State v. Hewson, 220 N.C. App. 117 (Apr. 17, 2012)

The trial court did not err by denying the defendant’s motion for post-conviction independent DNA testing. The defendant was convicted of first-degree murder (based on premeditation and deliberation and felony-murder predicated upon discharge of a weapon into occupied property), discharge of a weapon into occupied property, and misdemeanor violation of a domestic violence protective order. The defendant argued that the trial court erred by concluding that DNA testing was not material to the defense. Specifically, he asserted that the State’s theory of the case indicated that the victim was inside the home and the defendant was outside when he discharged his handgun. The defendant further argued that blood on his pants was never tested. He asserted that if DNA evidence indicates the blood belonged to the victim, the defendant could argue that he was in close proximity to the victim, that he did not shoot from outside the residence, and that he would have the basis for a heat-of-passion defense to first-degree murder. The court rejected this argument, concluding that the evidence submitted by defendant in support of his motion supported the jury’s verdict and did not support a jury instruction on the heat-of-passion defense. It noted: “Defendant’s contention that he was in close proximity to the victim at some point, even if supported by DNA evidence, does not  minimize the significance of or otherwise refute the substantial evidence that defendant fired a gun into occupied property and that the victim suffered fatal gunshot wounds as a result.”