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Two criminal issues, two unexplained rulings from NC Supreme Court

David Donovan//February 13, 2013

Two criminal issues, two unexplained rulings from NC Supreme Court

David Donovan//February 13, 2013

The North Carolina Supreme Court punted on a chance to examine the reliability of a new scientific advance in the toolbox of crime scene investigators.

A Gaston County jury found Mark Bradley Carver guilty of the 2008 murder of UNC Charlotte student Irina Yarmolenko based largely on the presence of Carver’s “touch DNA” on Yarmolenko’s car. Testing for touch DNA, which is left when skin cells touch an object, is a relatively new practice.

In a 2-1 vote, the Court of Appeals affirmed the trial court’s denial of Carver’s pre-trial motion to dismiss the charges due to lack of evidence. Judge Linda Stephens, writing for the majority, said that the existence of physical evidence placing Carver at the crime scene permitted an inference that he left it there while committing the crime. In dissent, Judge Robert N. Hunter argued that touch DNA was less reliable than other kinds of DNA testing and couldn’t put Carver at the scene at the time the murder occurred, and that the majority placed too much reliance on it. (Lawyers Weekly covered that decision in the June 18 story, “Touch DNA up for scrutiny.”)

The Supreme Court declined to weigh in on the dispute, affirming the Court of Appeals’ decision in a per curiam opinion without comment.

The court also disposed of another criminal case without articulating any reasoning. In State v. Baysden, the Court of Appeals held that the state’s Felony Firearms Act was unconstitutional as applied to a Wake County man whose last felony conviction was for selling marijuana in 1977.

The case came up for automatic review because of a dissent by then-Judge Cheri Beasley. Beasley is now a Supreme Court Justice, and she recused herself from the case. With only six justices hearing the case, the court split, 3-3. The split means that the Court of Appeals’ decision is left standing, but without value as precedent.

Baysden was represented by attorney Dan Hardway, who devotes much of his practice to representing felons seeking restoration of their firearms rights and has many such cases currently pending in the state courts. Hardway spoke to Lawyers Weekly about a related case in the Jan. 7 story “Does a ten-time felon get a gun?”

Follow David Donovan on Twitter @NCLWDonovan

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