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‘Touch’ DNA up for scrutiny

Supreme Court will decide whether a murder conviction based entirely on new DNA technique can stand

Mark Bradley Carver, the man convicted of the 2008 murder of UNC-Charlotte student Irina Yarmolenko, will remain in prison after the North Carolina Court of Appeals rejected his argument that the trial court judge should have dismissed the charges because they were entirely dependent on the presence of Carver’s “touch” DNA.

But the 2-1 split among the judges means that the North Carolina Supreme Court will be required to hear the anticipated appeal brought by Carver’s attorneys.

The court’s split hinged on a question of whether touch DNA, standing alone, was enough to place the defendant at the crime scene. Touch DNA is a relatively new technique different from DNA extracted from blood or other bodily fluids. As the name implies, it is found in skin cells, often left in very low numbers, after an object has been touched or casually handled.

Yarmolenko’s body was discovered beside her car in a remote area along the Catawba River in Gaston County. She had been strangled with a bungee cord, a ribbon from a bag in the back seat of her car, and a drawstring from her sweatshirt. Police found Carver and his cousin, Neal Cassada, fishing nearby along the river. Police found Carver’s and Cassada’s touch DNA on Yarmolenko’s car, and found Cassada’s touch DNA inside the car, but did not find their DNA on either Yarmolenko’s body or any of the items used to strangle her.

Despite the DNA evidence, Carver and Cassada claimed never to have seen Yarmolenko or her car, but Carver accurately described Yarmolenko’s height to police—although his attorneys claimed he learned this from watching news reports about the death. Both men were charged with first-degree murder.

Cassada died of a heart attack the day before his trial was scheduled to begin. Before Carver’s trial, his attorneys asked the judge, Timothy Kincaid, to dismiss the case based on an absence of evidence that Carver committed the murder.

The motion was denied, and prosecutor Bill Stetzer went on to argue that Yarmolenko’s wounds strongly suggested that one person held her down while the other strangled her, and that Carver and Cassada had unsuccessfully tried to push the car into the river. When that didn’t work, Stetzer argued, they put Yarmolenko’s body in the water, likely washing away any DNA evidence, before pulling her back out because the body didn’t sink.

The jury deliberated for only a few hours before returning a conviction for premeditated murder, and Carver was sentenced to life in prison. His attorneys appealed Kincaid’s decision not to grant the motion to dismiss.

No motive, no problem

Judge Linda Stephens, writing for the majority, said that the existence of physical evidence placing Carver at the crime scene, combined with his statement that he was never there and the absence of any evidence that he was ever there for a lawful reason, permitted the inference that Carver committed the crime and left the physical evidence during its commission.

“Carver’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,” Stephens wrote. “The establishment of that fact warrants denial of Carver’s motion to dismiss.”

Carver’s attorneys also argued that prosecutors never established any motive for the killing and that all the state’s evidence was circumstantial.  Stephens rejected both arguments, citing state precedent holding that motive was not an essential element for proving murder and that its absence was not a defense, and that “most murder cases are proved through circumstantial evidence.”

The majority’s decision did not address the credibility of touch DNA testing. But Judge Robert N. Hunter’s dissent argued that the majority placed too much reliance on touch DNA and that the trial court should have granted Carver’s motion to dismiss.

“The majority fails to mention that this DNA was not semen, blood, or saliva DNA; it 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,” Hunter wrote.

He also disputed the majority’s contention that Carver’s attorneys conceded that the evidence placed Carver at the crime scene. Hunter interpreted it only as an admission that Carver had touched the car at some point. The coroner testifying for the state could not determine the time of death.

“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,” Hunter wrote.

One of the state’s DNA experts testified there is no way to tell when the defendant’s touch DNA sample was left on the vehicle. Another state expert described a phenomenon known as secondary skin cell transfers, whereby if person A touches person B, and person B touches a pen, person A’s DNA can be found on the pen.

Gordon Widenhouse Jr. of Rudolf Widenhouse & Fialko represented Carver on appeal. David Phillips of the Phillips Law Firm in Gastonia represented Carver at trial.

‘Evidence has to do more’

Hunter’s dissent entitles Carver to have his case reviewed by the North Carolina Supreme Court. Widenhouse said Carver would appeal, and that the dissent “will present in a fairly forward manner for the state Supreme Court what it means when we say that evidence has to do more than raise a speculation or conjecture of a defendant’s guilt.”

“We know that circumstantial evidence can be sufficient, but the courts have always said that it has to do more than just raise a suspicion or conjecture, which says to me that the evidence can point to the defendant but still be insufficient as a matter of law,” Widenhouse said.

Widenhouse said the fact that police found Carver and Cassada still fishing near where the site of the murder, and even went back the next day to try to recover some gear they had left, suggested an absence of guilt.

“If I understand the state’s theory of the case at trial correctly, the theory is that the girl died within about an hour of when people began to arrive at the scene. Under that theory of the case, if [Carver] was involved, he just went back to the other side of the bank and resumed fishing, and that would be a very unusual set of circumstances,” he said.

When asked how a jury nevertheless handed back a guilty verdict on the evidence, Widenhouse said he had “no idea, other than that they just knew that a crime had been committed and the defendant was the one sitting in the courtroom.”

The 24-page opinion is State v. Carver (Lawyers Weekly No. 12-07-0596). The full text of the opinion is available online at nclawyersweekly.com.

 

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