An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .
NO. COA14-76
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Johnston County No. 03 CRS 54060 LACY DOUGLAS HOCUTT
Appeal by defendant from order entered 9 May 2013 by Judge
William R. Pittman in Johnston County Superior Court. Heard in
the Court of Appeals 30 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.
Kimberly P. Hoppin for defendant-appellant.
BRYANT, Judge.
Where defendant fails to show that DNA testing would be
material to his defense, we affirm the trial court’s denial of
defendant’s post-conviction motion for DNA testing.
On 3 September 2004, a jury found defendant guilty of
first-degree murder under the theories of lying in wait and -2- acting with premeditation and deliberation, and the trial court
sentenced defendant to life imprisonment without the possibility
of parole. Defendant appealed, and this Court found no error.
State v. Hocutt, 177 N.C. App. 341, 628 S.E.2d 832, appeal
dismissed, 361 N.C. 174, 641 S.E.2d 4 (2006).
Acting pro se, on 29 March 2010, defendant filed with the
trial court motions for post-conviction DNA testing pursuant to
N.C. Gen. Stat. § 15A-269 and to locate and preserve evidence.
The trial court appointed counsel to represent defendant on the
motions, and on 29 January 2013, counsel filed an amended motion
for post-conviction DNA testing. In his amended motion,
defendant sought DNA testing of a shotgun, shotgun shell, beer
can, and sunglasses. Defendant contended a lack of the presence
of his DNA on these four items would constitute “strong
evidence” negating the State’s theory of lying in wait and
weakening the State’s theory of premeditation and deliberation.
Defendant further asserted that DNA analysis of the items may
identify another individual who handled them.
By order entered 9 May 2013, the trial court denied
defendant’s motion for post-conviction DNA testing. The court
found defendant had made no factual showing that the evidence
was material to his defense, or that new DNA tests on items -3- previously tested would provide results that are significantly
more accurate or probative, or would have a reasonable
probability of contradicting prior test results. Further, the
court concluded that even if the requested DNA testing was
conducted, there was not a reasonable probability that the
verdict would have been more favorable to defendant. Defendant
appeals.
________________________________
In his sole argument on appeal, defendant contends the
trial court erred in concluding the evidence was not material to
his defense and in denying the motion for post-conviction DNA
testing. We disagree.
This Court reviews the denial of a motion for post-
conviction DNA testing to determine if the trial court’s
findings of fact are supported by competent evidence. State v.
Gardner, ___ N.C. App. ___, ___, 742 S.E.2d 352, 354 (citation
omitted), disc. review denied, ___ N.C. ___, 749 S.E.2d 860
(2013). If so, they are binding on appeal. Id. The trial
court’s conclusions of law are reviewed de novo. Id.
A defendant may seek post-conviction DNA testing of
evidence if it is material to the defendant’s defense, related
to the investigation or prosecution, and either was not -4- previously tested for DNA or was tested but the new DNA test
would provide more accurate and probative results or has a
reasonable probability of contradicting prior test results.
N.C. Gen. Stat. § 15A-269(a) (2013). “Favorable evidence is
material if there is a reasonable probability that its
disclosure to the defense would result in a different outcome in
the jury’s deliberation.” State v. Hewson, ___ N.C. App. ___,
___, 725 S.E.2d 53, 56 (2012) (citations and quotation omitted).
A trial court shall grant a defendant’s post-conviction motion
for DNA testing if the defendant satisfies the above stated
conditions precedent, the results of the DNA testing would
produce “a reasonable probability that the verdict would have
been more favorable to the defendant,” and the defendant has
signed a sworn affidavit of innocence. N.C. Gen. Stat. § 15A-
269(b) (2013).
Defendant argued in his motion for post-conviction DNA
testing that DNA tests would show either a lack of his DNA or
the presence of the DNA of someone else on the four items he
sought to have tested. Defendant asserted that the results
would be “strong evidence” that would negate the State’s theory
of lying in wait and weaken the theory of premeditation and
deliberation. However, even assuming that defendant’s beliefs -5- regarding the presence of DNA on the items are correct, such
evidence does not suggest a reasonable probability that the
verdict would have been more favorable to defendant.
Defendant did not testify at trial. However, his counsel
admitted that defendant shot and killed the victim with a
shotgun. Defendant’s counsel argued that even though defendant
shot and killed the victim, he was only guilty of a lesser
offense and not guilty of first-degree murder.
At trial, the State’s evidence tended to show that
defendant and the victim had a long history of animosity towards
each other, and had been in an altercation with each other
earlier on the day of the shooting. Hocutt, 177 N.C. App. at
344, 628 S.E.2d at 836. After the altercation, while
defendant’s girlfriend was driving defendant to a cookout,
defendant twice told her that he ought to shoot defendant. Id.
Defendant then demanded that his girlfriend stop on Branch
Chapel Church Road and let him out of the car. Id. Defendant
retrieved a shotgun from the trunk of the car and demanded a
beer from his girlfriend. Id. After giving defendant a can of
Busch beer, defendant’s girlfriend drove off, leaving him on the
side of the road with the shotgun in his hand. Id. Several
minutes later, a resident of Branch Chapel Church Road saw the -6- victim drive by on a moped and then heard two gunshots. Id.
The victim was found nearby on the side of the road, suffering
from severe injuries. Id. He was transported to the hospital
where he died several days later. Id.
[Investigating officers] found a Busch beer can, a pair of sunglasses, and an empty 12-gauge shotgun shell casing in the woods near where [the victim] was found. They also saw muddy footprints made by bare feet. Forensic testing revealed defendant’s fingerprint on the sunglasses and his DNA on the beer can. About two weeks later, a logger found a shotgun in the wooded area near the crime scene. . . .
[Later that evening, officers] saw the defendant walking down the road barefooted. He had scratches all over his body, was very dirty, and was staggering.
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .
NO. COA14-76
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Johnston County No. 03 CRS 54060 LACY DOUGLAS HOCUTT
Appeal by defendant from order entered 9 May 2013 by Judge
William R. Pittman in Johnston County Superior Court. Heard in
the Court of Appeals 30 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.
Kimberly P. Hoppin for defendant-appellant.
BRYANT, Judge.
Where defendant fails to show that DNA testing would be
material to his defense, we affirm the trial court’s denial of
defendant’s post-conviction motion for DNA testing.
On 3 September 2004, a jury found defendant guilty of
first-degree murder under the theories of lying in wait and -2- acting with premeditation and deliberation, and the trial court
sentenced defendant to life imprisonment without the possibility
of parole. Defendant appealed, and this Court found no error.
State v. Hocutt, 177 N.C. App. 341, 628 S.E.2d 832, appeal
dismissed, 361 N.C. 174, 641 S.E.2d 4 (2006).
Acting pro se, on 29 March 2010, defendant filed with the
trial court motions for post-conviction DNA testing pursuant to
N.C. Gen. Stat. § 15A-269 and to locate and preserve evidence.
The trial court appointed counsel to represent defendant on the
motions, and on 29 January 2013, counsel filed an amended motion
for post-conviction DNA testing. In his amended motion,
defendant sought DNA testing of a shotgun, shotgun shell, beer
can, and sunglasses. Defendant contended a lack of the presence
of his DNA on these four items would constitute “strong
evidence” negating the State’s theory of lying in wait and
weakening the State’s theory of premeditation and deliberation.
Defendant further asserted that DNA analysis of the items may
identify another individual who handled them.
By order entered 9 May 2013, the trial court denied
defendant’s motion for post-conviction DNA testing. The court
found defendant had made no factual showing that the evidence
was material to his defense, or that new DNA tests on items -3- previously tested would provide results that are significantly
more accurate or probative, or would have a reasonable
probability of contradicting prior test results. Further, the
court concluded that even if the requested DNA testing was
conducted, there was not a reasonable probability that the
verdict would have been more favorable to defendant. Defendant
appeals.
________________________________
In his sole argument on appeal, defendant contends the
trial court erred in concluding the evidence was not material to
his defense and in denying the motion for post-conviction DNA
testing. We disagree.
This Court reviews the denial of a motion for post-
conviction DNA testing to determine if the trial court’s
findings of fact are supported by competent evidence. State v.
Gardner, ___ N.C. App. ___, ___, 742 S.E.2d 352, 354 (citation
omitted), disc. review denied, ___ N.C. ___, 749 S.E.2d 860
(2013). If so, they are binding on appeal. Id. The trial
court’s conclusions of law are reviewed de novo. Id.
A defendant may seek post-conviction DNA testing of
evidence if it is material to the defendant’s defense, related
to the investigation or prosecution, and either was not -4- previously tested for DNA or was tested but the new DNA test
would provide more accurate and probative results or has a
reasonable probability of contradicting prior test results.
N.C. Gen. Stat. § 15A-269(a) (2013). “Favorable evidence is
material if there is a reasonable probability that its
disclosure to the defense would result in a different outcome in
the jury’s deliberation.” State v. Hewson, ___ N.C. App. ___,
___, 725 S.E.2d 53, 56 (2012) (citations and quotation omitted).
A trial court shall grant a defendant’s post-conviction motion
for DNA testing if the defendant satisfies the above stated
conditions precedent, the results of the DNA testing would
produce “a reasonable probability that the verdict would have
been more favorable to the defendant,” and the defendant has
signed a sworn affidavit of innocence. N.C. Gen. Stat. § 15A-
269(b) (2013).
Defendant argued in his motion for post-conviction DNA
testing that DNA tests would show either a lack of his DNA or
the presence of the DNA of someone else on the four items he
sought to have tested. Defendant asserted that the results
would be “strong evidence” that would negate the State’s theory
of lying in wait and weaken the theory of premeditation and
deliberation. However, even assuming that defendant’s beliefs -5- regarding the presence of DNA on the items are correct, such
evidence does not suggest a reasonable probability that the
verdict would have been more favorable to defendant.
Defendant did not testify at trial. However, his counsel
admitted that defendant shot and killed the victim with a
shotgun. Defendant’s counsel argued that even though defendant
shot and killed the victim, he was only guilty of a lesser
offense and not guilty of first-degree murder.
At trial, the State’s evidence tended to show that
defendant and the victim had a long history of animosity towards
each other, and had been in an altercation with each other
earlier on the day of the shooting. Hocutt, 177 N.C. App. at
344, 628 S.E.2d at 836. After the altercation, while
defendant’s girlfriend was driving defendant to a cookout,
defendant twice told her that he ought to shoot defendant. Id.
Defendant then demanded that his girlfriend stop on Branch
Chapel Church Road and let him out of the car. Id. Defendant
retrieved a shotgun from the trunk of the car and demanded a
beer from his girlfriend. Id. After giving defendant a can of
Busch beer, defendant’s girlfriend drove off, leaving him on the
side of the road with the shotgun in his hand. Id. Several
minutes later, a resident of Branch Chapel Church Road saw the -6- victim drive by on a moped and then heard two gunshots. Id.
The victim was found nearby on the side of the road, suffering
from severe injuries. Id. He was transported to the hospital
where he died several days later. Id.
[Investigating officers] found a Busch beer can, a pair of sunglasses, and an empty 12-gauge shotgun shell casing in the woods near where [the victim] was found. They also saw muddy footprints made by bare feet. Forensic testing revealed defendant’s fingerprint on the sunglasses and his DNA on the beer can. About two weeks later, a logger found a shotgun in the wooded area near the crime scene. . . .
[Later that evening, officers] saw the defendant walking down the road barefooted. He had scratches all over his body, was very dirty, and was staggering. The officers recognized defendant and observed that he was very intoxicated. They placed him in handcuffs and took him to jail for “detox purposes,” “to sober up.” The next morning defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury, and attempted murder. . . . While at the Johnston County Detention Center, defendant made incriminating statements over the phone to [his girlfriend] and to his brother which were recorded, pursuant to jail policy. . . . Defendant’s recorded statements that he shot [the victim] were introduced by the State at trial.
Id. at 345, 628 S.E.2d at 836—37.
Based on this evidence, there is no reasonable probability
that the discovery of someone else’s, or the lack of -7- defendant’s, DNA on the shotgun, shotgun shell, beer can, or
sunglasses would result in a different outcome in a jury’s
deliberation. Defendant’s identity as the person who shot and
killed the victim was not at issue in this case. The lack of
defendant’s DNA or presence of another person’s DNA on the items
would not contradict defendant’s admission that he shot and
killed the victim, nor would it have any bearing on the State’s
theories that defendant killed the victim after lying in wait or
with premeditation and deliberation. Accordingly, the trial
court did not err in concluding that defendant’s requested DNA
testing was not material to his defense, and the court’s order
denying defendant’s motion for post-conviction DNA testing is
affirmed.
Judges STROUD and HUNTER, Robert N., Jr., concur.
Report per Rule 30(e).