An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted i n accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-660 NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Randolph County No. 98 CRS 6012 WILLARD LEE MARTIN, JR., Defendant.
Appeal by defendant from Order entered on 31 April 2012 by
Judge Vance Bradford Long in Superior Court, Randolph County.
Heard in the Court of Appeals 12 December 2013.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Sherri Horner Lawrence, for the State.
Daniel F. Read, for defendant-appellant.
STROUD, Judge.
Willard Martin, Jr. (“defendant”) appeals from an order
entered 31 April 2012 denying his motions to locate and preserve
evidence for DNA testing and for DNA testing. We affirm.
I. Background -2- On 6 July 1998, defendant was indicted in Randolph County
for the murder of Leo Plumer.1 At trial, the State presented
physical evidence, including Mr. Plumer’s bloody shirt, and
testimony to support its allegations that defendant
intentionally shot and killed Mr. Plumer. A jury found defendant
guilty of first degree murder. The trial court sentenced
defendant to life imprisonment without parole on 20 October
1999.
Since his conviction, defendant has attempted to pursue
multiple forms of post-conviction relief. Defendant appealed to
this Court and we found no error by unpublished opinion on 17
October 2000. State v. Martin, 140 N.C. App. 387, 540 S.E.2d 80
(2000) (unpublished). Our Supreme Court denied defendant’s
petition for writ of certiorari, State v. Martin, 353 N.C. 391,
547 S.E.2d 36 (2001), and his later petition for writ of habeas
corpus, State v. Martin, 560 S.E.2d 548, 548-49 (N.C. 2002)
(unpublished). Defendant also filed a federal petition for writ
of habeas corpus, which the United States District Court for the
Middle District of North Carolina denied. Martin v. Beck, 2002
WL 32397088 (M.D.N.C.) (unpublished). The Fourth Circuit
1 The indictment listed the decedent’s name as Leo Palmer, but the order from which defendant appeals lists his last name as Plumer. For purposes of this opinion, we will follow the spelling in the order and refer to him as Mr. Plumer. -3- dismissed his appeal from that order for failure to make “a
substantial showing of the denial of a constitutional right.”
Martin v. Beck, 53 Fed. Appx. 713 (unpublished) (4th Cir.
2003).
After exhausting both direct appeals and collateral
attacks, defendant filed a motion with the superior court in
Randolph County to locate and preserve certain evidence from his
trial and to test Mr. Plumer’s shirt for DNA. The trial court
ordered the district attorney to investigate the status of the
requested evidence. The district attorney reported that the
evidence requested by defendant, including Mr. Plumer’s shirt,
could not be located and that there was a “Notice of Intent to
Dispose Evidence” form in the court file indicating that it
would be disposed of if not removed within ninety days after
certification of a final decision of the appellate division, but
there was no disposition order or receipt for removal indicating
what happened to the evidence. The trial court denied
defendant’s motions by order entered 31 April 2012. It concluded
that because the evidence could not be located, there was
nothing to preserve and test. Defendant filed written notice of
appeal on 8 March 2012.2
2 The trial court did not file the appellate entries and appoint -4- II. Post-Conviction Motions
Defendant argues that the trial court erred in denying his
post-conviction motions because there may have been exculpatory
DNA evidence on the victim’s shirt showing that Mr. Plumer was
shot in close proximity, which he contends would support his
theory of an accidental shooting.
Defendant moved pro se to test Mr. Plumer’s shirt for DNA
under “N.C. Gen. Stat. §§ 15A-269, 7A-454, 7A-455, 7A-315, and
8C-1, Rules 702 and 706.” He also moved to locate and preserve
evidence from gunshot residue kits and Mr. Plumer’s clothing
under N.C. Gen. Stat. § 15A-268.
Our standard of review of a denial of a motion for postconviction DNA testing is analogous to the standard of review for a motion for appropriate relief. Findings of fact are binding on this Court if they are supported by competent evidence and may not be disturbed absent an abuse of discretion. The lower court’s conclusions of law are reviewed de novo.
the appellate defender until on or about 28 March 2013. As a result, defendant did not serve the proposed record on appeal on the State until over a year after the order was entered. Nevertheless, defendant filed a motion to deem the record timely filed, which this Court granted by order entered 19 June 2013. Therefore, we deny the State’s motion to dismiss the appeal for failure to take timely action, as the timeliness of defendant’s filing the record was the sole basis of the motion, and dismiss defendant’s petition for writ of certiorari as moot. -5- State v. Gardner, ___ N.C. App. ___, ___, 742 S.E.2d 352, 354
(citation and quotation marks omitted), disc. rev. denied, ___
N.C. ___, 749 S.E.2d 860 (2013).
On appeal, defendant only argues that the trial court erred
in denying his motion to test Mr. Plumer’s shirt for DNA under
N.C. Gen. Stat. § 15A-269 (2011) and that the denial of his
motion violated his right to due process. Therefore, we deem all
other arguments regarding his post-conviction preservation and
testing motions abandoned, including any argument that the
evidence was required to be preserved under N.C. Gen. Stat. §
15A-268. N.C.R. App. P. 28(a). Further, defendant does not
challenge any of the trial court’s factual findings. Therefore,
those findings are binding on appeal. State v. Hensley, 201 N.C.
App. 607, 613, 687 S.E.2d 309, 314, disc. rev. denied, 364 N.C.
244, 698 S.E.2d 662 (2010). Additionally, because he failed to
raise the constitutional issues below, he has failed to preserve
them for our review. N.C.R. App. P. 10(a)(1); see State v.
Dewalt, 190 N.C. App. 158, 164, 660 S.E.2d 111, 115 (“Even
alleged errors arising under the Constitution of the United
States are waived if defendant does not raise them in the trial
court.” (citation and quotation marks omitted)), disc. rev.
denied, 362 N.C. 684, 670 S.E.2d 906 (2008). -6- Thus, the only issue left for us to consider is whether the
trial court’s factual findings support its conclusion that
“there is no evidence and no articles gathered in connection
that can be located and therefore nothing to preserve for DNA
testing” and its decision to deny defendant’s motion. We affirm,
but on different grounds that those relied on by the trial
court.
The statutes relied on by defendant, N.C. Gen. Stat. § 15A-
269, the post-conviction DNA testing statute, and N.C. Gen.
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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 i n accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-660 NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Randolph County No. 98 CRS 6012 WILLARD LEE MARTIN, JR., Defendant.
Appeal by defendant from Order entered on 31 April 2012 by
Judge Vance Bradford Long in Superior Court, Randolph County.
Heard in the Court of Appeals 12 December 2013.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Sherri Horner Lawrence, for the State.
Daniel F. Read, for defendant-appellant.
STROUD, Judge.
Willard Martin, Jr. (“defendant”) appeals from an order
entered 31 April 2012 denying his motions to locate and preserve
evidence for DNA testing and for DNA testing. We affirm.
I. Background -2- On 6 July 1998, defendant was indicted in Randolph County
for the murder of Leo Plumer.1 At trial, the State presented
physical evidence, including Mr. Plumer’s bloody shirt, and
testimony to support its allegations that defendant
intentionally shot and killed Mr. Plumer. A jury found defendant
guilty of first degree murder. The trial court sentenced
defendant to life imprisonment without parole on 20 October
1999.
Since his conviction, defendant has attempted to pursue
multiple forms of post-conviction relief. Defendant appealed to
this Court and we found no error by unpublished opinion on 17
October 2000. State v. Martin, 140 N.C. App. 387, 540 S.E.2d 80
(2000) (unpublished). Our Supreme Court denied defendant’s
petition for writ of certiorari, State v. Martin, 353 N.C. 391,
547 S.E.2d 36 (2001), and his later petition for writ of habeas
corpus, State v. Martin, 560 S.E.2d 548, 548-49 (N.C. 2002)
(unpublished). Defendant also filed a federal petition for writ
of habeas corpus, which the United States District Court for the
Middle District of North Carolina denied. Martin v. Beck, 2002
WL 32397088 (M.D.N.C.) (unpublished). The Fourth Circuit
1 The indictment listed the decedent’s name as Leo Palmer, but the order from which defendant appeals lists his last name as Plumer. For purposes of this opinion, we will follow the spelling in the order and refer to him as Mr. Plumer. -3- dismissed his appeal from that order for failure to make “a
substantial showing of the denial of a constitutional right.”
Martin v. Beck, 53 Fed. Appx. 713 (unpublished) (4th Cir.
2003).
After exhausting both direct appeals and collateral
attacks, defendant filed a motion with the superior court in
Randolph County to locate and preserve certain evidence from his
trial and to test Mr. Plumer’s shirt for DNA. The trial court
ordered the district attorney to investigate the status of the
requested evidence. The district attorney reported that the
evidence requested by defendant, including Mr. Plumer’s shirt,
could not be located and that there was a “Notice of Intent to
Dispose Evidence” form in the court file indicating that it
would be disposed of if not removed within ninety days after
certification of a final decision of the appellate division, but
there was no disposition order or receipt for removal indicating
what happened to the evidence. The trial court denied
defendant’s motions by order entered 31 April 2012. It concluded
that because the evidence could not be located, there was
nothing to preserve and test. Defendant filed written notice of
appeal on 8 March 2012.2
2 The trial court did not file the appellate entries and appoint -4- II. Post-Conviction Motions
Defendant argues that the trial court erred in denying his
post-conviction motions because there may have been exculpatory
DNA evidence on the victim’s shirt showing that Mr. Plumer was
shot in close proximity, which he contends would support his
theory of an accidental shooting.
Defendant moved pro se to test Mr. Plumer’s shirt for DNA
under “N.C. Gen. Stat. §§ 15A-269, 7A-454, 7A-455, 7A-315, and
8C-1, Rules 702 and 706.” He also moved to locate and preserve
evidence from gunshot residue kits and Mr. Plumer’s clothing
under N.C. Gen. Stat. § 15A-268.
Our standard of review of a denial of a motion for postconviction DNA testing is analogous to the standard of review for a motion for appropriate relief. Findings of fact are binding on this Court if they are supported by competent evidence and may not be disturbed absent an abuse of discretion. The lower court’s conclusions of law are reviewed de novo.
the appellate defender until on or about 28 March 2013. As a result, defendant did not serve the proposed record on appeal on the State until over a year after the order was entered. Nevertheless, defendant filed a motion to deem the record timely filed, which this Court granted by order entered 19 June 2013. Therefore, we deny the State’s motion to dismiss the appeal for failure to take timely action, as the timeliness of defendant’s filing the record was the sole basis of the motion, and dismiss defendant’s petition for writ of certiorari as moot. -5- State v. Gardner, ___ N.C. App. ___, ___, 742 S.E.2d 352, 354
(citation and quotation marks omitted), disc. rev. denied, ___
N.C. ___, 749 S.E.2d 860 (2013).
On appeal, defendant only argues that the trial court erred
in denying his motion to test Mr. Plumer’s shirt for DNA under
N.C. Gen. Stat. § 15A-269 (2011) and that the denial of his
motion violated his right to due process. Therefore, we deem all
other arguments regarding his post-conviction preservation and
testing motions abandoned, including any argument that the
evidence was required to be preserved under N.C. Gen. Stat. §
15A-268. N.C.R. App. P. 28(a). Further, defendant does not
challenge any of the trial court’s factual findings. Therefore,
those findings are binding on appeal. State v. Hensley, 201 N.C.
App. 607, 613, 687 S.E.2d 309, 314, disc. rev. denied, 364 N.C.
244, 698 S.E.2d 662 (2010). Additionally, because he failed to
raise the constitutional issues below, he has failed to preserve
them for our review. N.C.R. App. P. 10(a)(1); see State v.
Dewalt, 190 N.C. App. 158, 164, 660 S.E.2d 111, 115 (“Even
alleged errors arising under the Constitution of the United
States are waived if defendant does not raise them in the trial
court.” (citation and quotation marks omitted)), disc. rev.
denied, 362 N.C. 684, 670 S.E.2d 906 (2008). -6- Thus, the only issue left for us to consider is whether the
trial court’s factual findings support its conclusion that
“there is no evidence and no articles gathered in connection
that can be located and therefore nothing to preserve for DNA
testing” and its decision to deny defendant’s motion. We affirm,
but on different grounds that those relied on by the trial
court.
The statutes relied on by defendant, N.C. Gen. Stat. § 15A-
269, the post-conviction DNA testing statute, and N.C. Gen.
Stat. § 15A-268, the companion evidence preservation statute,
were enacted by 2001 N.C. Sess. Laws 282, §4 and became
effective 1 October 2001. The statutes apply to “evidence,
records, and samples in the possession of a governmental entity
on or after October 1, 2001.” 2001 N.C. Sess. Laws 282, § 6. The
trial court found that none of the evidence was in the
possession of the relevant governmental entities. The notice of
intent to dispose of the items to be tested was filed on or
about 6 February 2001, after his final direct appeal had been
exhausted. The notice indicated that the items would be
disposed thirty days after the notice had been mailed. There is
no evidence that any governmental agency was in possession of
the items after 1 October 2001. Therefore, defendant cannot show -7- that the statute under which he requested relief applies to him.
Accordingly, we affirm the trial court’s order denying
defendant’s motion.
III. Conclusion
There was no evidence that the items that defendant sought
to test were in the possession of a governmental agency on or
after 1 October 2001. Therefore, the DNA testing statute does
not apply to defendant and we affirm the trial court’s order
denying defendant’s motion for DNA testing under N.C. Gen. Stat.
§ 15A-269.
AFFIRMED.
Judges HUNTER, JR., Robert N. and DILLON concur.
Report per Rule 30(e).