State v. Tilghman
State v. Tilghman
Opinion
*717 Anthony Marcellious Tilghman ("Defendant") appeals from an order denying his pro se motion for postconviction DNA testing and to locate and preserve evidence. Defendant contends the trial court erred by: (1) denying his motion for DNA testing prior to ordering and receiving an inventory of all physical and biological evidence; and (2) denying his motion because he sufficiently established his entitlement to appointment of counsel. We dismiss in part and affirm in part.
I. Factual and Procedural History
On 8 September 2014, in accordance with a plea agreement, Defendant pled guilty to five counts of robbery with a dangerous weapon and four counts of second degree kidnapping. The trial court consolidated the charges and sentenced Defendant to two consecutive terms of 72 to 99 months imprisonment. Defendant did not appeal from his guilty pleas.
Three years later, on 13 March 2017, Defendant filed a motion for appropriate relief ("MAR"). On 14 March 2017, Defendant filed a pro se "Motion to Locate and Preserve Evidence" and "Motion for Post-Conviction DNA Testing" in Cabarrus County Superior Court. Defendant listed eighteen pieces of physical and biological evidence he desired to be tested and requested the court appoint him legal counsel to assist him in prosecuting the motions.
On 2 June 2017, the trial court entered an order denying both of Defendant's motions. 1 The court found "Judge Kevin M. Bridges entered *718 an order disposing of the evidence." The court also found "Defendant's Motion is frivolous and no hearing is necessary. The Defendant's Motion fails to set forth any credible basis in law or fact to support his requests." Defendant timely filed written notice *256 of appeal on 14 June 2017. After settlement of the record and the filing of briefs, Defendant filed a petition for writ of certiorari on 19 March 2018.
II. Jurisdiction
N.C. Gen Stat. § 15A-270.1 allows a defendant to "appeal an order denying the defendant's motion for DNA testing...." N.C. Gen. Stat. § 15A-270.1 (2017).
See also
State v. Doisey
,
III. Standard of Review
Our standard of review of a trial court's denial of a motion for postconviction DNA testing is "analogous to the standard of review for a motion for appropriate relief."
Gardner
,
IV. Analysis
Defendant's appellate argument is two-fold: (1) the trial court erred by denying his motion for DNA testing because he was entitled to appointment of counsel; and (2) the trial court erred by denying his motion to DNA testing prior to obtaining an inventory of evidence.
A. Entitlement to Appointment of Counsel
Defendant argues the court erred in denying his motion because N.C. Gen. Stat. § 15A-269 entitles him to appointment of counsel.
*719 N.C. Gen. Stat. § 15A-269 states:
the court shall appoint counsel for the person who brings a motion under this section if that person is indigent. If the petitioner has filed pro se, the court shall appoint counsel for the petitioner in accordance with the rules adopted by the Office of Indigent Defense Services upon a showing that the DNA testing may be material to the petitioner's claim of wrongful conviction.
N.C. Gen. Stat. § 15A-269(c) (2017) (emphasis added).
Our case law places the burden of proof to show materiality on the moving party. To meet this burden, a moving defendant must allege "more than the conclusory statement that the ability to conduct the requested DNA testing is material to the defendant's defense."
Gardner
,
In this case, Defendant entered a guilty plea and did not present any defense to the trial court. Recently, our Court acknowledged a guilty plea increases a defendant's burden to show materiality.
See
*257
State v. Randall
, --- N.C. App. ----, ----,
Defendant asserts these statements taken together meet his evidentiary burden and are not merely conclusory statements. We conclude otherwise and hold the aggregation of Defendant's conclusory statements communicates the same conclusory effect.
See
State v. Collins
,
Defendant's assertions are incomplete. He provided no information suggesting how new testing is different and more accurate. "Without more specific detail from Defendant, or some other evidence, the trial court [cannot] adequately determine whether additional testing would be significantly more accurate and probative[.]"
Id. at 412,
Defendant argues the trial court erred in "summarily denying his motion" for a complete inventory of all physical and biological evidence relating to his case. Defendant asks this Court to remand the matter to the trial court who would, in turn, reconsider Defendant's motion "in light of that inventory[.]" Defendant requested an inventory of evidence pursuant to N.C. Gen. Stat. § 15A-268 (2017) and N.C. Gen. Stat. § 15A-269, and we address each statute in turn.
1. Inventory of Evidence Pursuant to N.C. Gen. Stat. § 15A-268
N.C. Gen. Stat. § 15A-268 states:
(a1) Notwithstanding any other provision of law and subject to subsection (b) of this section, a custodial agency shall preserve any physical evidence, regardless of the date of collection, that is reasonably likely to contain any biological evidence collected in the course of a criminal investigation or prosecution.
*722 ...
(a7) Upon written request by the defendant , the custodial agency shall prepare an inventory of biological evidence relevant to the defendant's case that is in the custodial agency's custody. If the evidence was destroyed through court order or other written directive, the custodial agency shall provide the defendant with a copy of the court order or written directive.
N.C. Gen. Stat. § 15A-268(a1), (a7) (2017) (emphases added).
Under the plain language of the statute, custodial agencies are obligated to make an inventory of the biological evidence
3
when a defendant makes a "written request." N.C. Gen. Stat. § 15A-268(a7). However, a request for location and preservation of evidence is not a request for an inventory of evidence.
Doisey
,
Here, Defendant's motion was not for an
inventory
of evidence. He titled his motion as a "Motion to Locate and Preserve Evidence[.]" (All capitalized in original). He requested an order "to Locate and Preserve any and all physical and biological evidence" and for DNA testing of the evidence. Thus, the trial court did not err in denying Defendant's motion for postconviction DNA testing prior to obtaining an inventory of biological evidence which Defendant never requested, and we must dismiss this argument.
See
id.
at 447-48,
Assuming
arguendo
Defendant properly requested an inventory of biological evidence, case law would bind us to dismiss this argument.
4
Our Court recently addressed
*259
this issue in
State v. Randall
. In
Randall
, defendant requested "that the trial court require 'custodial law enforcement agency/agencies to inventory the biological evidence relating to his case.' "
2. Inventory of Evidence Pursuant to N.C. Gen. Stat. § 15A-269
N.C. Gen. Stat. § 15A-269 states:
(f) Upon receipt of a motion for postconviction DNA testing, the custodial agency shall inventory the evidence pertaining to that case and provide the inventory list, as well as any documents, notes, logs, or reports relating to the items of physical evidence, to the prosecution, the petitioner, and the court.
N.C. Gen. Stat. § 15A-269(f). Unlike N.C. Gen. Stat. § 15A-268, a defendant need not make a request for an inventory of physical evidence.
Doisey
,
Here, the record lacks proof either Defendant or the trial court served the custodial agency with the motion for inventory. Assuming arguendo it is the trial court's burden to serve the custodial agency with the motion, any error by the court below is harmless error. As held supra , Defendant failed to meet his burden of showing materiality. Accordingly, the trial did not err by denying his motion for DNA testing prior to an inventory under N.C. Gen. Stat. § 15A-269(f).
V. Conclusion
For the foregoing reasons, we dismiss part of Defendant's appeal and affirm the trial court's order.
DISMISSED IN PART; AFFIRMED IN PART.
Judges ELMORE and ZACHARY concur.
The trial court labeled Defendant's motions as one motion; however, the order addresses both of Defendant's motions.
The trial court's order is devoid of an explicit mention of materiality. Defendant did not bring forth any appellate argument regarding the lack of specific findings or conclusions of law addressing N.C. Gen. Stat. § 15A-269. It is not the role of this Court to make arguments for appellants.
Viar v. N.C. Dep't of Transp.
,
In
Gardner
, our Court did not require specific findings of fact or conclusions of law in the trial court's order denying defendant's motion for postconviction DNA testing. Our Court concluded the trial court's order was sufficient based on the following: (1) the court's statement it reviewed the allegations in defendant's motion; (2) the court citing N.C. Gen. Stat. § 15A-269(b) ; (3) other findings; and (4) the court's conclusion defendant failed to show the existence of any grounds for relief.
Our appellate review, without remand, does not run afoul of our Court's recent decision,
State v. Shaw
, --- N.C. App. ----,
N.C. Gen. Stat. § 15A-268 defines "biological evidence" as, inter alia , "any item that contains blood, semen, hair, saliva, skin tissue, fingerprints, or other identifiable human biological material...." N.C. Gen. Stat. § 15A-268(a) (2017).
In his motion, Defendant notes N.C. Gen. Stat. § 15A-268(a7) requires law enforcement to prepare an inventory of biological evidence. In his brief, Defendant asserts he was "independently entitled to an inventory of all biological evidence under § 15A-268(a7) because he specifically cited this provision in his motion requesting an inventory."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.