State v. Harris

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-705 NORTH CAROLINA COURT OF APPEALS Filed: 16 December 2014 STATE OF NORTH CAROLINA v. Craven County Nos. 87 CRS 3525, 4136 TIMOTHY ALBERT HARRIS Appeal by defendant from order entered 29 August 2013 by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 10 November 2014. Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Jillian C. Katz, for defendant-appellant. ELMORE, Judge. Defendant appeals from the denial of his motion for postconviction DNA testing. We find no error. On 24 September 1987, defendant was convicted by a jury of first-degree murder and robbery with a dangerous weapon. The State’s evidence showed that defendant and an accomplice drove the victim to a vacant lot, beat him with a club and a rock, -2took his wallet and other items, and dragged him into a wooded area. State v. Harris, 323 N.C. 112, 115-18, 371 S.E.2d 689, 692-93 (1988). The trial court sentenced defendant imprisonment plus a consecutive term of 40 years. appealed, and our Supreme Court found no error. to life Defendant Id. at 132, 371 S.E.2d at 701. On 17 July 2013, defendant filed a pro se motion for postconviction DNA testing pursuant to N.C. Gen. Stat. § 15A-269 (2013), requesting DNA testing of approximately thirteen items which were not previously subjected to testing. conducted a defendant’s hearing motion on in 29 an August order 2013 entered and on The trial court summarily the same denied date. Defendant appeals. Counsel appointed to represent defendant 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, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising defendant of his -3right to file written arguments with this Court and providing him with the documents necessary for him to do so. Defendant has filed a pro se brief in which he claims: (1) that DNA testing would show that his skin cells and fingerprints were not on the murder weapons; (2) that his co-defendant committed the actual murder, but changed his story after taking a plea arrangement; (3) that he was denied a fair and impartial trial due to improper hearsay evidence, juror misconduct, and a lack of DNA testing; and (4) that he should have been convicted of and sentenced to a lesser included charge, namely seconddegree murder. Defendant’s first argument on appeal is without merit. A defendant seeking relief under N.C. Gen. Stat. § 15A-269 must demonstrate that the evidence in question is “material to the defendant’s defense.” N.C. Gen. Stat. § 15A–269(a)(1). defendant bears the burden of showing materiality. A State v. Gardner, ___ N.C. App. ___, ___, 742 S.E.2d 352, 356 (2013). “[T]his burden requires more than the conclusory statement that the ability to conduct the requested DNA testing is material to the defendant’s defense.” omitted). “Favorable Id. (citation and internal quotations evidence is material if there is a reasonable probability that its disclosure to the defense would -4result in a different outcome in the jury’s deliberation.” State v. Hewson, ___ N.C. App. ___, ___, 725 S.E.2d 53, 56 (2012) (emphasis in original) (citations and internal quotations omitted). Here, defendant essentially argues that if the murder weapons were tested, biological evidence would not be found. This result, committed the he argues, actual would murder, show that thereby his co-defendant supporting his defense and exonerating defendant of first-degree murder. trial The jury, however, was instructed on the alternate theory of acting in concert. See Harris, 323 N.C. at 131, 371 S.E.2d at 700. Under this theory, “if two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only particular guilty crime, as but a principal he is also if the guilty other of commits that other crime any committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.” State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997) (citations and internal quotations omitted). Thus, even if the jury believed defendant, it was still free to convict him of firstdegree murder under the theory of acting in concert. even if the murder weapons failed Moreover, to contain any biological -5evidence, such a result still disprove defendant’s defense. would not tend to prove or Accordingly, defendant has failed to show that any DNA testing would be material to his defense. Defendant’s this Court. remaining arguments are not properly before The scope of defendant’s appeal is limited to the trial court’s denial of his motion for DNA testing. Gen. Stat. § 15A-270.1 (2013) (“The See N.C. defendant may appeal an order denying the defendant’s motion for DNA testing under this Article, including by an interlocutory appeal.”). Defendant’s remaining arguments all pertain to purported error at his trial, and are therefore Accordingly, the scope decline we outside of his current to review defendant’s with Anders, we fully appeal. remaining arguments. In accordance have examined the record to determine whether any issues of arguable merit appear therefrom or whether the appeal is wholly frivolous. Because defendant has raised only issues which are meritless or which he is not entitled to raise on appeal from an order denying postconviction DNA frivolous. testing, Furthermore, we we conclude have the appeal examined the possible prejudicial error and found none. Affirmed. is wholly record for -6Judges STEELMAN and DILLON concur. Report per Rule 30(e).

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