State v. Killette

• Court: Court of Appeals of North Carolina
• Decided: March 4, 2014
• Docket: 13-836
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure.

NO. COA13-836 NORTH CAROLINA COURT OF APPEALS

Filed: 4 March 2014

STATE OF NORTH CAROLINA

v. Johnston County No. 09 CRS 55879, 56059 VAN BUREN KILLETTE, JR.

Appeal by defendant from order entered 17 January 2013 by

Judge Thomas H. Lock in Johnston County Superior Court. Heard

in the Court of Appeals 11 December 2013.

Roy Cooper, Attorney General, by Laura E. Parker, Assistant Attorney General, for the State.

Staples Hughes, Appellate Defender, by Constance E. Widenhouse, Assistant Appellate Defender, for defendant- appellant.

STEELMAN, Judge.

Where the evidence in question had already been destroyed

and the defendant failed to show that the evidence was

biological evidence and material to his defense, the trial court

did not err in denying defendant’s motion to locate and preserve

evidence for DNA testing. -2-

I. Factual and Procedural Background

On 1 June 2010, Van Buren Killette, Jr., (defendant) pled

guilty to one count of second-degree burglary, two counts of

second-degree kidnapping, and one count of conspiracy to commit

robbery with a dangerous weapon, pursuant to a plea bargain as

to sentence. Defendant was sentenced to 27-42 months

imprisonment for burglary and kidnapping, and 27-42 months

imprisonment for conspiracy, with the sentences to run

consecutively.

On 14 June 2010, the State filed a motion to destroy

evidence in defendant’s cases. This motion was granted on 7

July 2010. The evidence destroyed included duct tape from the

crime scene, a pair of defendant’s shoes, a brown paper bag

containing miscellaneous items of clothing, a brown paper bag

containing two multi-colored hoodies, and a brown paper bag

containing pieces of duct tape with shoe impressions.

On 10 December 2010, defendant, pro se, filed a motion to

locate and preserve evidence, a motion for DNA testing, and an

affidavit of actual innocence. On 10 January 2013, the trial

court heard defendant’s motions. On 17 January 2013, the trial

court denied defendant’s motions. -3- Defendant appeals.

II. Standard of Review

“In reviewing a trial judge's findings of fact, we are

‘strictly limited to determining whether the trial judge's

underlying findings of fact are supported by competent evidence,

in which event they are conclusively binding on appeal, and

whether those factual findings in turn support the judge's

ultimate conclusions of law.’” State v. Allen, ___ N.C. App.

___, ___, 731 S.E.2d 510, 519, disc. review denied, 366 N.C.

415, 737 S.E.2d 377 (2012), cert. denied, ___ U.S. ___, 133

S.Ct. 2009, 185 L. Ed. 2d 876 (2013) (quoting State v. Williams,

362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008)).

“Issues of statutory construction are questions of law,

reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509,

511, 689 S.E.2d 590, 592 (2010).

III. Materiality of Destroyed Evidence

On appeal, defendant contends that the trial court erred by

failing to conduct a hearing regarding the destruction of

physical evidence, or to consider an appropriate remedy, and

that the trial court erred by denying defendant’s motion to

preserve evidence for DNA testing. We disagree. -4- Pursuant to N.C. Gen. Stat. § 15A-268, the State is

required to preserve “biological evidence,” which

includes the contents of a sexual assault examination kit or any item that contains blood, semen, hair, saliva, skin tissue, fingerprints, or other identifiable human biological material that may reasonably be used to incriminate or exculpate any person in the criminal investigation, whether that material is catalogued separately on a slide or swab, in a test tube, or some other similar method, or is present on clothing, ligatures, bedding, other household materials, drinking cups, cigarettes, or any other item of evidence.

N.C. Gen. Stat. § 15A-268(a) (2013). In response to notice

that such evidence is to be destroyed, a defendant may request a

hearing. N.C. Gen. Stat. § 15A-268(d).

At the 10 January 2013 hearing, the State stipulated that

the evidence in question – duct tape without fingerprints, a

pair of shoes and other items of clothing collected from near

the crime scene, and a shoe impression – had been destroyed, and

asserted that it was not biological evidence pursuant to N.C.

Gen. Stat. § 15A-268. At the close of the hearing, defendant

moved that the court conduct a hearing on the destruction of

evidence. The court declined to do so, holding that the State

had stipulated that evidence had been destroyed, and that the

stipulation would be part of the court’s findings. The trial -5- court further found that the evidence in question was not

biological evidence.

Defendant failed to present evidence at the 10 January 2013

hearing that would support a finding that the destroyed evidence

was biological evidence that would merit a hearing on its

destruction. The statutory mandates of N.C. Gen. Stat. § 15A-

268, including a hearing at defendant’s request, apply only to

biological evidence. Even assuming arguendo that the State did

not follow the procedures outlined in N.C. Gen. Stat. § 15A-268,

those procedures apply only to biological evidence. We hold

that the trial court did not err in denying defendant’s request

for a hearing.

Defendant further contends that the trial court erred in

denying his motion to preserve evidence for DNA testing. N.C.

Gen. Stat. § 15A-269 provides that a defendant may file a motion

for post-conviction DNA testing of biological evidence provided

that the evidence in question:

(1) Is material to the defendant's defense.

(2) Is related to the investigation or prosecution that resulted in the judgment.

(3) Meets either of the following conditions:

a. It was not DNA tested previously. -6- b. It was tested previously, but the requested DNA test would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.

N.C. Gen. Stat. § 15A-269(a) (2013). As noted above, the trial

court found that the evidence in question was not biological

evidence, and that the evidence had been destroyed. Nowhere in

defendant’s 10 December 2010 motion to preserve evidence, nor

during the 10 January 2013 hearing, did defendant offer any

support for an argument that the evidence in question was

material. Defendant offers only the vague allegation that the

evidence was material, without arguing why it was material. We

have previously held that a mere conclusory statement that

evidence is material, without more, is not sufficient to support

a motion to conduct DNA testing. State v. Gardner, ___ N.C.

App. ___, ___, 742 S.E.2d 352, 356, disc. review denied, ___

N.C. ___, 749 S.E.2d 860 (2013) (citing State v. Foster, ___

N.C. App. ___, ___, 729 S.E.2d 116, 120 (2012)). In the absence

of a showing that the evidence in question was material, we hold

that the trial court did not err in denying defendant’s motion

to preserve evidence for DNA testing.

This argument is without merit. -7- AFFIRMED.

Judges STEPHENS and DAVIS concur.

Report per Rule 30(e).