An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                   NO. COA14-76

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 July 2014


STATE OF NORTH CAROLINA

      v.                                    Johnston County
                                            No. 03 CRS 54060
LACY DOUGLAS HOCUTT



      Appeal by defendant from order entered 9 May 2013 by Judge

William R. Pittman in Johnston County Superior Court.                 Heard in

the Court of Appeals 30 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Kimberly N. Callahan, for the State.

      Kimberly P. Hoppin for defendant-appellant.


      BRYANT, Judge.


      Where defendant fails to show that DNA testing would be

material to his defense, we affirm the trial court’s denial of

defendant’s post-conviction motion for DNA testing.

      On   3   September   2004,    a   jury   found   defendant    guilty    of

first-degree murder under the theories of lying in wait and
                                                -2-
acting with premeditation and deliberation, and the trial court

sentenced defendant to life imprisonment without the possibility

of parole. Defendant appealed, and this Court found no error.

State    v.    Hocutt,     177     N.C.    App.        341,    628      S.E.2d    832,    appeal

dismissed, 361 N.C. 174, 641 S.E.2d 4 (2006).

      Acting pro se, on 29 March 2010, defendant filed with the

trial court motions for post-conviction DNA testing pursuant to

N.C. Gen. Stat. § 15A-269 and to locate and preserve evidence.

The trial court appointed counsel to represent defendant on the

motions, and on 29 January 2013, counsel filed an amended motion

for     post-conviction          DNA     testing.             In    his    amended       motion,

defendant sought DNA testing of a shotgun, shotgun shell, beer

can, and sunglasses.             Defendant contended a lack of the presence

of    his     DNA     on   these       four     items     would         constitute       “strong

evidence”      negating      the       State’s        theory       of   lying    in   wait   and

weakening the State’s theory of premeditation and deliberation.

Defendant further asserted that DNA analysis of the items may

identify another individual who handled them.

      By      order    entered      9     May    2013,        the       trial    court    denied

defendant’s motion for post-conviction DNA testing.                                   The court

found defendant had made no factual showing that the evidence

was material to his defense, or that new DNA tests on items
                                                 -3-
previously tested would provide results that are significantly

more       accurate      or     probative,         or   would          have     a    reasonable

probability of contradicting prior test results.                                Further, the

court      concluded       that     even    if    the   requested         DNA       testing    was

conducted,         there      was   not     a    reasonable      probability           that    the

verdict would have been more favorable to defendant.                                   Defendant

appeals.

                              ________________________________

       In    his    sole      argument      on    appeal,     defendant         contends       the

trial court erred in concluding the evidence was not material to

his defense and in denying the motion for post-conviction DNA

testing.      We disagree.

       This    Court       reviews        the    denial     of     a    motion       for     post-

conviction         DNA     testing     to       determine     if       the     trial    court’s

findings of fact are supported by competent evidence.                                  State v.

Gardner, ___ N.C. App. ___, ___, 742 S.E.2d 352, 354 (citation

omitted),      disc. review denied, ___ N.C. ___, 749 S.E.2d 860

(2013).       If so, they are binding on appeal.                              Id.     The trial

court’s conclusions of law are reviewed de novo.                              Id.

       A     defendant        may    seek        post-conviction          DNA       testing    of

evidence if it is material to the defendant’s defense, related

to     the    investigation          or     prosecution,         and      either       was    not
                                            -4-
previously tested for DNA or was tested but the new DNA test

would   provide   more    accurate          and   probative     results      or   has   a

reasonable    probability        of    contradicting          prior   test    results.

N.C. Gen. Stat. § 15A-269(a) (2013).                     “Favorable evidence is

material     if   there     is    a     reasonable       probability         that    its

disclosure to the defense would result in a different outcome in

the jury’s deliberation.”             State v. Hewson, ___ N.C. App. ___,

___, 725 S.E.2d 53, 56 (2012) (citations and quotation omitted).

A trial court shall grant a defendant’s post-conviction motion

for DNA testing if the defendant satisfies the above stated

conditions    precedent,     the       results     of    the    DNA   testing       would

produce “a reasonable probability that the verdict would have

been more favorable to the defendant,” and the defendant has

signed a sworn affidavit of innocence.                   N.C. Gen. Stat. § 15A-

269(b) (2013).

    Defendant      argued    in       his    motion     for    post-conviction        DNA

testing that DNA tests would show either a lack of his DNA or

the presence of the DNA of someone else on the four items he

sought to have      tested.           Defendant asserted that the results

would be “strong evidence” that would negate the State’s theory

of lying in wait and weaken the theory of premeditation and

deliberation.      However, even assuming that defendant’s beliefs
                                              -5-
regarding the presence of DNA on the items are correct, such

evidence      does    not   suggest      a    reasonable       probability        that    the

verdict would have been more favorable to defendant.

       Defendant did not testify at trial.                     However, his counsel

admitted      that    defendant     shot       and    killed    the    victim         with   a

shotgun. Defendant’s counsel argued that even though defendant

shot and killed the victim, he was only guilty of a lesser

offense and not guilty of first-degree murder.

       At   trial,     the       State’s      evidence     tended      to     show       that

defendant and the victim had a long history of animosity towards

each   other,    and    had      been    in    an    altercation      with    each     other

earlier on the day of the shooting.                     Hocutt, 177 N.C. App. at

344,    628    S.E.2d       at    836.          After    the     altercation,           while

defendant’s      girlfriend        was     driving      defendant      to    a    cookout,

defendant twice told her that he ought to shoot defendant.                                Id.

Defendant      then    demanded     that       his    girlfriend      stop       on   Branch

Chapel Church Road and let him out of the car.                         Id.        Defendant

retrieved a shotgun from the trunk of the car and demanded a

beer from his girlfriend.               Id.     After giving defendant a can of

Busch beer, defendant’s girlfriend drove off, leaving him on the

side of the road with the shotgun in his hand.                              Id.       Several

minutes later, a resident of Branch Chapel Church Road saw the
                                     -6-
victim drive by on a moped and then heard two gunshots.                   Id.

The victim was found nearby on the side of the road, suffering

from severe injuries.       Id.    He was transported to the hospital

where he died several days later.           Id.

                   [Investigating officers] found a Busch
              beer can, a pair of sunglasses, and an empty
              12-gauge shotgun shell casing in the woods
              near where [the victim] was found.      They
              also saw muddy footprints made by bare feet.
              Forensic    testing   revealed   defendant’s
              fingerprint on the sunglasses and his DNA on
              the beer can.     About two weeks later, a
              logger found a shotgun in the wooded area
              near the crime scene. . . .

                   [Later that evening, officers] saw the
              defendant walking down the road barefooted.
              He had scratches all over his body, was very
              dirty, and was staggering.         The officers
              recognized defendant and observed that he
              was very intoxicated.      They placed him in
              handcuffs and took him to jail for “detox
              purposes,” “to sober up.”      The next morning
              defendant was charged with assault with a
              deadly weapon with intent to kill inflicting
              serious injury, and attempted murder. . . .
              While at the Johnston County Detention
              Center,    defendant      made    incriminating
              statements   over     the    phone    to   [his
              girlfriend] and to his brother which were
              recorded, pursuant to jail policy. . . .
              Defendant’s     recorded statements that he
              shot [the victim] were introduced by the
              State at trial.

Id. at 345, 628 S.E.2d at 836—37.

       Based on this evidence, there is no reasonable probability

that    the    discovery   of     someone     else’s,   or   the   lack   of
                                      -7-
defendant’s, DNA on the shotgun, shotgun shell, beer can, or

sunglasses     would   result    in   a   different   outcome   in   a     jury’s

deliberation.      Defendant’s identity as the person who shot and

killed the victim was not at issue in this case.                The lack of

defendant’s DNA or presence of another person’s DNA on the items

would    not   contradict   defendant’s      admission   that   he   shot    and

killed the victim, nor would it have any bearing on the State’s

theories that defendant killed the victim after lying in wait or

with    premeditation   and     deliberation.     Accordingly,       the    trial

court did not err in concluding that defendant’s requested DNA

testing was not material to his defense, and the court’s order

denying defendant’s motion for post-conviction DNA testing is

affirmed.

       Affirmed.

       Judges STROUD and HUNTER, Robert N., Jr., concur.

       Report per Rule 30(e).
