State v. Tilghman, ___ N.C. App. ___, 821 S.E.2d 253 (Oct. 2, 2018)

(1) The trial court did not err by denying the defendant’s motion for post-conviction DNA testing without appointing counsel. The statute requires appointment of counsel only on a showing that the DNA testing may be material to the defendant’s claim of wrongful conviction. The burden of establishing materiality is on the defendant. To meet this burden, the defendant must do more than make a conclusory statement that the ability to conduct the requested testing is material to the defense. Where—as here--the case involves a guilty plea, the defendant has a heightened burden to show materiality. Here, the defendant’s justifications for DNA testing are merely conclusory statements. In a footnote, the court noted that the trial court did not address materiality and that “a specific finding or conclusion of materiality” by the trial court “would be helpful to our appellate review.”

(2) The court rejected the defendant’s argument that the trial court erred by summarily denying his motion for a complete inventory of evidence under G.S. 15A-268. That statute provides that upon written request by the defendant the custodial agency shall prepare an inventory of biological evidence relevant to the case that is in the custodial agency’s custody. However, a request for location and preservation of evidence, as occurred here, is not a request for an inventory of evidence. Thus, the trial court did not err by denying the defendant’s motion for post-conviction DNA testing prior to obtaining an inventory of biological evidence which the defendant never requested. Even if the defendant had requested an inventory of biological evidence from the trial court, it would have been improper for the trial court to grant such a request where there was no evidence that the defendant had requested the inventory from the custodial agency.

(3) The court rejected the defendant’s argument that the trial court erred by summarily denying his motion for an inventory of evidence under G.S. 15A-269. That statute provides that upon receipt of a motion for post-conviction DNA testing the custodial agency shall inventory the evidence and provide an inventory list to, among others, the defendant. Under the statute, a defendant need not make a request for an inventory of physical evidence. Instead, the custodial agency’s obligation to do the inventory is triggered upon receipt of a motion for post-conviction DNA testing. Here, the record lacks proof that either the defendant or the trial court served the custodial agency with the motion for inventory. Assuming arguendo that the trial court had the burden to do so, any error that occurred is harmless because the defendant failed to meet his burden of showing materiality.