Heard in the Court of Appeals January 6, 2015
Attorney General Roy Cooper, by Assistant Attorney General Laura Edwards Parker, for the State.
Don Willey for defendant-appellant.
HUNTER, JR., Robert N., Judge. Judges BRYANT and STROUD concur.
Appeal by Defendant from order entered 21 May 2014 by Judge Jesse B. Caldwell, III in Gaston County Superior Court,
HUNTER, JR., Robert N., Judge.
Victor Lee Turner (" Defendant" ) appeals from an order denying his motion for postconviction DNA testing pursuant to N.C. Gen. Stat. § § 15A-267, 268, 269, and 270 (2013). Defendant contends that the trial court erred in (1) denying Defendant's motion for DNA testing, and (2) failing to consider Defendant's request for the appointment of counsel pursuant to N.C. Gen. Stat. § 15A-269(c). For the following reasons, we find no error and affirm the trial court's order.
I. Factual & Procedural History
On 13 April 2005, Defendant pled guilty, in accordance with a plea agreement, to robbery with a dangerous weapon, first degree rape, possession of a firearm by a felon, two counts of first degree sexual offense, crime against nature, first degree kidnapping, and felony possession of cocaine. The facts presented as a foundation for the plea tended to show the following.
On the evening of 27 April 2004, Penelope Jones (" Ms. Jones" ), an employee of the Days Inn Motel in Gastonia, reported that she had been robbed and sexually assaulted while working as the night shift clerk. Officers from the Gastonia Police Department responded to the scene and, after interviewing Ms. Jones, transported her to the hospital. There, hospital personnel collected DNA specimens from Ms. Jones and placed the specimens into a sexual assault evidence kit. Gastonia Police took custody of the sexual assault evidence kit and placed it into evidence at the police station.
Subsequent investigation led police to identify Defendant as a suspect, and Defendant's DNA was sent to the State Bureau of Investigation (" SBI" ) for comparison with the DNA collected from the scene and from Ms. Jones' sexual assault evidence kit. A forensic biologist with the SBI analyzed the DNA samples and determined that the DNA profile obtained from Ms. Jones' thigh matched Defendant's DNA profile. The SBI analyst further found that the DNA profile obtained from Ms. Jones' vaginal swab was consistent with a mixture of DNA profiles of Ms. Jones and Defendant. The SBI analyst's report indicates that the DNA profile obtained from Ms. Jones' thigh is approximately " 9.62 million trillion times more likely to be observed if it came from [Defendant] than if it came from another unrelated individual in the N.C. Black population."
On 17 May 2004, Defendant was indicted for robbery with a dangerous weapon, first degree rape, possession of a firearm by a felon, two counts of first degree sexual offense, crime against nature, and first degree kidnapping. On 13 April 2005, Defendant pled guilty to all crimes for which he was indicted, as well as an unrelated felony possession of cocaine charge. The trial court consolidated the convictions into ...