II calendar of superior courts

for the spring 2013 term, available at

http://www.nccourts.org/Courts/

CRS/Calendars/Documents/spring2013-statewide.pdf. See generally

Baker v. Varser, 239 N.C. 180, 186, 79 S.E.2d 757, 761–62 (1954)

(taking judicial notice of the assignment of trial judges to

hold court). According to the information in that calendar,

Judge Alford was assigned to Superior Court Division II,

judicial district 3B. The spring term was set to begin January 7

and end July 1. Beginning 11 March 2013, Judge Alford was

scheduled to hold the criminal and civil sessions of Craven

County Superior Court, which were set to last for one week.

Judge Alford was also scheduled to preside over the 18 March

2013 civil and criminal sessions of Craven County Superior

Court, which were set to last for another week. Craven County

Superior Court was not in session during the week of 8 April

2013, and Judge Alford was assigned instead to preside over the

criminal and civil sessions of Carteret County Superior Court.

3

“The use of ‘term’ has come to refer to the typical six-month

assignment of superior court judges, and ‘session’ to the

typical one-week assignments within the term.” Capital Outdoor

Advertising, Inc. v. City of Raleigh, 337 N.C. 150, 154 n. 1,

446 S.E.2d 289, 291 n. 1 (1994).

-6-

359 N.C. 583, 585, 614 S.E.2d 498, 499 (2005). We are not

persuaded by Defendant’s argument.

In Trent, the defendant was charged with and convicted of

robbery with a dangerous weapon. Id. at 584, 614 S.E.2d at 499.

Before trial, the defendant filed two motions to suppress. Id. A

hearing on the motions was held on 11 October 2001 and continued

to 17 January 2002. Id. The trial court declined to rule at the

end of the January hearing and announced its determination seven

months later, in the following term, denying the defendant’s

motions. Id. The defendant appealed, and our Supreme Court

granted a new trial because the court’s order was “null and void

since it was entered out of term and out of session.” Id. at

586, 614 S.E.2d at 500.

In so holding, the Trent Court relied on its previous

opinion in State v. Boone, 310 N.C. 284, 287–88, 311 S.E.2d 552,

555 (1984). The defendant in Boone was charged with felonious

manufacturing of a controlled substance and felonious possession

of more than one ounce of marijuana. Id. at 284–85, 311 S.E.2d

at 553. He was convicted of the latter. Id. at 285, 311 S.E.2d

at 553. Prior to trial, he moved to suppress the marijuana in a

motion heard on 16 and 18 June 1981. Id. at 286, 311 S.E.2d at

554. The trial court denied the motion by order signed in the

-7-

following session, on 25 June 1981. Because the order was signed

outside the session in which the motion was heard, our Supreme

Court determined that the defendant was entitled to a new trial.

Id. at 286–87, 311 S.E.2d at 554–55. In so holding, the Court

cited the following general rule:

Judgments and orders substantially affecting

the rights of parties to a cause pending in

the Superior Court at a term must be made in

the county and at the term when and where

the question is presented, and our decisions

on the subject are to the effect that,

except by agreement of the parties or by

reason of some express provision of law,

they cannot be entered otherwise, and

assuredly not in another district and

without notice to the parties interested.

Id. at 287, 311 S.E.2d at 555 (citation and brackets omitted)

(noting that this rule has been consistently applied in both

criminal and civil cases).

In the time between the Court’s opinions in Boone and

Trent, our Supreme Court authored a third opinion, Capital

Outdoor Advertising, Inc. v. City of Raleigh, 337 N.C. at 159,

446 S.E.2d at 294 [hereinafter Capital Outdoor]. In Capital

Outdoor, the plaintiffs filed a complaint challenging the

constitutionality of a city ordinance. Id. at 153, 446 S.E.2d at

291. The defendant moved to dismiss the complaint under Rule

12(b)(6), and the motion was heard on 29 October 1991, during

-8-

the 28 October 1991 session. Id. at 154, 446 S.E.2d at 292. The

trial court granted the motion on 4 November 1991, after the

expiration of the previous session. Id. Relying on the “ample

power” of the legislature “to establish, define[,] and limit the

jurisdiction of the Superior Courts,” the Supreme Court affirmed

the trial court’s out-of-session order under section 7A-47.1 and

Rule 6(c) of the Rules of Civil Procedure as “two separate

statutes authorizing the execution and entry of the dismissal

order of the trial judge out of session . . . .” Id. at 155–59,

446 S.E.2d at 292–94. Capital Outdoor is controlling precedent

in this case.

As a preliminary matter, we note the apparent contradiction

in these three cases. Boone stated that orders entered out of

session and out of term are invalid based on absence of the

trial court’s jurisdiction and held that the out-of-session

order in that case was invalid for the same reason. Boone, 310

N.C. at 287–88, 311 S.E.2d at 555. Capital Outdoor implicitly

overruled Boone as it pertains to orders entered out of session.

Capital Outdoor, 337 N.C. at 158, 446 S.E.2d at 294. Trent later

applied Boone to determine that the trial court erred by

-9-

entering its order “out of term and out of session.”4 Though the

language in Trent suggests that it was reinstating Boone in its

entirety, the holding in that case is limited to an order

entered out of term. Trent, 359 N.C. at 586, 614 S.E.2d at 500.

Relying on established principles of stare decisis, we read

these cases together to the extent that they represent a

reasonable, practicable, and stable interpretation of the law.

See Bulova Watch Co. v. Brand Distribs. of N. Wilkesboro, Inc.,

285 N.C. 467, 473, 206 S.E.2d 141, 145–46 (1974) (“The law must

be characterized by stability if [people] are to resort to it

for rules of conduct. These considerations have brought forth

the salutary doctrine of stare decisis which proclaims, in

effect, that where a principle of law has become settled by a

series of decisions, it is binding on the courts and should be

followed in similar cases.”). Applying those principles to

Boone, Capital Outdoor, and Trent, the resulting rule is that

the superior court is divested of jurisdiction when it issues an

out-of-term order substantially affecting the rights of the

parties unless that order is issued with the consent of the

parties. If the court issues an order out of session, however,

4

The Trent Court was clearly aware of the Capital Outdoor

opinion, citing it for the definition of “term” and “session.”

Trent, 359 N.C. at 585, 614 S.E.2d at 499.

-10-

the court is not divested of jurisdiction as long as either

section 7A-47.1 or Rule 6(c) is applicable. See Trent, 359 N.C.

at 586, 614 S.E.2d at 500; Capital Outdoor, 337 N.C. at 158, 446

S.E.2d at 294.

Rule 6(c) has no bearing on this case. It is a rule of

civil procedure, and this is a criminal matter. However, section

7A-47.1 is a general rule of judicial procedure and applies to

both criminal and civil cases. See N.C. Gen. Stat. § 7A-2(1)

(stating that the purpose of Chapter 7A is to create a place for

“all statutes concerning the organization, jurisdiction[,] and

administration of each division of the General Court of

Justice”). In Capital Outdoor, the Court stated that section 7A-

47.1 and Rule 6(c) are separate authorities for an order entered

out of session. Therefore, either may be used to establish the

trial court’s jurisdiction, if applicable. Here, section 7A-47.1

applies to validate the trial court’s out-of-session order.

Section 7A-47.1, entitled “[j]urisdiction in vacation or in

session,” provides as follows:

In any case in which the superior court in

vacation has jurisdiction, and all the

parties unite in the proceedings, they may

apply for relief to the superior court in

vacation, or during a session of court, at

their election. Any regular resident

superior court judge of the district or set

of districts as defined in G.S. 7A-

-11-

41.1(a)5 and any special superior court judge

residing in the district or set of districts

and the judge regularly presiding over the

courts of the district or set of districts

have concurrent jurisdiction throughout the

district or set of districts in all matters

and proceedings in which the superior court

has jurisdiction out of session; provided,

that in all matters and proceedings not

requiring a jury or in which a jury is

waived, any regular resident superior court

judge of the district or set of districts

and any special superior court judge

residing in the district or set of districts

shall have concurrent jurisdiction

throughout the district or set of districts

with the judge holding the courts of the

district or set of districts and any such

regular or special superior court judge, in

the exercise of such concurrent

jurisdiction, may hear and pass upon such

matters and proceedings in vacation, out of

session or during a session of court.

N.C. Gen. Stat. § 7A-47.1 (2013) (re-codified in 1969 from N.C.

Gen. Stat. § 7-65).

“[I]n vacation” jurisdiction, as described in section 7A-

47.1, arises from the trial court’s

general jurisdiction of all “in chambers”

matters arising in the district. The general

“vacation” or “in chambers” jurisdiction of

a regular judge arises out of his general

authority. Usually it may be exercised

5

“Regular resident superior court judge of the district or set

of districts” means a regular superior court judge who is a

resident judge of any of the superior court districts

established under section 7A-41. N.C. Gen. Stat. § 7A-41.1

(2013).

-12-

anywhere in the district and it is never

dependent upon and does not arise out of the

fact that [the judge] is at the time

presiding over a designated term of court or

in a particular county. As to [the judge],

it is limited, ordinarily, to the district

to which he is assigned by statute.

Baker v. Varser, 239 N.C. 180, 188, 79 S.E.2d 757, 763 (1954)

(citations and internal quotation marks omitted). The Baker

court’s description is based on a prior version of section 7A-

47.1, then-codified as section 7-65. See Baker, 239 N.C. at 187–

88, 79 S.E.2d at 763; see also 1969 N.C. Sess. Laws 1377, ch.

1190, sec. 47 (re-codifying section 7-65 as section 7A-47.1).

Section 7-65 is substantially similar to section 7A-47.1 except

that the word “session,” as used in 7A-47.1, was written as

“term” or “term time” in section 7-65. See Baker, 239 N.C. at

187–88, 79 S.E.2d at 763. The change from “term” and “term time”

to “session” tracks the 1962 amendments to the North Carolina

Constitution, which “changed the word ‘term’ to ‘session’ when

referring to the period of time during which superior court

judges are assigned to court . . . .” See Capital Outdoor, 337

N.C. at 154 n.1, 446 S.E.2d at 291 n.1; see also N.C. Const.

art. IV, § 9(2). This change comports with the rule discussed

above, i.e., that in vacation jurisdiction applies only to

orders entered out of session, not those entered out of term.

-13-

We note that Baker’s description of in chambers

jurisdiction, stating that the exercise of such jurisdiction is

not dependent on the judge’s presence in the county, conflicts

in part with our opinion in House of Style Furniture Corp. v.

Scronce, where we cited the

uniform holding in this jurisdiction that,

except by consent, or unless authorized by

statute, a judge of the [s]uperior [c]ourt,

even in his own district, has no authority

to hear a cause or to make an order

substantially affecting the rights of the

parties, outside the county in which the

action is pending.

33 N.C. App. 365, 369, 235 S.E.2d 258, 260 (1977) (citing Bisnar

v. Suttlemyre, 193 N.C. 711, 138 S.E. 1 (1927)) [hereinafter

House of Style]. Nonetheless, House of Style is not controlling

in this case.

The plaintiffs in House of Style filed their complaint in

Alexander County on 24 September 1975. Id. at 366, 235 S.E.2d at

259. The following year, the defendants moved to dismiss the

plaintiff’s claims and for entry of default judgment. Id. That

motion was heard in Iredell County before a judge of judicial

district 22, which included both Alexander County and Iredell

County. Id. Six days after the hearing, the trial court filed

its order dismissing the plaintiffs’ claims and entering default

-14-

judgment.6 Id. at 367, 235 S.E.2d at 259. On appeal, we vacated

the trial court’s order and judgment because we could not find

any statute authorizing the trial judge to conduct a hearing out

of county. Id. at 369, 235 S.E.2d at 261 (“[The parties] did not

consent for the motion to be heard in Iredell County[,] and our

research fails to disclose any statute authorizing [the judge]’s

action in that county.”).

Though House of Style was filed seventeen years after

Baker, it does not discuss that opinion. See id. In addition,

neither House of Style nor its cited authority, Bisnar,

discusses section 7A-47.1 or its predecessor, section 7-65. See

id.; see also Bisnar, 193 N.C. at 711, 138 S.E. at 1. Instead,

the House of Style Court relies on the “uniform holding”

described above. See House of Style, 33 N.C. App. at 369, 235

S.E.2d at 260. This Court is bound by House of Style as it

pertains to orders in criminal cases arising from hearings

occurring out of county.7 In re Civil Penalty, 324 N.C. 373, 384,

6

Neither our opinion in House of Style nor the record on file

for that case specifies whether the trial court filed its order

in Alexander County or Iredell County. See id.; 909 N.C. App.

Records and Briefs No. 7622SC901, 59–65 (1976).

7

Rule 7(b) of the North Carolina Rules of Civil Procedure was

amended in 2005 to allow motions heard out of county. 2005 N.C.

Sess. L. 163, H.B. 514, section 1. The wording was changed in

2011 to specifically allow motions “in a civil action in a

-15-

379 S.E.2d 30, 36–37 (1989). House of Style provides no

direction, however, on the validity of an order in a criminal

case arising from a valid hearing, but entered while the judge

is sitting in another county. See House of Style, 33 N.C. App.

at 369, 235 S.E.2d at 260. Therefore, pursuant to our

discussion, supra, we conclude that section 7A-47.1 constitutes

statutory authority to justify an order entered in a criminal

case while the judge who heard the case in the proper county is

sitting in another county within the district when the order is

entered. See N.C. Gen. Stat. § 7A-47.1. As a result, House of

Style has no impact on this case because Defendant’s motion was

properly heard in Craven County. Accordingly, Judge Alford’s

out-of-session order is proper even though it was issued while

he was sitting in Carteret County.

Finally, we point out that in chambers jurisdiction under

section 7A-47.1 does not require the consent of the parties. E-B

Grain Co. v. Denton, 73 N.C. App. 14, 24, 325 S.E.2d 522, 528–29

county that is a part of a multicounty judicial district” to be

heard in another county “which is part of that same judicial

district with the permission of the senior resident superior

court judge of that district . . . .” 2011 N.C. Sess. Laws 317,

S.B. 586, section 1. Therefore, our opinion in House of Style is

no longer applicable in civil cases as long as the senior

resident superior court judge permits the case to be heard out

of county. See N.C.R. Civ. P. 7(b)(4) (2013).

-16-

(1985) (“We believe [the trial court judge] clearly had

authority under [section] 7A-47.1 to hear [the] plaintiff’s

motion . . . , even though [the] defendant’s counsel objected.

To interpret the statute [according to Defendant’s argument]

would mean that no superior court judge could hear any matter,

whether in or out of session, without ‘all the parties uniting

in the proceedings.’”). Therefore, as provided by section 7A-

47.1, a trial court may exercise in chambers jurisdiction in a

nonjury matter arising in his or her district to enter an order

out of session and without the consent of the parties. See N.C.

Gen. Stat. § 7A-47.1; Capital Outdoor, 337 N.C. at 158, 446

S.E.2d at 294.

Here, there is no evidence in the record to indicate that

the parties consented to the trial court’s entry of its 11 April

2013 order out of session. Nonetheless, Defendant’s motion for

post-conviction DNA testing did not require the presence of a

jury, the hearing on the motion was conducted while Judge Alford

was sitting in Craven County Superior Court, and Judge Alford

remained in District II at the time he filed the written order.

For these reasons, section 7A-47.1 operated to allow the trial

court to issue this out-of-session order. Accordingly,

Defendant’s first argument is overruled.

-17-

II. Defendant’s Motion for Post-Conviction DNA Testing

The standard of review for the denial of a motion for post-

conviction DNA testing is

analogous to the standard of review for a

motion for appropriate relief. 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. Gardner, __ N.C. App. __, __, 742 S.E.2d 352, 354

(2013). At the hearing on a motion for appropriate relief, the

defendant has “the burden . . . of establishing the facts

essential to his claim by a preponderance of the evidence.”

State v. Hardison, 143 N.C. App. 114, 120, 545 S.E.2d 233, 237

(2001) (citation and internal quotation marks omitted). A

conclusory statement, alone, is not sufficient to satisfy this

burden. Gardner, __ N.C. App. at __, 742 S.E.2d at 356 (stating

that the defendant’s burden of showing materiality in a motion

for post-conviction DNA testing “requires more than [a]

conclusory statement that the ability to conduct the requested

DNA testing is material to [his] defense”) (citations, internal

quotation marks, and brackets omitted).

On appeal, Defendant argues that the trial court’s order

should be reversed because his motion and amended affidavit,

-18-

together, demonstrated the necessary conditions for the court to

grant his motion for post-conviction DNA testing under section

15A-269. In response, the State asserts that section 15A-269 is

not applicable in this case. Alternatively, the State contends

that Defendant failed to show how DNA testing was material to

his case and failed to demonstrate that there are “newer and

more accurate tests that would be significantly more accurate

and probative of the identity of the [true] perpetrator.”

Finally, the State argues that — even if the allegations in the

affidavit support a finding of materiality — Defendant waived

his right to test any evidence before a jury by entering an

Alford guilty plea. We affirm the trial court’s order on grounds

that Defendant failed to adequately establish that newer and

more accurate tests would identify the perpetrator or contradict

prior test results. We do not address the State’s argument that

Defendant is not entitled to post-conviction DNA testing because

he entered an Alford plea.

(1) Background

Under section 15A-269,

(a) A defendant may make a motion . . . for

performance of DNA testing . . . if the

biological evidence meets all of the

following conditions:

-19-

(1) [The evidence is] material to the

defendant’s defense.

(2) [The evidence is] related to the

investigation or prosecution that

resulted in the judgment.

(3) [The evidence 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.

(b) The court shall grant the motion for DNA

testing . . . upon its determination that:

(1) The conditions set forth in . . .

subsection (a) . . . 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. Gen. Stat. § 15A-269 (2013) (emphasis added).

-20-

Given the allegations in Defendant’s motion and amended

affidavit,8 the trial court made the following pertinent findings

of fact and conclusion of law:

10. . . . [D]efendant has failed stated

[sic] how . . . additional DNA testing would

be material to his defense. . . .

[D]efendant merely makes a conclusory

statement.

11. . . . [D]efendant has failed to show how

“newer and more accurate testing” [w]ould be

significantly more accurate and probative of

the identity of the perpetrator.

. . . .

. . . [D]efendant has failed to meet all

requirements of § 15A-269.

On appeal, Defendant concedes that the statements in his

pro se motion are insufficient to justify post-conviction DNA

testing under section 15A-269, but argues that the additional

statements in his amended affidavit sufficiently “discuss [his]

reasoning for entering his Alford plea, the DNA mixture that did

not exclude or isolate him, his cohabitation with the victim,

and his understanding that more accurate methods of DNA testing

8

Though the State does not contest the propriety of Defendant’s

amended affidavit, we note that amendments to the analogous

motion for appropriate relief are permissible under N.C. Gen.

Stat. § 15A-1415. Thus, amendments to a motion for post-

conviction DNA testing are similarly permissible pursuant to

standards prescribed in section 15A-1415.

-21-

are now available” to justify relief under section 15A-269. We

disagree.

(2) Applicability of Section 15A-269

The State argues that section 15A-269 is not applicable in

this case because Defendant seeks testing to show a lack of

biological evidence. For support, Defendant cites to our opinion

in State v. Brown, where we commented that section 15A-269

“provides for testing of ‘biological evidence’ and not evidence

in general.” 170 N.C. App. 601, 609, 613 S.E.2d 284, 289 (2005),

superseded by statute on other grounds, State v. Norman, 202

N.C. App. 329, 332–33, 688 S.E.2d 512, 515 (2010). This argument

is without merit.

In Brown, the defendant, a former assistant principal, was

indicted for and convicted of attempted second-degree rape of a

former student. Id. at 602, 613 S.E.2d at 285. Defendant did not

appeal that conviction. Id. at 603, 613 S.E.2d at 285. As a

result, evidence in the form of a torn blouse and pants was

turned over to the local police department. Id. Five months

later, Defendant filed a motion for post-conviction DNA testing

of a torn blouse, a pair of pants, an undergarment, nail

clippings and hair samples, and other items related to his

conviction. Id. at 603, 609, 613 S.E.2d at 285, 288–89. Despite

-22-

this motion, the blouse and jeans were destroyed after the

victim indicated that she did not want them returned. Id. The

other evidence had never been collected and was not available

for testing. See id. at 603–04, 613 S.E.2d at 286. One month

later, the trial court denied the defendant’s motion because “no

. . . testing could be conducted.” Id. at 603, 613 S.E.2d at

286.

On appeal, this Court declined to review the trial court’s

decision because Article 13, which deals with the DNA database

and databank, did not at that time include a provision for

appellate review of an order denying post-conviction DNA

testing.9 Id. at 607, 613 S.E.2d at 287. After concluding that we

had no authority to review the defendant’s petition for writ of

certiorari, we also declined to review the matter pursuant to

Rule 2 of the North Carolina Rules of Appellate Procedure. Id.

at 608, 613 S.E.2d at 288. In so holding, we explained that no

manifest injustice was present in the case because the defendant

was asking for testing to “show a lack of DNA evidence, thereby

corroborating his testimony[, which denied the allegations made

at trial].” Id. at 609, 613 S.E.2d at 288–89. Commenting that

9

Appellate review of an order denying a defendant’s motion for

DNA testing is now appealable as of right under section 15A-

270.1 (2013).

-23-

section 15A-269 did not apply when a defendant seeks to

demonstrate a “lack of biological evidence” and noting that the

defendant was only charged with attempted rape, not actual rape,

we concluded that “the absence of DNA evidence would not

necessarily exonerate [the] defendant.” Id. at 609, 613 S.E.2d

at 289.

Unlike the defendant in Brown, Defendant here is seeking

“[a] conclusive test on the biological and other samples taken

into evidence in this matter.” He is not seeking to show a lack

of DNA evidence. Accordingly, Brown does not operate to bar

Defendant’s motion.

(3) Accuracy and Probative Value of Newer Tests

The State also argues that the trial court properly denied

Defendant’s motion because Defendant failed to demonstrate “how

‘newer and more accurate testing’ would be significantly more

accurate and probative of the identity of the perpetrator.” We

agree.

In his pro se motion for post-conviction DNA testing,

Defendant referenced discussions with “DNA [e]xperts,” described

a “new technique known as ‘Touch DNA’ that allows [f]or the

amplification and analysis of very minute amounts [o]f cellular

/ DNA material,” and alleged that the items sought to be tested

-24-

“can now be subjected to newer and more accurate testing which

would provide results that are significantly more accurate and

probative of the identity of the perpetrator [o]r accomplice, or

have a reasonable probability of . . . contradicting prior test

results.” In his amended affidavit, Defendant provided the

following additional information:

7. It is my understanding that, since 2003

when this case was initiated, more

accurate methods of DNA testing have been

developed and put in place in forensic

laboratories, and such methods would have

a reasonable probability of contradicting

the prior test results.

8. Had more accurate DNA testing methods

excluded me as the perpetrator of this

crime, the result of this case would have

been different, inasmuch as I would not

have entered an Alford guilty plea, but

would have submitted the matter to a jury

at trial.

These allegations do not establish that the requested DNA tests

are “significantly more accurate and probative of the identity

of the perpetrator or accomplice or have a reasonable

probability of contradicting prior test results” under section

15A-269(a)(3)(b).

As we noted in State v. Foster, a mere conclusory statement

is insufficient to establish materiality. __ N.C. App. __, __,

729 S.E.2d 116, 120 (2012). Similarly, such a statement is

-25-

insufficient to establish that a 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. See id. Rather, the 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. See N.C. Gen. Stat. §

15A-269.

In this case, Defendant’s mere allegations that “newer and

more accurate testing” methods exist, “which would provide

results that are significantly more accurate and probative of

the identity of the perpetrator [o]r accomplice, or have a

reasonable probability of . . . contradicting prior test

results” are incomplete and conclusory. Even though he named a

new method of DNA testing, he provided no information about how

this method is different from and more accurate than the type of

DNA testing used in this case. Without more specific detail from

Defendant or some other evidence, the trial court could not

adequately determine whether additional testing would be

significantly more accurate and probative or have a reasonable

-26-

probability of contradicting past test results. For these

reasons, we conclude that the court properly denied Defendant’s

motion for post-conviction DNA testing. Accordingly, Defendant’s

second argument is overruled, and the trial court’s order is

AFFIRMED.

Judges STEELMAN and DAVIS concur.