State v. Sayre, 371 N.C. 468 (Sept. 21, 2018)

On appeal from the unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 699 (2017), the court affirmed per curiam. In the opinion below, the Court of Appeals affirmed the trial court’s order denying the defendant’s pro se motion to locate and preserve evidence and motion for post-conviction DNA testing. The defendant pleaded guilty to multiple counts of indecent liberties, 2 counts of second-degree sexual offense and 2 counts of felony child abuse. He did not appeal. Nearly 2 years later he filed a pro se motion to locate and preserve evidence and motion for post-conviction DNA testing. The motion listed 12 pieces of physical evidence that the defendant alleged needed to be tested and preserved because they would prove that he was not the perpetrator. The trial court denied the defendant’s motion concluding that he had not made a showing that DNA testing may be material to his claim of wrongful conviction. As a result, the trial court declined to either appoint counsel or conduct an evidentiary hearing on the motion. The defendant appealed. The Court of Appeals concluded that the defendant’s burden of showing materiality under the post-conviction DNA statute requires more than a conclusory statement that the ability to conduct the testing is material to the defense. Rather, the defendant must provide specific reasons why the requested test would be significantly more accurate or probative of the identity of the perpetrator or accomplice or that there is a reasonable probability of contradicting previous test results. Here, the defendant’s bare assertion that the DNA testing would prove he is not the perpetrator is not sufficiently specific to establish that the requested DNA testing would be material to his defense. Accordingly, the trial court did not err by summarily denying his request for post-conviction DNA testing and court-appointed counsel to prosecute the motion.