State v Autry
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-274 NORTH CAROLINA COURT OF APPEALS Filed: 6 September 2011 STATE OF NORTH CAROLINA v. Sampson County Nos. 85 CRS 9027-33, 9458-60 TIMOTHY AUTRY Appeal by defendant from order entered 12 October 2010 by Judge Ripley E. Rand in Sampson County Superior Court. Heard in the Court of Appeals 22 August 2011. Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant. MARTIN, Chief Judge. Defendant appeals from the denial of his second motion for post-conviction DNA testing. We find no error. On 25 March 1986, defendant was convicted by a jury of three counts of first-degree sex offense, two counts of firstdegree rape, one count of first-degree kidnapping, two counts of second-degree sex offense, one count of second-degree rape, and one count of impersonating a law enforcement officer. The trial -2court sentenced defendant to five life sentences plus 106 years imprisonment. Defendant appealed, and the Supreme Court found no error in defendant s trial. State v. Autry, 321 N.C. 392, 404, 364 S.E.2d 341, 348 (1988). On 20 August 2002, defendant filed his first motion for post-conviction DNA testing, pursuant to N.C.G.S. ยง 15A-269. The trial court allowed defendant s motion on 31 March 2004, and approximately eight different types of evidence from defendant s trial were sent to the State Bureau of Investigation for DNA testing. However, testing revealed that none of the items contained any DNA or other biological evidence that implicated defendant or any other perpetrator. Following a hearing, the trial court found that the DNA results were not favorable to defendant and denied defendant s motion for relief. Defendant s petition for writ of certiorari seeking review of the trial court s order was denied. On 3 November 2008, defendant filed a second motion for post-conviction DNA additional items. testing, testing of twelve The trial court conducted a hearing on the motion on 3 June 2010. under advisement. requesting The trial court then took the matter In an order entered 12 October 2010, the court denied defendant s motion after making detailed findings -3of fact and conclusions of law. The trial court ultimately concluded that defendant failed to show that additional DNA testing would create a reasonable probability that the verdict would have been more favorable to the defendant. From this order, defendant appealed. Counsel appointed to represent defendant asserts that she has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has also shown to the satisfaction of this Court that she has complied with the requirements of Anders v. California, 386 U.S. 738, 744-45, 18 L. Ed. 2d 493, 498 (1967), and State v. Kinch, 314 N.C. 99, 102-03, 331 S.E.2d 665, 666-67 (1985), by advising defendant of his right to file written arguments with this Court and providing him with the documents necessary for him to do so. Defendant contains has articles purported on DNA to file testing a pro and se brief, several which documents pertaining to his trial, previous appeal, and previous motion for DNA testing. Defendant s purported pro se brief contains no arguments for this Court s review. we have fully examined the record In accordance with Anders, to determine whether any -4issues of arguable merit appear therefrom or whether the appeal is wholly frivolous. frivolous. We Furthermore, we conclude have the examined possible prejudicial error and found none. No error. Judges HUNTER, JR. and THIGPEN concur. Report per Rule 30(e). appeal the is wholly record for
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