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Criminal Practice – Murder — Evidence – Circumstantial – DNA at Crime Scene

Criminal Practice – Murder — Evidence – Circumstantial – DNA at Crime Scene

State v. Carver (Lawyers Weekly No. 12-07-0596, 24 pp.) (Linda Stephens, J.) (Robert N. Hunter Jr., J., dissenting) Appealed from Gaston County Superior Court. (Timothy S. Kincaid, J.) N.C. App. Full-text opinion.

Holding: At the time the victim’s strangled body was discovered beside her car on the bank of the Catawba River, defendant was fishing a short distance away and had been there for several hours. Defendant repeatedly denied ever touching the victim’s vehicle, but DNA found on the victim’s car was, with an extremely high probability, matched to defendant. Under State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975), the state’s circumstantial evidence was sufficient to survive defendant’s motion to dismiss.

We find no error in defendant’s conviction of first-degree murder.

The existence of physical evidence establishing a defendant’s presence at the crime scene, combined with the defendant’s statement that he was never present at the crime scene and the absence of any evidence that defendant was ever lawfully present at the crime scene, permits the inference that the defendant committed the crime and left the physical evidence during the crime’s commission. Otherwise, had his DNA been left at any other time and under lawful circumstances, he would have so stated when the potentially incriminating presence of his DNA was brought to his attention by law enforcement officers.

Defendant’s denial and the DNA’s contradiction thereof, viewed in the light most favorable to the state, are sufficient to establish that the DNA could only have been left at the time the offense was committed. The establishment of that fact warranted denial of defendant’s motion to dismiss.


(Hunter, J.) Along with the defendant and his cousin, at least five other people were near the area where the victim was found. No DNA sample was taken from the man who discovered the victim.

The state presented no evidence connecting defendant to any of the three ligatures used to suffocate the victim. Moreover, the coroner testifying for the state could not determine the victim’s time of death, making it unreasonable for a juror to infer the victim could have died only during the time the defendant was fishing at the nearby location.

Defendant’s DNA found on the victim’s vehicle was touch DNA, which is DNA gathered from skin cells, the testing for which is relatively new and not as accurate as blood or saliva DNA testing. Moreover, it is noteworthy that the defendant’s DNA (touch or otherwise) was not found anywhere else on the outside or the inside of the vehicle. The defendant’s DNA also was not found anywhere on the victim, nor was it found on any of the three ligatures used to suffocate the victim. Defendant’s cousin’s touch DNA, however, was found on the inside of the car near the passenger’s seat.

I disagree with the majority’s application of Miller to this case. First, Miller requires that fingerprint evidence be “accompanied by substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed” before allowing the inference that the defendant must have been present during the commission of the crime. The only evidence indicating the defendant left the touch DNA on the car at the time of the murder is that he happened to be fishing near the location where the victim was found. There is no other evidence tying the defendant to the crime scene. As such, I cannot hold that substantial evidence of circumstances accompanies the defendant’s touch DNA on the victim’s car to indicate such DNA could only have been left at the time the murder was committed.

According to the majority, defendant conceded “in his brief that the DNA evidence established his presence at the crime scene in this case, stating that the only connection between himself and the victim was ‘his having touched her car.’” I do not read the defendant’s brief to have made such a concession.  Admitting to having touched the victim’s car does not admit presence at the crime scene because cars are mobile objects, often parked in public places and touched, intentionally or not, by countless people throughout a given day. As the defendant’s touch DNA was matched only to the outside of the victim’s vehicle and only in one place, one cannot draw a reasonable inference that the defendant must only have touched the victim’s car at the crime scene and thus was involved in her murder. Such an inference is far too tenuous to be considered as substantial proof of anything.

One of the state’s touch DNA experts testified that there is no way to tell when the defendant’s touch DNA sample was left on the vehicle.

Another of the state’s touch DNA experts described a phenomenon known as secondary skin cell transfers, where if person A touches person B, and person B touches a pen, person A’s DNA can be found on the pen. Touch DNA is not as probative as the fingerprint evidence present in Miller.

I cannot find even one N.C. case that has reviewed the sufficiency of touch DNA evidence to establish the identity of an accused nor any case in this state that even discusses the accuracy of touch DNA. With so little guidance on the accuracy of touch DNA combined with the fact that the defendant’s touch DNA was found on the outside of the victim’s mobile car and could have been left at any time, I cannot apply the rule in Miller here because I cannot equate fingerprint and touch DNA analysis.

The only remaining evidence is that, during questioning, defendant consistently denied knowing the victim. However, when the officer interrogating him instructed him to stand and describe how tall the victim was, defendant stood and indicated how tall she was compared to his own height. He said he did not know her but maybe saw her on television. Although this raises suspicion of defendant’s guilt, it does not place him at the scene nor connect him to the brutal strangulation of the victim.

The state’s evidence only raises a suspicion as to the identity of defendant as the perpetrator. I would reverse.


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