                                 NO. COA13-693

                      NORTH CAROLINA COURT OF APPEALS

                            Filed: 21 January 2014


STATE OF NORTH CAROLINA

     v.                                     Guilford County
                                            Nos. 08 CRS 86532–33, 35–36,
                                            39; 87623
LUCIUS ELWOOD MCLEAN



     Appeal by defendant from judgments entered 21 August 2012 by

Judge William Z. Wood, Jr. in Guilford County Superior Court.

Heard in the Court of Appeals 6 November 2013.


     Attorney General Roy Cooper, by Assistant Attorney General
     Ward Zimmerman, for the State.

     Appellate Defender Staples S. Hughes, by Assistant Appellate
     Defender Andrew DeSimone, for defendant-appellant.


     HUNTER, JR., Robert N., Judge.


     Following final judgments as to the charges against him,

Lucius    Elwood   McLean   (“Defendant”)    appeals   a   pre-trial   order

entered 4 March 2010 by Judge Ronald E. Spivey in Guilford County

Superior Court.     The challenged order denied Defendant’s pre-trial

motion for DNA testing pursuant to N.C. Gen. Stat. § 15A-267(c)

(2013).    Defendant contends that the trial court erred as a matter

of law in denying his motion because the absence of his DNA on
                                     -2-
shell casings found at the scene, if established, would have been

relevant to the State’s investigation and material to his defense.

For the following reasons, we find no error and affirm the trial

court’s order.

                  I.     Factual & Procedural History

       On 20 August 2012, Defendant was convicted on two counts of

attempted first-degree murder, two counts of assault with a deadly

weapon with the intent to kill inflicting serious injury, one count

of discharging a firearm into an occupied building, and one count

of possession of a firearm after having been convicted of a felony.1

The evidence presented at trial tended to show the following.

       On 16 April 2008, Defendant agreed to rent commercial property

located at 2801 Patterson Avenue in Greensboro from Stuart Elium

(“Mr. Elium”).    Defendant indicated that he needed the property to

open an arcade.        Defendant gave Mr. Elium a down payment and

entered the space.      Mr. Elium testified that Defendant arrived at

their meeting in a “bronzish Jaguar.”

       Immediately     next   door   to    Defendant’s   property   was     an

established night club operated by Reginald Green (“Mr. Green”)

called “Club Touch.”      Mr. Green also rented from Mr. Elium.           Club

Touch generally operated between 10 p.m. and 2 a.m. and served



1   Defendant stipulated to a prior felony conviction at trial.
                                 -3-
liquor.     Derry George (“Mr. George”) was the club’s manager.

Robert Willis (“Mr. Willis”) and Mark Stephens (“Mr. Stephens”)

worked security.

     On 17 April 2008, Mr. George arrived for work between 7 and

8 p.m. and noticed a group of men sitting outside the club next to

Defendant’s property.    When Mr. George went inside Club Touch, he

noticed that a break-in had occurred and that equipment had been

stolen.    Mr. George called the police, who investigated the break-

in and questioned the men sitting outside Defendant’s property.

The men told the police that they were waiting on someone to come

let them into Defendant’s building.

     An hour or so later, Defendant arrived on the scene and spoke

to Mr. George about the incident.        Mr. George testified that

Defendant’s men were upset about being questioned in connection to

the break-in, so Mr. George wanted to let Defendant know that there

were no hard feelings.     Defendant was cordial to Mr. George and

the two talked about Defendant’s plan for opening a business next

door.     Defendant told Mr. George that he wanted to open a “2 to

6”—meaning that Defendant’s establishment would be open from 2

a.m. to 6 a.m. and be a place where Club Touch’s patrons could go

after the club closes.       After their conversation, Mr. George

telephoned Mr. Green to inform him of Defendant’s plans and
                                 -4-
expressed concern that Defendant’s proposed business might affect

Club Touch’s liquor license.

     At around 10 p.m. that same night, Defendant and his men

placed balloons and a sign outside their building that read “The

Party is Here” and played music loudly from their establishment.

Mr. George indicated that Defendant arrived that evening in a

“gold-colored” Jaguar.     Mr. George and Mr. Willis testified that

as the night was coming to an end, Defendant and his men approached

Club Touch and yelled, “We’re hood around here” and “It’s hood out

here. Going to be real.”

     The next morning, Mr. Green called Mr. Elium to discuss what

had happened.   Thereafter, Mr. Elium informed Defendant that their

rental arrangement was not going to work out.    Mr. Elium returned

Defendant’s money, reclaimed the keys to the property, and assisted

Defendant in vacating the premises.

     On 20 April 2008, at approximately 2:45 a.m., multiple cars

arrived at Club Touch, circled around the back of the club, and

pulled up to the entrance.     Among the cars was Defendant’s gold

Jaguar. Mr. George, Mr. Willis, and Mr. Stephens were all standing

at the front door.

     Mr. George, Mr. Willis, and Mr. Stephens testified that

Defendant emerged from the gold Jaguar and asked for the owner of
                                 -5-
the club.    During a heated exchange, Defendant stated, “It’s real”

and “If I can’t have my club open, y’all can’t have y’all’s open.”

Mr. Willis testified that upon hearing these words, he laughed at

Defendant.    Thereafter, Defendant stated, “Man, it’s real out here

. . . you think I’m playing.”     Defendant then popped his trunk,

retrieved a long black SKS rifle, and said, “Oh, you’re not

scared.”     Defendant then cocked the gun and stated, “Oh, you’re

really not going to run.”   At that point, Mr. George and Mr. Willis

retreated into the Club for cover, and Mr. Stephens retreated to

his pickup truck in the parking lot.

     Thereafter, multiple shots were fired into the club from

outside the entryway.    Mr. George was shot in the hand and in the

side of his body.     Mr. Willis was shot in the leg.   Another man

from Defendant’s entourage opened fire on the club with a handgun.

After opening fire on the club, Defendant and his entourage fled

the scene.

     Police arrived on the scene around 3:15 a.m. and began their

investigation.    Six 7.62 caliber shell casings consistent with an

SKS rifle and twelve .45 caliber shell casings were recovered from

the crime scene.     The guns were never found.    In the days that

followed, Mr. George, Mr. Willis, and Mr. Stephens all identified
                                     -6-
Defendant as the shooter in a photo array with near certainty.

They testified to the same in open court.

     On 24 April 2008, police stopped Defendant’s sister in the

gold Jaguar and seized the vehicle.            During an inventory of the

vehicle,    police   recovered   a    live     7.62   caliber   bullet   from

underneath the passenger seat.        No identifiable fingerprints were

found on the bullet.       After processing the vehicle, the police

called Defendant’s sister to retrieve it.               However, Defendant’s

sister failed to pick the vehicle up and it was released to a local

auto dealer.

     On 10 July 2008, police received information that Defendant

had been spotted at a local apartment complex.               Acting on this

information, the police were able to locate and stop Defendant,

who was driving the same gold Jaguar.2          Thereafter, Defendant was

arrested and taken into custody.

     Prior   to   trial,   Deputy    Sheriff    James    Swaringen   (“Deputy

Swaringen”) was transporting Defendant from the courthouse to the

jail when he overheard a conversation Defendant had with another

prisoner.    Deputy Swaringen testified that Defendant stated, “I

can’t believe they have me over here for this.             I shot the guy in



2 It is unclear from the record how or when Defendant reacquired
the same gold Jaguar after it was released by the police to a local
auto dealer.
                               -7-
the calf and there wasn’t even an exit wound and they’ve had me

sitting up here for 35 months for this?   They’re just trying to

see if I crack being up here so long.”

    On 20 January 2010, Defendant moved the trial court pursuant

to N.C. Gen. Stat. § 15A-267(c) for pre-trial DNA testing of the

shell casings recovered from the crime scene.      Specifically,

Defendant’s written motion indicated that he wanted “to test the

shell casings to see if there is any DNA material on the shell

casings that may be compared to the Defendant.”       Defendant’s

written motion requested DNA testing on the following grounds:

         1. The Defendant is charged with attempted 1st
            Degree Murder in that it is alleged on or
            about April 20th in the early morning hours
            that the Defendant fired shots into a club
            in   Greensboro  injuring   three   people.
            Numerous shell casings were found from the
            weapon discharged outside the club on April
            20, 2008.

         2. The Defendant intends to plead not guilty
            and contends that he did not discharge a
            firearm.

         3. The Defendant would like to test the shell
            casings to see if there is any DNA material
            on the shell casings that may be compared
            to the Defendant.

At the motion hearing, counsel for Defendant argued as follows:

         It’s my understanding that the State has these
         shell casings in their custody. We’ve talked
         about a plea bargain in this case. There’s
         not going to be a plea bargain in this case.
                                            -8-
              My client says he’s not guilty of this
              offense. In order to pursue all efforts to
              show that he’s not guilty, I’d like to have
              the opportunity to test these shell casings.
              There may or may not be DNA on the shell
              casings, but we won’t know until we test them;
              until we try.     So we’d like to have the
              opportunity to test those shell casings to see
              if there’s any DNA evidence on there and have
              it compared to [Defendant’s]. So that’s what—
              I think that’s a reasonable request, Your
              Honor.

      Defendant also moved the trial court to order other discovery

including fingerprint testing on the shell casings at issue.                           At

the   motion    hearing,      counsel       for    Defendant    indicated      that    no

fingerprint testing had been performed on the shell casings to

date.

      By   order      dated   4     March    2010,     the     trial   court     denied

Defendant’s motion for pre-trial DNA testing.                    In the same order,

the   trial    court    ordered     that     the    shell    casings      at   issue   be

subjected to fingerprint testing “to determine what fingerprint

evidence, if any, was present and whether or not any fingerprint

evidence      found    on   those    shell    casings       match   the    Defendant’s

prints.”      No fingerprints were found.

      Thereafter, Defendant was tried and convicted on all counts

and sentenced to two consecutive terms of 251 to 311 months in

prison for the attempted first-degree murder convictions and to
                                 -9-
concurrent sentences for the remaining convictions.       Defendant

gave timely notice of appeal in open court.

                         II.   Jurisdiction

     Defendant’s post-judgment appeal of the trial court’s order

denying Defendant’s motion for DNA testing lies of right to this

court pursuant to N.C. Gen. Stat. §§ 7A-27(b), 15A-1444(a) (2013).

See also N.C. Gen. Stat. § 15A-270.1 (2013).

                            III. Analysis

     The only question presented to this Court by Defendant’s

appeal is whether the trial court erred in its application of N.C.

Gen. Stat. § 15A-267(c).    Defendant contends that pursuant to the

cited statute, the trial court was required to order pre-trial DNA

testing on shell casings found at the crime scene.    We disagree.

     “Alleged statutory errors are questions of law, and as such,

are reviewed de novo.”     State v. Mackey, 209 N.C. App. 116, 120,

708 S.E.2d 719, 721 (2011) (internal citation omitted).     “‘Under

a de novo review, the court considers the matter anew and freely

substitutes its own judgment’ for that of the lower tribunal.”

State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)

(quoting In re Greens of Pine Glen, Ltd. P’ship, 356 N.C. 642,

647, 576 S.E.2d 316, 319 (2003)).

     N.C. Gen. Stat. § 15A-267(c) provides:
                                     -10-
           Upon a defendant’s motion made before trial in
           accordance with [N.C. Gen. Stat. §] 15A-952,
           the court shall order the Crime Laboratory or
           any   approved   vendor   that   meets   Crime
           Laboratory contracting standards to perform
           DNA testing . . . upon a showing of all of the
           following:

           (1)       That the biological material is relevant
                     to the investigation.

           (2)       That the biological material was not
                     previously DNA tested or that more
                     accurate testing procedures are now
                     available that were not available at the
                     time of previous testing and there is a
                     reasonable possibility that the result
                     would have been different.

           (3)       That the testing is        material   to   the
                     defendant’s defense.

See also N.C. Gen. Stat. § 15A-269(a) (2013) (outlining similar

requirements     for    a    post-conviction    motion    for   DNA   testing).

Accordingly, by the plain language of this statute, the burden is

on Defendant to make the required showing under subsections (1),

(2), and (3) before the trial court.           Absent the required showing,

the trial court is not statutorily obligated to order pre-trial

DNA testing.      Cf. State v. Foster, ___ N.C. App. ___, ___, 729

S.E.2d   116,    120    (2012)   (describing     the   required     showing   of

materiality     in     the   post-conviction    context    as   a     “condition

precedent to a trial court’s statutory authority to grant a motion

under [N.C. Gen. Stat.] § 15A-269”).
                                  -11-
     Here, Defendant failed to establish the required showing

under N.C. Gen. Stat. § 15A-267(c)(1) and (3) in his written motion

and before the trial court at the motion hearing.3         Defendant’s

written motion stated in cursory fashion that “Defendant intends

to plead not guilty and contends that he did not discharge a

firearm” and that “Defendant would like to test the shell casings

to see if there is any DNA material on the shell casings that may

be compared to Defendant.”   At the motion hearing, defense counsel

added: “[i]n order to pursue all efforts to show that he’s not

guilty . . . we’d like to have the opportunity to test those shell

casings to see if there’s any DNA evidence on there and to have it

compared   to   [Defendant’s].”    Thus,   before   the   trial   court,

Defendant failed to sufficiently demonstrate how the absence of

his DNA on the shell casings would be either relevant to the

investigation or material to his defense at trial.

     Before this Court, Defendant contends that the presence of

biological material on the shell casings at issue would have been

relevant to the investigation because “such biological material

would tend to identify the actual perpetrator.”     Defendant further

contends that the absence of his DNA on the shell casings, if



3 The State conceded at the hearing that the shell casings had not
been previously tested for DNA, thereby satisfying the showing
required by N.C. Gen. Stat. § 15A-267(c)(2).
                              -12-
established, would be material to his defense because such a

showing would tend to identify someone else as the shooter and

corroborate his alibi defense.4   We address each in turn.

     “‘Relevant evidence’ means evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.”    N.C. R. Evid. 401.    The State

does not challenge Defendant’s relevancy argument, and we find it

sufficiently persuasive to satisfy the required showing under N.C.

Gen. Stat. § 15A-267(c)(1).   The presence of DNA evidence on a

spent shell casing has some tendency to identify the person who

fired the bullet.

     However, while we agree that the presence of DNA evidence on

the shell casings at issue would be relevant to the investigation,

we disagree that the absence of Defendant’s DNA on the shell

casings would be material to Defendant’s alibi defense in this

case.

     As used in N.C. Gen. Stat. § 15A-269(a)(1), our Court has

adopted the Brady definition of materiality.   See State v. Hewson,




4 At trial Defendant testified that he was in Maryland attending
his cousin’s grandmother’s funeral at the time of the shooting.
Defendant could provide no additional witnesses or evidence
corroborating his alibi.
                                    -13-
___ N.C. App. ___, ___, 725 S.E.2d 53, 56 (2012) (stating that

evidence is “material” for purposes of N.C. Gen. Stat. § 15A-

269(a)(1)   if   “there   is   a   ‘reasonable   probability’   that   its

disclosure to the defense would result in a different outcome in

the jury’s deliberation” (quotation marks and citations omitted)).

While such a standard is appropriate when evaluating motions made

in the post-trial context pursuant to N.C. Gen. Stat. § 15A-269,

we find that such a standard is inappropriate when evaluating pre-

trial motions made pursuant to N.C. Gen. Stat. § 15A-267(c).

Whether a particular piece of DNA evidence would have influenced

the outcome of a trial can only be determined after the trial is

completed and the judge has had an opportunity to compare that DNA

evidence against the cumulative evidence presented at trial.5

Accordingly, for purposes of applying N.C. Gen. Stat. § 15A-

267(c)(3), we resort to the plain meaning of “material” and hold

that biological evidence is material to a defendant’s defense where




5 Although Defendant waited until after he was convicted to appeal
in the instant case, our General Assembly has provided a right to
appeal pre-trial orders denying motions for DNA testing on an
interlocutory basis. See N.C. Gen. Stat. § 15A-270.1 (2013) (“The
defendant may appeal an order denying the defendant’s motion for
DNA testing under this Article, including by an interlocutory
appeal.”).   In such situations, it would be difficult if not
impossible for this Court to determine whether disclosure of a DNA
test result would have a reasonable probability of changing a
jury’s verdict.
                                -14-
such biological evidence has “some logical connection” to that

defense and is “significant” or “essential” to that defense.

Black’s Law Dictionary 998 (8th ed. 2004).

     Here, we hold that the absence of Defendant’s DNA on the shell

casings at issue would not be material to his alibi defense.      At

the outset, we note that a showing of materiality under N.C. Gen.

Stat. § 15A-267(c)(3) carries a higher burden than a showing of

relevancy under N.C. Gen. Stat. § 15A-267(c)(1).      Thus, while the

presence of DNA evidence may have relevance to an investigation,

it does not follow that such evidence is necessarily material to

a defendant’s defense at trial.

     Defendant contends that the absence of his DNA and a positive

showing of someone else’s DNA on the shell casings would be

material to his alibi defense because it would have “tended to

show that someone other than [Defendant] fired the SKS assault

rifle[.]”6   However, the absence of Defendant’s DNA from the shell

casings would only provide evidence of his absence from the scene

if one would otherwise expect to find his DNA on the shell casings




6  Defendant’s contention assumes      the presence    of biological
material on the shell casings—a        premise that    has not been
established in this case.
                                            -15-
in such a situation.7         Even then, such evidence would only justify

the inference that Defendant was absent—it would not provide

“essential” or “significant” evidence corroborating Defendant’s

alibi.     Accordingly, we hold that the absence of Defendant’s DNA

on the shell casings at issue, if established, would not have a

logical connection or be significant to Defendant’s defense that

he was in Maryland at the time of the shooting.

     Furthermore,        we    note    like    its    counterpart    in    the   post-

conviction    setting,        N.C.    Gen.    Stat.    §   15A-267(c)     outlines     a

procedure    for   the    DNA    testing       of    “biological    material,”       not

evidence in general.          Cf. State v. Brown, 170 N.C. App. 601, 609,

613 S.E.2d 284, 288–89 (2005) (“[N.C. Gen. Stat. § 15A-269(a)]

provides for testing of ‘biological evidence’ and not evidence in

general.      Since   defendant        desires       to    demonstrate    a   lack    of

biological evidence, the post-conviction DNA testing statute does

not apply.” (internal citation omitted)), superseded by statute on

other grounds as stated in State v. Norman, 202 N.C. App. 329,

332–33,    688   S.E.2d       512,    515    (2010).       Here,   the    purpose    of

Defendant’s request for DNA testing is to demonstrate the absence

of his DNA on the shell casings at issue.                   By its plain language,




7 Such an expectation is undermined by the fact that shooting a
gun does not require one to load or handle bullets.
                                     -16-
N.C.   Gen.   Stat.   §   15A-267(c)    contemplates   DNA   testing   for

ascertained biological material—it is not intended to establish

the absence of DNA evidence.        It is unknown in this case if there

is any biological material that may be tested on the shell casings.

Indeed, at the motion hearing, defense counsel stated “[t]here may

or may not be DNA on the shell casings, but we won’t know until we

test them; until we try.”          Thus, to the extent that Defendant’s

motion sought to establish a lack of DNA evidence on the shell

casings, we hold that such a motion is not proper under N.C. Gen.

Stat. § 15A-267(c).

                             IV.    Conclusion

       For the foregoing reasons, we affirm the order of the trial

court denying Defendant’s motion under N.C. Gen. Stat. § 15A-

267(c) for pre-trial DNA testing.

       Affirmed.

       Judges ROBERT C. HUNTER and CALABRIA concur.
