State v. Byers, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020)

Considering an issue of first impression, the court held that the pro se indigent defendant made an insufficient showing that post-conviction DNA testing “may be material to [his] claim of wrongful conviction” and consequently the trial court did not err by denying his motion for DNA testing under G.S. 15A-269 before appointing him counsel.  The court explained that the showing a defendant must make to be entitled to appointment of counsel under G.S. 15A-269(c) is a lesser burden than that required to obtain DNA testing under G.S. 15A-269(a) because subsection (a) requires a showing that the testing “is material” to the defendant’s defense while subsection (c) requires a showing that testing “may be material” to the defense. The term “material,” the meaning of which the court discussed extensively in its opinion, maintains the same definition under both statutory provisions, but the showing differs due to the varying use of the modifiers “is” and “may be.”  Here, in light of the overwhelming evidence at trial of the defendant’s guilt, the dearth of evidence at trial implicating a second perpetrator, and the unlikelihood that DNA testing would establish the involvement of a third party, the defendant failed to satisfy his burden of showing that DNA testing may be material to his claim of wrongful conviction.