Criminal Practice – Postconviction DNA Testing – ‘Locate & Preserve’ Evidence – Inventory – Attorneys – Appointment of Counsel

When defendant requested an order “to Locate and Preserve Evidence,” this did not constitute a request for an inventory under G.S. § 15A-268, which would have required custodial agencies to make an inventory of the biological evidence.

Although, under G.S. § 15A-269, a custodial agency’s obligation to inventory evidence is triggered by receipt of a motion for postconviction DNA testing, the statute is silent as to whether a defendant or the trial court bears the burden of serving the motion for inventory on the custodial agency. Even if it were the trial court’s burden to serve the custodial agency with the motion, any error by the court below is harmless because defendant failed to meet his burden of showing materiality.

We dismiss defendant’s argument relating to § 15A-269; otherwise, we affirm the trial court’s denial of defendant’s request for postconviction DNA testing.

In his argument that DNA testing was material to his claim of wrongful conviction, defendant essentially said that he was intoxicated and under the influence of drugs, never participated in the crimes to which he pled guilty, and was coerced to take the plea deal and that “the DNA results would prove it.” Defendant has failed to allege more than the conclusory statement that the ability to conduct the requested DNA testing is material to his defense.

Defendant also maintains that the items he listed “[w]ere not subject to DNA testing, and today’s technology would allow the testing of DNA results that are significantly more accurate the probati[ve] of the identity of the perpetrator in which, will exonerate Defend[a]nt.” However, he provided no information suggesting how new testing is different and more accurate than at the time of his 2014 convictions.

Dismissed in part; affirmed in part.

State v. Tilghman (Lawyers Weekly No. 011-298-18, 11 pp.) (Robert Hunter, J.) Appealed from Cabarrus County Superior Court (Martin McGee, J.) Rana Badwan for the state; Wyatt Orsbon for defendant. N.C. App.