               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 606A05-3

                                 Filed 2 March 2018

STATE OF NORTH CAROLINA

              v.

ERIC GLENN LANE


      Appeal pursuant to N.C.G.S. § 15A-270.1 from an order entered on 18 August

2015 by Judge Arnold O. Jones, II in Superior Court, Wayne County.      Heard in the

Supreme Court on 11 December 2017.


      Joshua H. Stein, Attorney General, by Nicholaos G. Vlahos, Assistant Attorney
      General, for the State.

      Glenn Gerding, Appellate Defender, by Daniel Shatz, Assistant Appellate
      Defender, for defendant-appellant.


      BEASLEY, Justice.


      In this appeal we consider the materiality of postconviction DNA testing of hair

samples in a capital case. In denying defendant’s motion for postconviction DNA

testing, the trial court found that defendant failed to show the requested testing was

material to his defense—specifically, that there was no reasonable probability that

the verdict would have been more favorable to defendant if the testing had been

conducted. We agree and hold defendant has failed to prove the materiality of his

request.
                                       STATE V. LANE

                                     Opinion of the Court



       On 7 April 2003, defendant was indicted in Wayne County for first-degree

murder, first-degree statutory rape, first-degree statutory sex offense, indecent

liberties with a minor, lewd and lascivious conduct, and first-degree kidnapping of

five-year old “P.W.”1 Defendant was tried capitally in Wayne County, and his first

trial in the fall of 2004 ended in a mistrial due to juror misconduct. Defendant’s

second trial commenced on 1 June 2005.


           The evidence at trial2 tended to show that at approximately 4:45 p.m. on

Friday, 17 May 2002, P.W. was playing at her friend Michael’s house and riding a red

and white bicycle up and down his driveway. The two children saw defendant in his

nearby yard and went over to play on his swing set. At one point, the children went

inside defendant’s house to look at his goldfish and eels and then eventually returned

to Michael’s house. Around 6:30 p.m., Michael’s mother told P.W. that she needed to

go home because Michael and his family were leaving for the evening. P.W. left on

the red and white bicycle.


       When it was time for her dinner, P.W. could not be found at Michael’s house or

in the neighborhood. P.W.’s family repeatedly searched the neighborhood to no avail



       1  Pursuant to North Carolina Rules of Appellate Procedure 4(e), the decedent’s initials
are used to protect her identity.
        2 A more detailed version of the procedural history and the evidence presented at trial

in this case can be found in State v. Lane, 365 N.C. 7, 707 S.E.2d 210 (2011); here we recite
an abbreviated version of the procedural history and facts of the case with emphasis on that
which is necessary for analysis of defendant’s materiality argument.

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                                 Opinion of the Court



and called law enforcement the next morning. After commencing a general search

for P.W. and questioning several people, including defendant, law enforcement

agencies were unable to find P.W. Defendant’s home and property were searched

multiple times with his consent, and his story about his interactions with P.W.

remained consistent throughout the weekend despite multiple interviews: namely,

P.W. and Michael had been at defendant’s house for about ten minutes on Friday

afternoon to play on his swing set and the children came inside briefly to view his

goldfish and eels.


      During the early afternoon of Sunday, 19 May 2002, local residents discovered

P.W.’s body while they were fishing in a nearby creek. Her upper body was wrapped

in a trash bag; her legs were pulled up to her chest with duct tape, and her face and

hair were not visible due to the duct tape wrapped around her head. The crotch of

her shorts and panties had been jaggedly cut, and that area was bloody and red. An

autopsy later showed that P.W. had suffered some blunt force trauma, had several

bruises and lacerations, and had sustained a sexual assault. The official cause of

P.W.’s death was “asphyxia secondary to suffocation,” and the medical examiner

concluded that P.W. had been alive when she was put into the trash bag. She died in

part because she vomited while struggling against the duct tape and breathed some

of the vomit into her lungs. A red and white bicycle, identified as the one P.W. had

been riding on Friday evening, was also discovered in the creek. A blue tarp rolled

up with duct tape at one end was found in a nearby ditch.

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                                  Opinion of the Court



      Several witnesses reported they had seen a white male on a red scooter or

moped between 7:15 and 7:45 p.m. on Friday night near the bridge that crossed the

creek where P.W.’s body was discovered. The witnesses described the scooter as

having a black basket and reported that the rider wore a light or white helmet. The

witnesses also reported seeing the man struggle with both a large bundle wrapped in

a blue tarp and a small red and white bicycle. Based on this information and their

knowledge that defendant had a red scooter, law enforcement returned to defendant’s

house. Defendant consented to another search of his residence and the storage sheds

on his property, where law enforcement found a red scooter with a black basket, a

white helmet, rolls of duct tape and electrical tape with blue fibers consistent with

the tarp found near where P.W.’s body was discovered, and trash bags similar to the

one wrapped around P.W.’s upper body. Again, defendant repeated that he had not

seen P.W. after she left his house with Michael on Friday afternoon, and his story

remained consistent with previous interviews.


      But on 21 May 2002, defendant made a confession, first orally and then

reduced to writing, which he corrected and signed:

             I, Eric Lane, came home from work on Friday, May 17,
             2002, at about 3:00 p.m. or 3:30 p.m. I . . . started drinking
             beer. Michael . . . and [P.W.] . . . came over to my house at
             about ten or 15 minutes after I got home. I had drank
             about three beers before they got there. They [ ] were
             riding bicycles. I was lying in the backyard in front of the
             swing. They asked if they could swing. I said yes. They
             asked me to push them on the swing so I did. . . . [P.W.]
             asked for something to drink. I went in the house and got

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                        STATE V. LANE

                       Opinion of the Court



some—got them some Pepsi. They came to the door and
[P.W.] stepped in the house. . . . I told them to go look at
the eels which were in the living room. They then went to
[my son’s] room to look at the goldfish. They stayed in the
house about ten minutes. They then went back outside and
played on the swing again. I went back out with them.

....

       After about five minutes . . . [they] left. . . .

       . . . I was still drinking. About 15 minutes later,
[P.W.] came back to the house riding a white and red
bicycle. She asked if she could look at the eels again so we
went in the house. At first I sat at the kitchen table while
[P.W.] played with [my son’s] toys in his room. She played
in his room for ten or 15 minutes. I was still drinking beer.

      I got up and started feeding the eels and she came
into the living room with me. She was wearing jean
shorts/skirt. I don’t remember what color her shirt was.
She was wearing white tennis shoes. I think I was wearing
tan shorts. I wasn’t wearing a shirt. I was wearing my
white cap with “USA” and American flag on it.

       I started playing with her, tickling her. She fell on
the floor laughing. We were both [on] the floor playing.
The next thing I remember I woke up on top of her. I
pushed myself up with my hand which was on her
shoulder. She was unconscious. My shorts were down as
well as my underwear. I pulled up her shorts and maybe
her panties. They were not all the way down. I shook her
trying to get her to wake up. I had my hands on her
shoulders while shaking her.

       I started to walk around the house and tried to
figure out what happened. . . . I then walked outside where
I saw her bicycle. I put it in the white building. I walked
around the building for ten or 15 minutes trying to figure
out what to do. I knew I had to get her out so I grabbed a
blue tarp in the white building and got a roll of duct tape


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                      Opinion of the Court



out of the other building. I grabbed the trash bag out of the
trash can because it was the only one I had. It was white
with red handles. I wrapped her in the trash bag and then
taped the bag around her. I put the tarp around her and
wrapped her in the tarp. I taped the tarp around her. I
drank for a minute. I got her and a couple of beers and
went to the white building. I put her in the middle of my
scooter where you put your feet. My scooter is red. . . . I
hung the bicycle on the scooter basket. I then left on the
scooter.

      I went to the creek. [Defendant described the route
he took]. . . . I got to [the] creek, parked the scooter and got
[P.W.] and the bicycle off the scooter. The tarp came off of
her when I was getting her off. I don’t know what time it
was but it was getting dark.

       A car came so I ran and threw the bicycle in the
creek and [hid] under the bridge. I sat there and drank the
two beers I had and threw the bottles in the creek. I laid
the body at the edge of the water under the bridge where
someone could find it.

      I grabbed the tarp and went to the scooter. I took
the same path back home. The tarp blew off on the way
back. I didn't stop to get it. I just went home.

       . . . I guess I raped her, too, but I don’t remember.

       I was wearing a white helmet when I took [P.W.] to
the creek.

        When I pulled out of my driveway, the body almost
fell off the scooter. I stopped and pulled her back onto the
scooter. . . . I was wearing a red pullover shirt and a blue
jacket and tan shorts. The deputies have all the clothing
that I was wearing except for the red shirt, which is still at
the house. There was no blood on the floor of my house. I
remember seeing a black SUV at the end of my driveway
when I stopped to pull the tarp back on the scooter.



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                                    STATE V. LANE

                                  Opinion of the Court



                    I remember that when [P.W.] and I were in the living
             room, I started tickling her and we both were on the floor.
             I tickled her between her legs and her private parts area.
             Her pants came down. Somehow my pant[s] came down
             also. I don’t remember actually having sex with her but
             I'm pretty sure I did. I don’t remember looking for signs
             that we had sex. I thought she was dead when I put the
             trash bag over her. She never moved so I thought I had
             suffocated her with my body or her neck twisted and she
             died.

During the interview, defendant expressed shame and remorse by making statements

such as: “I’m sick. I’m a sick person. I wish I was dead,” and “I’m a rapist and a

killer. I wish I was dead.” Defendant subsequently gave a second statement utilizing

the same timeline and details, saying he “d[id] not remember but if the girl was

sexually molested then I must have did [sic] it” and recounting how he wrapped P.W.’s

body in a tarp and disposed of her at the creek. Based on his confession, defendant

was arrested and deputies returned to his home to conduct another search. They

recovered the shirt and shoes defendant said he had been wearing the day P.W. died,

as well as a piece of defendant’s living room carpet.


      The State presented forensic evidence at trial. The trash bag in which P.W.

was found was determined to be consistent with others taken from defendant’s home.

Blue fibers found on defendant’s gloves and clothes, scooter, a roll of duct tape taken

from defendant’s home, P.W.’s body and clothing, the trash bag P.W. was wrapped in,

the duct tape around her body, and defendant’s carpet and bed cover were determined

to be consistent with the blue tarp fabric found near the creek where P.W.’s body was


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                                  Opinion of the Court



recovered.   North Carolina State Bureau of Investigation Special Agent James

Gregory testified that neither defendant nor his maternal relatives could be excluded

as the source of a small Caucasian hair fragment found in P.W.’s anal cavity during

the autopsy. Special Agent Gregory also testified that the hairs collected from the

living room carpet sample and defendant’s vacuum cleaner were “microscopically

consistent” with P.W.’s hair, meaning they could have come from P.W. or anyone else

whose hair had similar characteristics. Finally, Special Agent Gregory testified about

his examination of the contents of the trash bag in which P.W.’s body was found.

Among the debris found in the trash bag, he discovered nine to ten body hair

fragments consistent with African ancestry. Special Agent Gregory did not conduct

any further testing on these fragments (hair samples) because he was “specifically

looking for Caucasian head hairs.” State Bureau of Investigation Special Agent Suzi

Barker testified that she examined the vaginal and rectal swabs and smears from

P.W.; however, she saw no sperm or semen in any of the samples.


      On 8 July 2005, the jury convicted defendant of first-degree murder based on

malice, premeditation, and deliberation, as well as under the felony murder rule. The

jury also convicted defendant on all remaining charges, except for the charge of lewd

and lascivious conduct, which the trial court dismissed.        Following a capital

sentencing proceeding in which defendant represented himself without assistance of

counsel, the jury found two aggravating circumstances regarding the murder: (1)

defendant committed the murder while engaged in the commission of rape, first-

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                                  Opinion of the Court



degree sexual offense, or kidnapping, and (2) the murder was especially heinous,

atrocious, or cruel. The jury found as a non-statutory mitigating circumstance that

defendant has a learning disability. After determining the mitigating circumstance

was insufficient to outweigh the aggravators, the jury recommended and the trial

court imposed the death penalty. The trial court also ordered that defendant serve

additional terms totaling 809 to 1010 months for the noncapital convictions.

Defendant appealed directly to this Court, and this Court allowed defendant’s motion

to bypass the Court of Appeals as to his appeals from the noncapital convictions.


      On 12 December 2008, this Court remanded the case to the trial court for a

further hearing to determine whether defendant was capable of self-representation

under Indiana v. Edwards, 554 U.S. 164, 171 L. Ed. 2d 345 (2008). See State v. Lane,

362 N.C. 667, 668, 669 S.E.2d 321, 322 (2008) (per curiam), clarified by ___ N.C. ___,

706 S.E.2d 775 (2009) (order) (instructing the trial judge to determine whether

defendant fell within the category of “borderline-competent” or “gray-area”

defendants who are “competent enough to stand trial . . . but who still suffer from

severe mental illness to the point where they are not competent to conduct trial

proceedings by themselves”). The trial court conducted an evidentiary hearing and

determined that defendant was not a “borderline-competent” or “gray-area”

defendant as defined in Edwards, and was thus competent to represent himself.




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                                  Opinion of the Court



      Considering the Edwards issue and others, on 11 March 2011, this Court found

that “defendant received a fair trial and capital sentencing proceeding free of

prejudicial error, and that the death sentence recommended by the jury and imposed

by the trial court [was] not excessive or disproportionate.” State v. Lane, 365 N.C. 7,

40, 707 S.E.2d 210, 230, cert. denied, 565 U.S. 1081, 181 L. Ed. 2d 529 (2011).


      Defendant was appointed postconviction counsel, and on 12 December 2014,

defendant filed a motion pursuant to N.C.G.S. § 15A-269 seeking postconviction DNA

testing of the vaginal and rectal swabs and smears collected from the victim’s body

during an autopsy. The State did not object, and on 7 January 2015, the trial court

entered an order permitting defendant to submit the vaginal and rectal swabs and

smears to Sorenson Forensics, LLC (Sorenson), an independent laboratory approved

by the North Carolina State Crime Laboratory for DNA testing pursuant to N.C.G.S.

§ 15A-266.7(a)(2). An initial forensic case report, dated 25 March 2015, indicated

that Sorenson found sperm that the North Carolina State Crime Laboratory failed to

detect in the vaginal and rectal swabs and smears. The trial court conducted a

hearing on 2 April 2015 to determine what further DNA testing was required to

assess whether the postconviction DNA testing results were favorable or unfavorable

to defendant pursuant to N.C.G.S. § 15A-270. Defendant agreed to further DNA

testing on the vaginal and rectal swabs and smears, and the trial court ordered

Sorenson to conduct STR and Y-STR DNA testing on the sperm fraction discovered



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                                 Opinion of the Court



in the vaginal and rectal swabs and compare the results with defendant’s liquid blood

sample taken in 2002 and defendant’s newly ordered buccal (cheek) swab sample.


      On 11 May 2015, the trial court held an evidentiary hearing under N.C.G.S. §

15A-270 to evaluate the results of Sorenson’s DNA testing. Before the hearing,

defendant objected to any evidence that would be offered by the State on whether the

results of Sorenson’s DNA testing were favorable or unfavorable to him because no

motion for appropriate relief regarding the DNA evidence was pending before the

court. Nonetheless, finding the proceeding was governed by N.C.G.S. §§ 15A-269 and

15A-270, the court heard evidence from the State regarding the Sorenson DNA

testing results. Specifically, the State introduced five forensic case reports from

Sorenson detailing the STR DNA and Y-STR DNA testing of the vaginal and rectal

swabs and smears collected from the victim during autopsy and their comparisons

with defendant’s bloodstain card and the new sample of defendant’s DNA.          The

reports established that the Y-STR DNA profile recently obtained from defendant and

the Y-STR DNA profile obtained from defendant’s bloodstain card matched the Y-

STR DNA profile obtained from the epithelial and sperm fractions of the vaginal

swabs and the sperm fraction of the rectal swabs collected from the victim’s body by

the medical examiner during the autopsy. Additionally, the reports indicated that

the sperm fraction of the vaginal swabs collected from the victim’s body by the

medical examiner during autopsy contained a mixture of STR DNA profiles from two

contributors, defendant being included as a possible contributor and the other

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                                   STATE V. LANE

                                  Opinion of the Court



contributor likely being the victim. Defendant did not object to the State’s motion to

introduce any of the case reports and stipulated to the written language on all the

reports. From this evidence (hereinafter Sorenson evidence), the trial court found

that the postconviction DNA testing results were “unfavorable” to defendant,

announcing its finding in open court; however, after the State drafted and submitted

a proposed written order to opposing counsel, defendant objected to entry of the order

based on his various challenges to the way evidence was handled and processed by

the SBI. The trial court never signed a written order containing the finding that the

postconviction DNA testing results were unfavorable to defendant.


      On 3 June 2015, defendant filed a new motion for postconviction DNA testing

of the hair samples found in the trash bag in which the victim’s body had been placed.

Defendant requested that these hair samples be submitted for independent DNA

testing, other forensic testing, or both. Defendant argued to the trial court that the

requested DNA testing is “unquestionably material” to his defense because

             [t]he hairs obtained from the plastic bag and duct tape
             wrapped around the victim was [sic] examined
             microscopically but not submitted for DNA analysis. Given
             Mr. Lane’s continued insistence that he is innocent, the
             identity of the perpetrator in this case remains at issue.
             The tests requested are likely to resolve this issue by
             identifying the perpetrator and/or confirming Mr. Lane’s
             claim of innocence . . . .

This time, the State opposed the motion, asking the trial court to deny the request or

hold a hearing to determine whether defendant could show the testing sought “is


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                                   Opinion of the Court



material to his defense.”

      The trial court heard defendant’s motion on 9 July 2015.        Defendant argued

the requested DNA testing was material for two reasons: (1) the evidence at trial

showed there were two separate crimes: “There was a rape, and there was a murder.

The [Sorenson DNA] evidence that has come back has implicated our client in the

rape . . . . We contend that these hairs could potentially relate to another perpetrator,

and potentially the only perpetrator of that murder”; and (2) at trial, the State’s

closing argument relied in part on the forensic analysis of fourteen head hairs

recovered from defendant’s residence that were found to be microscopically consistent

with P.W.’s head hairs: “If those head hairs that were found in that vacuum roll at

Mr. Lane’s house were material to the State . . . these hairs found on the body of the

victim are clearly material.”

      The trial court entered an order on 18 August 2015 denying defendant’s motion

for postconviction DNA testing of hair samples citing defendant’s failure “to show

that the requested postconviction DNA testing of hair samples is material to his

defense” in accordance with N.C.G.S. § 15A-269. In reaching its decision, the trial

court considered: (1) the court file, (2) the evidence presented at trial, (3) defendant’s

motion for postconviction DNA testing of hair samples and the State’s response to

that motion, (4) the arguments of counsel, (5) defendant’s prior motion for

postconviction DNA testing of the vaginal and rectal swabs and smears collected from

P.W.’s body during autopsy, and (6) the materials generated by Sorenson after


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                                   Opinion of the Court



conducting the court-ordered postconviction DNA testing of the vaginal and rectal

swabs and smears. In considering all of this information, the trial court specifically

stated it “does not find the existence of a reasonable probability that the verdict would

have been more favorable to Defendant Lane if the testing being requested in

Defendant Lane’s current motion had been conducted on the evidence.”


      On 28 August 2015, defendant filed a written notice of appeal pursuant to

N.C.G.S. § 15A-270.1. On appeal, defendant first argues it was error for the trial

court to consider the Sorenson evidence in its materiality analysis of defendant’s hair

sample testing request when there were contested factual issues regarding the

validity of the Sorenson evidence. Second, even if the first round of postconviction

DNA testing performed by Sorenson was determined to be valid and relevant, the

hair sample DNA testing is still material to his defense because the results could

implicate a second perpetrator in the crimes, specifically in the killing of the victim,

or confirm his claim of innocence. In his third argument, defendant requests that,

regardless of whether the testing is material to defendant’s defense, this Court should

use its constitutional supervisory authority or inherent authority to order the testing.


      Although the standard of review for denial of a motion for postconviction DNA

testing has not been expressly stated by this Court, we adopt, as the Court of Appeals

did in State v. Gardner, the analogous standard of review for a denial of a motion for

appropriate relief (MAR) because the trial court sits as finder of fact in both


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                                   Opinion of the Court



circumstances. See State v. Gardner, 227 N.C. App. 364, 365-66, 742 S.E.2d 352, 354

(2013), disc. rev. denied, 367 N.C. 252, 749 S.E.2d 860 (2013). In reviewing a denial

of a motion for postconviction DNA testing, “[f]indings of fact are binding on this

Court if they are supported by competent evidence and may not be disturbed absent

an abuse of discretion. The lower court’s conclusions of law are reviewed de novo.”

Id. at 365-66, 742 S.E.2d at 354, (italics added) (quoting State v. Patton, 224 N.C.

App. 399, 2012 WL 6590534, at *2 (2012) (unpublished) (citations omitted), petitions

for disc. rev. and cert. dismissed, 366 N.C. 565, 738 S.E.2d 375 (2013)). 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.


        As with proceedings for postconviction MARs, “the moving party has the

burden of proving by a preponderance of the evidence every fact essential to support”

the motion for postconviction DNA testing, which includes the facts necessary to

establish materiality. N.C.G.S. § 15A-1420(c)(5) (2017); accord State v. Turner, 239

N.C. App. 450, 453-54, 768 S.E.2d 356, 359 (2015) (quoting State v. Adcock, 310 N.C.

1, 37, 310 S.E.2d 587, 608 (1984)).


        Section 15A-269 of the North Carolina General Statutes states, in relevant

part:


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                                  Opinion of the Court



                    (a) A defendant may make a motion before the trial
             court that entered the judgment of conviction against the
             defendant for performance of DNA testing . . . if the
             biological evidence meets all of the following conditions:

                   (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.

                     (b) The court shall grant the motion for DNA testing
             . . . upon its determination that:

                   (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.G.S. § 15A-269 (2017) (emphases added).          The materiality standard that a

defendant must assert in his motion, and that the trial court must find, is contained

in subdivision 15A-269(b)(2):    “If the DNA testing being requested had been


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                                    Opinion of the Court



conducted on the evidence, there exists a reasonable probability that the verdict

would have been more favorable to the defendant.” This definition of “material” is

consistent with how that term has been defined in the context of claims based on

Brady v. Maryland, 373 U.S. 83, 10 L. Ed.2d 215 (1963).3 Given the similarities in

the Brady materiality standard and the standard contained in N.C.G.S. § 15A-

269(b)(2), it appears the General Assembly adopted the Brady standard to guide a

trial court in determining whether a defendant’s request for postconviction DNA

testing should be allowed. In such context, this Court has explained that “material”

means “there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” State v. Tirado, 358

N.C. 551, 589, 599 S.E.2d 515, 540 (2004) (quoting United States v. Bagley, 473 U.S.

667, 682, 87 L. Ed. 2d 481, 494 (1985), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285

(2005)). The determination of materiality must be made “in the context of the entire

record,” State v. Howard, 334 N.C. 602, 605, 433 S.E.2d 742, 744 (1993) (quoting

United States v. Agurs, 427 U.S. 97, 112, 49 L. Ed. 2d 342, 355 (1976)), and hinges

upon whether the evidence would have affected the jury’s deliberations. In the

context of a capital case, we must consider whether the evidence would have changed

the jury’s verdict in either the guilt or sentencing phases. See Brady, 373 U.S. at 87,




      3 In Brady, the United States Supreme Court held “the suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment.” 373 U.S. at 87, 10 L. Ed. 2d at 218.

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                                      Opinion of the Court



10 L. Ed. 2d at 218.

      In his first issue, defendant argues that the trial court erred in considering the

Sorenson results in the court’s materiality analysis of defendant’s request for DNA

testing of the hair samples because contested factual issues remained regarding the

validity of the Sorenson results. Defendant takes issue with the trial court’s finding

number twenty-two in its order denying his request for postconviction DNA testing

of the hair samples.         In this finding, the trial court listed the evidentiary

considerations which led it to conclude that defendant’s request for postconviction

DNA testing of the hair samples was not material to his defense. Specifically, the

court considered

               the evidence that was presented at trial, Defendant Lane’s
               current motion for post-conviction DNA testing of hair
               samples, the State’s response to that motion, the
               arguments of counsel, Defendant Lane’s prior motion for
               post-conviction DNA testing of the vaginal and rectal
               swabs and smears collected from the victim’s body by the
               medical examiner during autopsy which was granted by
               this Court, and the materials generated by Sorenson
               Forensics after conducting that court-ordered post-
               conviction DNA testing[.]

(Emphasis added.) The language in italics suggests the trial court relied in part on

the Sorenson results in making its determination that DNA testing of the hair

samples was not material to the defense. Because of his unresolved challenges to the

validity of the Sorenson results,4 defendant contends that there should have been



      4   Defendant contends the trial court did not resolve his objection to the trial court’s

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                                       Opinion of the Court



greater factual development on the issues regarding this evidence before it was

considered in the trial court’s materiality analysis with respect to the DNA testing of

hair samples.

       Notwithstanding defendant’s challenges to the validity of the Sorenson

evidence, the second issue is dispositive of this case. As discussed below, despite

defendant’s contentions that the requested testing is material to his defense, we

conclude that the additional overwhelming evidence of defendant’s guilt presented at

trial, the dearth of evidence at trial pointing to a second perpetrator, and the inability

of forensic testing to determine whether the hair samples at issue are relevant to

establish a third party was involved in these crimes together create an

insurmountable hurdle to the success of defendant’s materiality argument.5

       At trial, the State’s evidence showed that defendant, and defendant alone,

raped, sodomized, and murdered P.W.               Defendant’s confession, introduced into

evidence at trial, indicates defendant and P.W. were alone in defendant’s residence

when the crimes occurred. At no point did defendant mention a second perpetrator



draft order authored by the State. The trial court only rendered its decision orally during
the evidentiary hearing on 11 May 2015 and has not yet entered an order stating the
Sorenson evidence was unfavorable to defendant. On defendant’s motion, this Court stayed
further trial court proceedings while resolving the issue sub judice.
        5 We do not take a position on the validity of the Sorenson results from the first round

of postconviction DNA testing or comment on the arguments made by the parties as to the
trial court’s ability to consider those results of that testing in the materiality analysis before
us. We only conclude that, regardless of whether the Sorenson results are considered at all,
there is not a reasonable probability that even a “favorable” result in the second round of
testing would result in “a more favorable outcome for defendant” in a new trial.

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                                   Opinion of the Court



in his confession. Defendant also confessed that he wrapped P.W. in a plastic trash

bag that he got out of a trash can at his residence. The autopsy showed P.W. was

alive when she was raped and sodomized, and was alive when she was put into the

trash bag. The autopsy further showed the cause of P.W.’s death was asphyxiation

secondary to suffocation; thus, the murder weapon was the trash bag that defendant

confessed to both procuring and using. A Caucasian hair was found in P.W.’s anal

canal, and forensic testing revealed that defendant, or his maternal relatives, could

not be ruled out as the source of the hair.

      Additionally, the State’s forensic evidence revealed that the trash bag in which

P.W. was found was consistent with the size, composition, construction, texture, red

drawstrings, and reinforcement characteristics of the trash bags found in defendant’s

home. Fibers from a blue tarp and a roll of duct tape also found at defendant’s home

were consistent with the tarp and duct tape found near the location where P.W.’s

body was found. Fourteen hairs consistent with the victim’s head hairs were found

in defendant’s vacuum cleaner and carpet sample, confirming P.W. was in

defendant’s home, and these hairs exhibited signs of being cut, confirming P.W. was

subjected to some kind of force.

      The eyewitness testimony presented at trial is also consistent with defendant’s

confession that he, and he alone, moved P.W. to the creek and disposed of her body

there. Several eyewitnesses testified that between 7:15 and 7:45 p.m. on the evening

in question, they saw a man with a red scooter or moped equipped with a black basket,


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                                  Opinion of the Court



who was wearing a light or white helmet, struggling with a large bundle wrapped in

a blue tarp and with a child’s red and white bicycle, near the bridge under which

P.W.’s body was found. Three of those eyewitnesses indicated the man was white,

while the other two did not identify his race. The only inconsistency in the eyewitness

testimony that tended to support the argument that a second perpetrator may have

been involved came from a single eyewitness who was confronted on cross-

examination with the assertion that she initially told law enforcement that she saw

a “black man with dark arms.”        But the eyewitness testified that she did not

remember telling law enforcement the man she saw was African-American.

      At trial, the foregoing evidence was sufficient to convict and sentence

defendant even without the results of the first round of postconviction DNA testing,

because the evidence at trial showed no semen present in the victim’s vaginal and

anal swabs. Therefore, regardless of any consideration of the Sorenson evidence, the

trial evidence was ample to support a finding of defendant’s guilt and dictated the

trial court’s ultimate conclusion on materiality.

      Further, even if the hair samples in question were tested and found not to

belong to the victim or defendant, they would not necessarily implicate another

individual as a second perpetrator.     Defendant argues that if he and P.W. are

excluded as the source of the hair fragments, such a finding would result in a more

favorable outcome for defendant; however, defendant failed to show the hair samples

were placed in the trash bag at the time the crimes were committed. In addition to


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                                  Opinion of the Court



the hair samples, the trash bag covering the victim was filled with other creek debris

because the bag had holes in it and had been in the creek for almost two days. P.W.’s

body was found underneath a public roadway, in a location frequented by fishermen,

and was in the middle of a construction zone; thus, there was great potential for

contamination of the hole-ridden, weathered trash bag. Also, defendant cannot show

the hair samples were not already in the bag when the victim was placed inside it.

      Therefore, even if the samples were tested and produced a “favorable” result to

defendant, that is, they were found to belong to an individual other than P.W. or

defendant, it is not reasonably likely that such a finding would change the verdict for

defendant. “Where ample evidence, including eyewitness testimony and defendant’s

own admission to law enforcement, supported a finding of defendant’s guilt,

defendant’s motion for post-conviction DNA testing did not allege a ‘reasonable

probability that the verdict would have been more favorable to the defendant.’ ” State

v. Pegram, ___ N.C. App. ___, 808 S.E.2d 179, 2017 WL 6002819 at *1 (2017)

(unpublished) (brackets omitted). In this case, though there is no eyewitness account

of the crimes themselves other than defendant’s confession, a plethora of eyewitness

testimony corroborates defendant’s own account of how he disposed of P.W.’s body. A

great deal of physical evidence also ties items in defendant’s home to the location

where the victim’s body was found and links defendant to the crimes committed

against P.W. His confession is consistent with all of this evidence, and he never

implicated a second perpetrator. All the evidence in this case points to defendant—


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                                  Opinion of the Court



and defendant alone—as committing the crimes against the victim. In light of this

evidence, defendant has failed to convince this Court that DNA testing of the hair

samples is material regarding his convictions.

      As to defendant’s sentence, there is not a reasonable probability that the DNA

testing of the hair samples would have changed the jury’s recommendation of death.

Here, the jury found two aggravating circumstances regarding the murder of P.W.:

(1) defendant committed the murder while engaged in the commission of rape, first-

degree sexual offense, or kidnapping, N.C.G.S. § 15A-2000(e)(5) (2017), and (2) the

murder was especially heinous, atrocious, or cruel, id. § 15A-2000(e)(9) (2017).

According to the plain language of subdivision 15A-2000(e)(5), the jury could have

found this aggravating circumstance even if it believed defendant was merely an

accomplice in the crimes perpetrated against P.W. Even if the hair samples were

tested and the testing revealed they were from a third person, the jury would still be

permitted to consider this aggravating factor if it was convinced another individual

was involved in the crimes. Further, as already discussed, sufficient evidence—even

without considering the Sorenson evidence—shows defendant committed a sexual

offense against P.W. In addition to his confession, a Caucasian hair was discovered

in P.W.’s anal canal during the autopsy, and defendant and his maternal relatives

“could not be excluded” as the source.          As to the N.C.G.S. § 15A-2000(e)(9)

circumstance found by the jury, this murder, given the victim’s age and the evidence

detailing that she died by choking on her own vomit while wrapped in duct tape and


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                                  Opinion of the Court



a trash bag either immediately after or during the commission of a sexual assault,

could certainly be considered especially heinous, atrocious, or cruel even if there was

evidence that another person could have been involved.

      Therefore, no reasonable probability exists under the facts of this case that a

jury would fail to convict defendant or would not recommend the death penalty, even

if the jury were able to consider a potential third person’s hair samples that were

found in the damaged trash bag in which the victim’s body was placed. In fact,

defendant argued to the jury at trial that the presence of these hair samples in the

trash bag implicated someone other than him in the crimes, but, in light of the

remaining evidence, that argument appears to have had no effect on the jury’s verdict

or recommendation.

      In addressing defendant’s third issue, we also decline to use our inherent or

supervisory power to order the testing regardless of materiality.         During oral

arguments, the parties asserted that this case implicated the balance between the

thoroughness of reviewing a capital case and the finality of it. In reflecting on this

balance, the Supreme Court of the United States recognized the dangers inherent in

using postconviction DNA testing as an unfettered discovery tool:

             DNA testing alone does not always resolve a case. Where
             there is enough other incriminating evidence and an
             explanation for the DNA result, science alone cannot prove
             a prisoner innocent. The availability of technologies not
             available at trial cannot mean that every criminal
             conviction, or even every criminal conviction involving
             biological evidence, is suddenly in doubt. The dilemma is


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                                   Opinion of the Court



             how to harness DNA’s power to prove innocence without
             unnecessarily overthrowing the established system of
             criminal justice.

                    That task belongs primarily to the legislature.

Dist. Att’y’s Office v. Osborne, 557 U.S. 52, 62, 174 L. Ed. 2d 38, 47-48 (2009) (citation

omitted). In North Carolina, the General Assembly made a defendant’s statutory

right to postconviction DNA testing contingent upon several conditions precedent,

one of which is the trial court’s conclusion that the requested DNA testing is material

to the defense. N.C.G.S. § 15A-269(a) (2017), (b)(2). The policy behind the law is “to

assist federal, State, and local criminal justice and law enforcement agencies in the

identification, detection, or exclusion of individuals who are subjects of the

investigation or prosecution of felonies or violent crimes against the person,” id. §

15A-266.1 (2017); see State v. Doisey, 240 N.C. App. 441, 445, 770 S.E.2d 177, 180

(2015) (explaining that the law governing postconviction DNA testing’s “ultimate

focus is to help solve crimes through DNA testing”), rather than provide

postconviction capital defendants with an endless series of challenges.      In this case,

there is “enough other incriminating evidence” to convict and sentence defendant

regardless of the results of any hair analysis and as noted previously, the hair

analysis results could be irrelevant because, inter alia, the hairs could have already

been in the bag when defendant placed P.W. in it, or they could have made their way

into the bag while it was soaking in a creek, exposed to the elements for two days.

Ordering the testing when defendant has failed to show that a reasonable probability


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                                   Opinion of the Court



exists that the results of the requested testing would change the outcome of the case

would set a precedent for allowing criminal defendants to ceaselessly attack the

finality of criminal convictions without significantly assisting in the search for truth.

      Therefore, we affirm the trial court’s order denying defendant’s motion

requesting postconviction DNA testing of hair samples.

      AFFIRMED.




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