State v. Tilghman

261 N.C.App. 716

821 S.E.2d 253

STATE of North Carolina

v.Anthony Marcellious TILGHMAN, Defendant.

No. COA17-1308

Court of Appeals of North Carolina.

Filed: October 2, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Rana M. Badwan, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt B. Orsbon, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Anthony Marcellious Tilghman ("Defendant") appeals from an order denying his pro se motion for postconviction DNA testing and to locate and preserve evidence. Defendant contends the trial court erred by: (1) denying his motion for DNA testing prior to ordering and receiving an inventory of all physical and biological evidence; and (2) denying his motion because he sufficiently established his entitlement to appointment of counsel. We dismiss in part and affirm in part.

I. Factual and Procedural History

On 8 September 2014, in accordance with a plea agreement, Defendant pled guilty to five counts of robbery with a dangerous weapon and four counts of second degree kidnapping. The trial court consolidated the charges and sentenced Defendant to two consecutive terms of 72 to 99 months imprisonment. Defendant did not appeal from his guilty pleas.

Three years later, on 13 March 2017, Defendant filed a motion for appropriate relief ("MAR"). On 14 March 2017, Defendant filed a pro se "Motion to Locate and Preserve Evidence" and "Motion for Post-Conviction DNA Testing" in Cabarrus County Superior Court. Defendant listed eighteen pieces of physical and biological evidence he desired to be tested and requested the court appoint him legal counsel to assist him in prosecuting the motions.

On 2 June 2017, the trial court entered an order denying both of Defendant's motions.¹ The court found "Judge Kevin M. Bridges entered an order disposing of the evidence." The court also found "Defendant's Motion is frivolous and no hearing is necessary. The Defendant's Motion fails to set forth any credible basis in law or fact to support his requests." Defendant timely filed written notice of appeal on 14 June 2017. After settlement of the record and the filing of briefs, Defendant filed a petition for writ of certiorari on 19 March 2018.

II. Jurisdiction

N.C. Gen Stat. § 15A-270.1 allows a defendant to "appeal an order denying the defendant's motion for DNA testing...." N.C. Gen. Stat. § 15A-270.1 (2017). See also State v. Doisey , 240 N.C. App. 441, 445-46, 770 S.E.2d 177, 180 (2015). Our case law allows a defendant to appeal a denial of the appointment of counsel supplemental to this DNA motion. See State v. Gardner , 227 N.C. App. 364, 366, 742 S.E.2d 352, 354 (2013). Thus, this Court has jurisdiction over Defendant's arguments regarding his written request for DNA testing and appointment of counsel. As for Defendant's appellate arguments regarding alleged failures to inventory evidence, we, in our discretion, grant Defendant's petition for writ of certiorari should his notice of appeal be imperfect. N.C. R. App. P. 21 (2017).

III. Standard of Review

Our standard of review of a trial court's denial of a motion for postconviction DNA testing is "analogous to the standard of review for a motion for appropriate relief." Gardner , 227 N.C. App. at 365, 742 S.E.2d at 354 (citation omitted). Findings of fact are binding on appeal if they are supported by competent evidence, and we review conclusions of law de novo . State v. Turner , 239 N.C. App. 450, 452, 768 S.E.2d 356, 358 (2015) (citation omitted). We also review whether the trial court complied with a statutory mandate, which is a question of law, de novo . State v. Mackey , 209 N.C. App. 116, 120, 708 S.E.2d 719, 721 (2011) (citation omitted).

IV. Analysis

Defendant's appellate argument is two-fold: (1) the trial court erred by denying his motion for DNA testing because he was entitled to appointment of counsel; and (2) the trial court erred by denying his motion to DNA testing prior to obtaining an inventory of evidence.

A. Entitlement to Appointment of Counsel

Defendant argues the court erred in denying his motion because N.C. Gen. Stat. § 15A-269 entitles him to appointment of counsel.

N.C. Gen. Stat. § 15A-269 states:

the court shall appoint counsel for the person who brings a motion under this section if that person is indigent. If the petitioner has filed pro se, the court shall appoint counsel for the petitioner in accordance with the rules adopted by the Office of Indigent Defense Services upon a showing that the DNA testing may be material to the petitioner's claim of wrongful conviction.

N.C. Gen. Stat. § 15A-269(c) (2017) (emphasis added).

Our case law places the burden of proof to show materiality on the moving party. To meet this burden, a moving defendant must allege "more than the conclusory statement that the ability to conduct the requested DNA testing is material to the defendant's defense." Gardner , 227 N.C. App. at 369, 742 S.E.2d at 356 (quotation marks and alterations omitted) (citing State v. Foster, 222 N.C. App. 199, 205, 729 S.E.2d 116, 120 (2012) ). Merely asserting conclusory statements that DNA testing could be material to the defense and, if tested, would exonerate defendant are insufficient meet this burden. See Turner , 239 N.C. App. at 455-56, 768 S.E.2d at 359 (holding defendant's assertion "[t]he ability to conduct the requested DNA testing is material to [his] defense" was conclusory and, therefore, insufficient to establish materiality under the statute); Gardner , 227 N.C. App. at 369-70, 742 S.E.2d at 356 (holding a defendant who pled guilty to fifteen counts of statutory rape failed to meet his burden of materiality when he used a standardized form which provided no space to include an explanation of materiality for DNA testing).

In this case, Defendant entered a guilty plea and did not present any defense to the trial court. Recently, our Court acknowledged a guilty plea increases a defendant's burden to show materiality. See State v. Randall , ––– N.C. App. ––––, ––––, 817 S.E.2d 219, 221 (2018) (acknowledging "the inherent difficulty in establishing the materiality required by N.C. Gen. Stat. § 15A-269 for a defendant who pleaded guilty[.]"). However, the Court stated it did "not believe that the statute was intended to completely forestall the filing of such a motion where a defendant did, in fact, enter a plea of guilty." Id. at ––––, 817 S.E.2d at 221. "The trial court is obligated to consider the facts surrounding a defendant's decision to plead guilty in addition to other evidence, in the context of the entire record of the case, in order to determine whether the evidence is ‘material.’ " Id. at ––––, 817 S.E.2d at 221 (citation omitted).

Defendant's statements of materiality are indistinguishable from Gardner and Turner . Defendant asserted in his motion for DNA testing the "evidences need to be tested and preserved for the purpose of DNA testing where the results would prove that the Defendant was NOT the perpetrator of the crimes allegedly committed[.]" Defendant further argued he was intoxicated and under the influence of drugs, he never participated in the crime, and he was coerced to take the plea deal and "the DNA results would prove it." Additionally, Defendant maintains the items listed "[w]ere not subject to DNA testing, and today's technology would allow the testing of DNA provide results that are significantly more accurate and probati[ve] of the identity of the perpetrator in which, will exonerate Defend[a]nt."

Defendant asserts these statements taken together meet his evidentiary burden and are not merely conclusory statements. We conclude otherwise and hold the aggregation of Defendant's conclusory statements communicates the same conclusory effect. See State v. Collins , 234 N.C. App. 398, 411-12, 761 S.E.2d 914, 922-23 (2014) (holding defendant's statements, in both his pro se motion and amended affidavit, concerning "DNA [e]xperts," a "new technique known as ‘Touch DNA[,]’ " and the ability to subject items to "newer and more accurate testing which would provide results that are significantly more accurate and probative" were each conclusory on their own merit, and, thus, defendant failed to meet the materiality burden under the statute).

Defendant's assertions are incomplete. He provided no information suggesting how new testing is different and more accurate. "Without more specific detail from Defendant, or some other evidence, the trial court [cannot] adequately determine whether additional testing would be significantly more accurate and probative[.]" Id. at 412, 761 S.E.2d at 923. Accordingly, and in light of Defendant's guilty plea, we hold Defendant failed to meet his burden of showing materiality under N.C. Gen. Stat. § 15A-269(c).² We affirm this portion of the trial court's order denying Defendant's motion.

B. Denial of Defendant's Motion Prior to an Inventory of Evidence

Defendant argues the trial court erred in "summarily denying his motion" for a complete inventory of all physical and biological evidence relating to his case. Defendant asks this Court to remand the matter to the trial court who would, in turn, reconsider Defendant's motion "in light of that inventory[.]" Defendant requested an inventory of evidence pursuant to N.C. Gen. Stat. § 15A-268 (2017) and N.C. Gen. Stat. § 15A-269, and we address each statute in turn.

1. Inventory of Evidence Pursuant to N.C. Gen. Stat. § 15A-268

N.C. Gen. Stat. § 15A-268 states:

(a1) Notwithstanding any other provision of law and subject to subsection (b) of this section, a custodial agency shall preserve any physical evidence, regardless of the date of collection, that is reasonably likely to contain any biological evidence collected in the course of a criminal investigation or prosecution. ...

(a7) Upon written request by the defendant , the custodial agency shall prepare an inventory of biological evidence relevant to the defendant's case that is in the custodial

...