              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-202

                                Filed: 21 April 2020

Warren County, No. 92-CRS-1839-40

STATE OF NORTH CAROLINA

             v.

KELVIN ALPHONSO ALEXANDER, Defendant.


      Appeal by Defendant from order entered 1 October 2018 by Judge Henry W.

Hight, Jr., in Warren County Superior Court. Heard in the Court of Appeals 18

September 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
      Uicker, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
      Gomez and Nicholas C. Woomer-Deters, for the Defendant.


      DILLON, Judge.


      Defendant Kelvin Alphonso Alexander appeals an order denying his post-

conviction motion to test DNA evidence and fingerprints in relation to a murder he

pleaded guilty to almost three decades ago in 1993.

                                   I. Background

      Early one morning in September 1992, two men robbed a gas station in

Norlina. During the robbery, one of the men shot and killed the gas station attendant.
                                STATE V. ALEXANDER

                                  Opinion of the Court



A witness told police that she saw the two men fleeing the scene and that one of the

men was Defendant, someone she had been acquainted with most of her life.

      In October 1992, Defendant was indicted for first-degree murder and armed

robbery in connection with the incident. Defendant pleaded guilty to second-degree

murder, and the State dismissed the robbery charge as part of a plea deal.

      In March 2016, Defendant filed a motion to test the DNA and fingerprints on

the shell casings/projectile found at the gas station after the killing. He alleged in

his motion that in 2004 an informant who was pleading guilty to an unrelated federal

crime told authorities that a Mr. Terry had admitted to him to the 1992 Norlina

murder/robbery shortly after it had occurred. Further, Defendant alleged that the

informant helped Mr. Terry retrieve the murder weapon from some woods near the

gas station. However, the record reflects that Mr. Terry testified at a hearing that

he was not involved in the incident, that he never confessed to the informant or

anyone else to the Norlina murder/robbery, and that he did not even know Defendant.

      The trial court denied Defendant’s motion for post-conviction, DNA testing.

Defendant appealed.

                                     II. Analysis

      There are essentially two issues before us. First, may a defendant who has

pleaded guilty seek post-conviction DNA testing under N.C. Gen. Stat. § 15A-269




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                                 STATE V. ALEXANDER

                                     Opinion of the Court



(2015)? Second, if so, has Defendant here met his burden of showing that the results

of such testing would be material to his defense?

         A. Availability of Post-Conviction Testing Following a Guilty Plea

      The State argues that, even if the results of any testing would prove material

to show Defendant’s innocence, Defendant is not entitled to seek testing under

Section 15A-269 because he pleaded guilty to the murder. Indeed, the Section states

that a defendant must show that testing would be “material to the defendant’s

defense,” N.C. Gen. Stat. § 15A-269(a)(1) (emphasis added), and that testing is

warranted only if “there exists a reasonable probability that the verdict would have

been more favorable to the defendant” had the requested DNA been tested earlier.

N.C. Gen. Stat. § 15A-269(b)(2) (emphasis added). The State argues in its brief that

“[t]he plain meaning of ‘defense’ and ‘verdict’ [in Section 15A-269] presupposes the

existence of a trial and a determination of guilt based on evidence presented to the

fact finder,” and that a defendant who pleads guilty has put up no defense and results

in a conviction without a verdict.

      Based on controlling precedent, we conclude that Defendant is not disqualified

from seeking post-conviction DNA testing merely for having pleaded guilty.

Specifically, in June 2018, our Court held that a defendant was not automatically

barred from seeking post-conviction DNA testing merely because he entered a plea of

guilty. State v. Randall, 259 N.C. App. 885, 887, 817 S.E.2d 219, 221 (2018). In



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                                  Opinion of the Court



reaching this conclusion, the Randall panel relied on language from an opinion by

our Supreme Court that “ ‘[i]f the DNA testing being requested had been conducted

on the evidence, there exists a reasonable probability that the verdict would have

been more favorable to the defendant.’ ” Id. at 887, 817 S.E.2d at 220 (quoting State

v. Lane, 370 N.C. 508, 518, 809 S.E.2d 568, 575 (2018)). The Randall panel then

reasoned that there may be rare situations where there is a reasonable probability

that a defendant would not have pleaded guilty in the first instance and would have

not otherwise been convicted had he had the results of DNA testing when faced with

the charges. See id. at 887, 817 S.E.2d at 221.

      For example, suppose that an innocent person is charged with a murder based

on the statements of several (mistaken) eyewitnesses. It may be that this innocent

defendant will plead guilty to second-degree murder rather than risk being found

guilty of first-degree murder and sentenced to death. However, suppose further that

certain DNA found at the scene conclusively belonged to the actual killer. In that

situation, there is a reasonable probability that the outcome would have been

different had the results of DNA testing been available to the innocent defendant

before he decided to plead guilty. There is a reasonable probability that he would

have pleaded not guilty and that the DNA would point to someone who merely looked

like him, leading to his acquittal or to the charges being dropped.




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                                       STATE V. ALEXANDER

                                         Opinion of the Court



       We recognize the argument that the word “verdict” appearing in Section 15A-

269 suggests that our General Assembly intended for post-conviction, DNA testing to

be available only where there has been an actual verdict rendered. And there is no

verdict in a matter where a defendant has pleaded guilty. But there is a strong

counter-argument that the General Assembly did not intend for the word “verdict” to

be construed in such a strict, legal sense. Rather, the General Assembly intended for

“verdict” to be construed more broadly, to mean “resolution,” “judgment” or “outcome”

in a particular matter. To read “verdict” in a strict, legal sense would lead to an

absurd result, clearly not intended by the General Assembly. That is, any defendant

who pleads “not guilty” but convicted by a judge after a bench trial would not be

eligible to seek post-conviction DNA testing if a strict interpretation of “verdict” is

applied: only juries (and not judges) render verdicts in a strict, legal sense.1




       1  Our Supreme Court has defined “verdict” as “the unanimous decision made by the jury and
reported to the court.” State v. Hemphill, 273 N.C. 388, 389, 160 S.E.2d 53, 55 (1968) (emphasis added).
Our Rules of Civil Procedure describe the decisions of juries as “verdicts,” see N.C. Gen. Stat. § 1A-1,
Rule 49 (2015), and decisions by judges in bench trials as “findings” by the court. See N.C. Gen. Stat.
§ 1A-1, Rule 52. Black’s Law Dictionary recognizes that the technical definition of “verdict” is a
decision rendered by a jury, and not a judge:

               The formal and unanimous decision or finding of a jury . . . . The word
               “verdict” has a well-defined signification in law. It is the decision of
               the jury, and it never means the decision of a court or a referee or a
               commissioner [though] in common language, the word “verdict” is
               sometimes used in a more extended sense, but in law it is always used
               to mean the decision of a jury.

Verdict, Black’s Law Dictionary (7th ed. 1999).

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                                  STATE V. ALEXANDER

                                   Opinion of the Court



      We note that a few months after our Court decided Randall, our Supreme

Court in September 2018 affirmed, per curiam without any explanation, an

unpublished opinion of our Court in which we suggested that post-conviction DNA

testing was not available to defendants who had pleaded guilty. State v. Sayre, 255

N.C. App. 215, 803 S.E.2d 699, 2017 N.C. App. LEXIS 696 (2017) (unpublished), aff’d

per curiam, 371 N.C. 468, 818 S.E.2d 101 (2018).

      Specifically, in that case, we held that a defendant was not entitled to post-

conviction DNA testing because (1) the defendant failed to show how testing would

be material to show that he was not the perpetrator and (2) “by entering into a plea

agreement with the State and pleading guilty, defendant presented no ‘defense’

pursuant to N.C. Gen. Stat. § 15A-269(a)(1).” Id. at *5. However, only the first issue

was before the Supreme Court on appeal, as that issue was the only basis for the

dissent from our Court, and the defendant did not seek review of the second issue.

See id. at *6 (Murphy, J., dissenting). Therefore, the Supreme Court’s per curiam

affirmance was only on this first issue, that the defendant failed to show that testing

would be material in that case.

                                    B. Materiality

      Section 15A-269 permits a defendant to obtain post-conviction DNA testing if

he meets his burden of showing that the results of such testing, among other things,

would be “material” to his defense. N.C. Gen. Stat. § 15A-269.



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                                STATE V. ALEXANDER

                                  Opinion of the Court



      Our Supreme Court has held that “[a] trial court’s determination of whether

defendant's request for postconviction DNA testing is ‘material’ to his defense, as

defined in N.C.G.S. § 15A-269(b)(2), is a conclusion of law, and thus we review de

novo the trial court’s conclusion that defendant failed to show the materiality of his

request.” State v. Lane, 370 N.C. 508, 517-18, 809 S.E.2d 568, 574 (2018).

      Further, whether evidence is “material” to a defendant’s defense is determined

by whether “there exists a reasonable probability that the verdict would have been

more favorable to the defendant.” Id. at 519, 809 S.E.2d at 575. It is the defendant’s

burden, though, to show such materiality is present. Id. at 518, 809 S.E.2d at 574.

      Here, Defendant contends that the requested DNA and fingerprint testing is

material because the evidence “would exculpate [Defendant] by corroborating [the

informant’s] testimony” about Mr. Terry’s involvement in the murder/robbery. We

note, however, there was substantial evidence of Defendant’s guilt, including (1) the

eyewitness who saw Defendant fleeing the scene; (2) Defendant’s admission that he

was at the scene during the investigation of the crime; and (3) Defendant’s admission,

through his guilty plea, that he, in fact, committed the crime.

      We conclude that Defendant has failed to show how it is reasonably probable

that he would not been convicted of at least second-degree murder based on the

results of the DNA and fingerprint testing. That is, the presence of another’s DNA

or fingerprints on this or other evidence would not necessarily exclude Defendant’s



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                                      STATE V. ALEXANDER

                                        Opinion of the Court



involvement in the crime. The presence of another’s DNA or fingerprints could be

explained by the possibility that someone else handled the casings/projectile prior to

the crime or that the DNA or fingerprints are from Defendant’s accomplice, as there

were two involved in the murder. Our jurisprudence sets a high bar to establish

materiality in such cases, especially for those who have pleaded guilty. See State v.

Tilghman, ___ N.C. App. ___, ___, 821 S.E.2d 253, 256 (2018) (stating that “a guilty

plea increases a defendant’s burden to show materiality”). Thus, we conclude that

Defendant has failed to meet his burden of showing materiality.2

                                         III. Conclusion

       Defendant has failed to demonstrate that the evidence he seeks to have tested

is material to his defense. As such, we affirm the trial court’s denial of his motion.

       AFFIRMED.

       Judge BROOK concurs.

       Judge BERGER concurs by separate opinion.




       2 We note the State’s argument that the issue regarding the testing of the fingerprints is not
before us on appeal, contending that the trial court only ruled on the DNA evidence, and not the
fingerprint evidence. However, the record shows that in his motion, Defendant sought testing for both
and that in its order, the trial court denied Defendant’s motion, without any limiting language.

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 No. COA19-202 – State v. Alexander


      BERGER, Judge, concurring in separate opinion.


      I concur only in the result reached by the majority. I write separately because

a defendant who pleads guilty is not entitled to post-conviction DNA testing. See

State v. Sayre, No. COA17-68, 2017 WL 3480951 (N.C. Ct. App. Aug 15, 2017), aff’d

per curiam, 371 N.C. 468, 818 S.E.2d 101 (2018).

      On November 16, 1993, Defendant pleaded guilty to second degree murder.

Defendant signed a standard Transcript of Plea, in which he acknowledged that he

was “in fact guilty” of murdering Carl Eugene Boyd. Following a colloquy with the

trial court, Defendant’s plea was accepted upon findings that there was a factual basis

for Defendant’s plea of guilty and that the plea was entered freely, voluntarily, and

understandingly by Defendant.

      A defendant may make a motion for post-conviction DNA testing if the

biological evidence

             (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.
                    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.
                                  STATE V. ALEXANDER

                          Berger, J., concurring in separate opinion



N.C. Gen. Stat. § 15A-269(a) (2019). A trial court shall grant a defendant’s motion

for post-conviction DNA testing if

              (1)     The conditions set forth in subdivisions (1), (2), and
              (3) of subsection (a) of this section have been met;
              (2)     If the DNA testing being requested had been
              conducted on the evidence, there exists a reasonable
              probability that the verdict would have been more
              favorable to the defendant; and
              (3)     The defendant has signed a sworn affidavit of
              innocence.

N.C. Gen. Stat. § 15A-269(b).

      A defendant who has pleaded guilty cannot establish that post-conviction DNA

testing would be material to his defense as required by N.C. Gen. Stat. § 15A-

269(a)(1).   This Court has previously determined that “by entering into a plea

agreement with the State and pleading guilty, defendant presented no ‘defense’

pursuant to N.C. Gen. Stat. § 15A-269(a)(1).” Sayre, 2017 WL 3480951, at *2.

      The majority contends that our Supreme Court affirmed only that portion of

Sayre addressing appointment of counsel. According to the majority, the affirmance

by our Supreme Court did not address the issue of guilty pleas under Section 15A-

269, and, therefore, is not binding on this Court.

      It is correct that review by our Supreme Court is generally limited to the issue

or issues “specifically set out in the dissenting opinion as the basis for that dissent.”

N.C. R. App. 16(b) (2019). In Sayre, Judge Murphy states that he dissents from the

majority opinion because the defendant’s allegations of materiality under Section


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                                  STATE V. ALEXANDER

                          Berger, J., concurring in separate opinion



15A-269 entitled him to appointment of counsel. However, Judge Murphy’s dissent

correctly addresses the materiality standard under subsection (a)(1). The dissent

discusses State v. Cox, 245 N.C. App. 307, 781 S.E.2d 865 (2016), in which the

defendant argued the trial court erred in denying him counsel pursuant to Section

15A-269(c).

      The defendant in Cox sought post-conviction DNA testing following his plea of

guilty to statutory rape.    This Court held that a showing of materiality under

subsection (a)(1) was “a condition precedent to the trial court’s authority to grant his

motion and appoint him counsel.” Cox, at 312, 781 S.E.2d at 868.

      Further, this Court has stated,

              [W]e reject [d]efendant’s contention that the threshold
              materiality requirement for the appointment of counsel for
              purposes of N.C. Gen. Stat. § 15A-269(c) is less demanding
              than that required for actually ordering DNA testing
              pursuant to N.C. Gen. Stat. § 15A-269(a)(1) and hold that,
              in order to support the appointment of counsel pursuant to
              N.C. Gen. Stat. § 15A-269(c), a convicted criminal
              defendant must make an allegation addressing the
              materiality issue that would, if accepted, satisfy N.C. Gen.
              Stat. § 15A-269(a)(1).

State v. Gardner, 227 N.C. App. 364, 368, 742 S.E.2d 352, 355 (2013) (citation and

quotation marks omitted).

      Even though Judge Murphy indicated he was dissenting on the issue of

appointment of counsel, his reasoning and the law on materiality under subsection

(a)(1) are so intertwined that the per curiam opinion from our Supreme Court in Sayre


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                                      STATE V. ALEXANDER

                              Berger, J., concurring in separate opinion



can only be read as affirming the entire majority opinion from this Court.3 See

Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 761, 758 S.E.2d

169, 177-78 (2014) (citation and quotation marks omitted) (“Per curiam decisions

stand upon the same footing as those in which fuller citations of authorities are made

and more extended opinions are written.”).

       Our Supreme Court has stated that a defendant’s plea of guilty is a “formal

confession[] of guilt.” State v. Caldwell, 269 N.C. 521, 524, 153 S.E.2d 34, 36 (1967).

See also State v. Elliott, 269 N.C. 683, 685, 153 S.E.2d 330, 332 (1967) (“Defendant’s

plea of guilty in open court is [a] confession[.]”). Further,

               “[a] valid guilty plea . . . serves as an admission of all the
               facts alleged in the indictment or other criminal process.”
               State v. Thompson, 314 N.C. 618, 623-24, 336 S.E.2d 78, 81
               (1985) (citations omitted). A guilty plea is “[a]n express
               confession” by a defendant who “directly, and in the face of
               the court, admits the truth of the accusation.” State v.
               Branner, 149 N.C. 559, 561, 63 S.E. 169, 170 (1908).

State v. Chandler, ___ N.C. App. ___, ___, 827 S.E.2d 113, 116 (2019). In addition, it

is well settled that a plea of guilty “leaves open for review only the sufficiency of the

indictment and waives all defenses other than that the indictment charges no




       3 This case illustrates at least one of the reasons why per curiam decisions can be problematic.
Judges and practitioners benefit from certainty and clearly developed jurisprudence. The issue in this
case could have been settled with a full opinion from our Supreme Court in Sayre. However, our case
law has developed around Randall. Courts have likely invested unnecessary time, energy, and
resources handling motions for post-conviction DNA testing where defendants entered guilty pleas.

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                                 STATE V. ALEXANDER

                         Berger, J., concurring in separate opinion



offense.” State v. Smith, 279 N.C. 505, 506, 183 S.E.2d 649, 650 (1971) (citation and

quotation marks omitted).

      Defendant here did not enter an Alford plea. Therefore, his plea of guilty

served as a confession to the murder of Carl Eugene Boyd and an admission to the

truthfulness of all of the facts surrounding his involvement. Accordingly, Defendant

waived all defenses available to him, and he cannot show materiality under Section

15A-269(a)(1).

      The majority relies on State v. Randall, 259 N.C. App. 885, 817 S.E.2d 219

(2018) in determining that a defendant who pleads guilty may seek post-conviction

DNA testing pursuant to N.C. Gen. Stat. § 15A-269. However, as set forth above,

Sayre should be viewed as controlling in this case. “The Court of Appeals has no

authority to overrule decisions of the Supreme Court and has the responsibility to

follow those decisions until otherwise ordered by the Supreme Court,” thus this

Court’s decision should be controlled by Sayre. Dunn v. Pate, 334 N.C. 115, 118, 431

S.E.2d 178, 180 (1993) (purgandum).

       In addition, the majority misses the mark on its discussion of the term

“verdict” in N.C. Gen. Stat. § 15A-269(b). The majority defines “verdict” and even

quotes case law from our Supreme Court telling us what that term means. But, the

majority, without any citation or attribution, simply declares that “the General




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                                  STATE V. ALEXANDER

                          Berger, J., concurring in separate opinion



Assembly intended for ‘verdict’ to be construed more broadly, to mean ‘resolution,’

‘judgment,’ or ‘outcome’ in a particular matter.”

      “When the language of a statute is plain and free from ambiguity, expressing

a single, definite and sensible meaning, that meaning is conclusively presumed to be

the meaning which the Legislature intended, and the statute must be interpreted

accordingly.” Dep’t of Transp. v. Adams Outdoor Advert. of Charlotte Ltd. P’ship, 370

N.C. 101, 107, 804 S.E.2d 486, 492 (2017) (citation and quotation marks omitted).

Legislative intent “may be found first from the plain language of the statute . . . . If

the language of a statute is clear, the court must implement the statute according to

the plain meaning of its terms so long as it is reasonable to do so.” Midrex Techs.,

Inc. v. N.C. Dep’t of Revenue, 369 N.C. 250, 258, 794 S.E.2d 785, 792 (2016) (citation

and quotation marks omitted). “The intent of the legislature . . . is to be found not in

what the legislature meant to say, but in the meaning of what it did say.” Burnham

v. Adm’r, Unemployment Comp. Act, 184 Conn. 317, 325, 439 A.2d 1008, 1012 (1981).

      The majority finds no ambiguity in the term “verdict;” it simply laments the

plain meaning of the statute.

      If the plain language of Section 15A-269 is not clear enough, the General

Assembly has established what a verdict is. N.C. Gen. Stat. § 15A-1237, titled

“Verdict,” states that:

             (a)   The verdict must be in writing, signed by the
             foreman, and made a part of the record of the case.


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                                  STATE V. ALEXANDER

                          Berger, J., concurring in separate opinion



             (b)    The verdict must be unanimous, and must be
             returned by the jury in open court.
             (c)    If the jurors find the defendant not guilty on the
             ground that he was insane at the time of the commission of
             the offense charged, their verdict must so state.
             (d)    If there are two or more defendants, the jury must
             return a separate verdict with respect to each defendant. If
             the jury agrees upon a verdict for one defendant but not
             another, it must return that verdict upon which it agrees.
             (e)    If there are two or more offenses for which the jury
             could return a verdict, it may return a verdict with respect
             to any offense, including a lesser included offense on which
             the judge charged, as to which it agrees.

N.C. Gen. Stat. § 15A-1237 (2019).

      Accordingly, for there to be “a reasonable probability that the verdict would

have been more favorable to the defendant,” under Section 15A-269, there must have

been a verdict returned by a jury. N.C. Gen. Stat. § 15A-269(b)(2) (emphasis added).

Use of the term “verdict” obviously has a “single, definite and sensible meaning.”

Adams Outdoor Advert. of Charlotte Ltd. P’ship, 370 N.C. at 107, 804 S.E.2d at 492.

The majority should be faithful to the plain language of the statute, and not rewrite

it with its own definition.

      Also, the requirement of an affidavit of innocence in Section 15A-269(b)(3) is

inconsistent with a defendant’s plea of guilty. Defendants provide sworn answers to

the questions on their transcript of plea. A defendant who, under oath, admits guilt

to a charged offense, cannot thereafter provide a truthful affidavit of innocence.

Allowing sham affidavits makes a mockery of the procedure established by the

General Assembly.

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                                STATE V. ALEXANDER

                        Berger, J., concurring in separate opinion



      Defendant here swore under oath that he was in fact guilty of murdering and

robbing Carl Eugene Boyd in September 1992. Twenty-three years later he signed a

document and swore that he was innocent. It cannot be both. This demonstrates just

another reason why a defendant cannot plead guilty and later be entitled to post-

conviction DNA testing pursuant to the plain language of N.C. Gen. Stat. § 15A-269.




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