An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.



                               NO. COA13-1165
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Johnston County
                                              No. 02 CRS 52867
TARVARIS NOVACK MICKENS



      Appeal by defendant from order entered 31 May 2013 by Judge

Gale Adams in Johnston County Superior Court.                      Heard in the

Court of Appeals 31 March 2014.


      Roy Cooper, Attorney General, by Anne                       M.   Middleton,
      Assistant Attorney General, for the State.

      Peter Wood for defendant-appellant.


      DAVIS, Judge.


      Defendant     Tarvaris     Novack     Mickens     (“Defendant”)      appeals

from the denial of his motion for post-conviction DNA testing.

After careful review, we affirm the trial court’s order denying

his motion.

                              Factual Background

      On 19 December 2003, Defendant was convicted by a jury of

first-degree murder, and the trial court sentenced Defendant to
                                  -2-
life imprisonment without parole.       Defendant appealed, and this

Court found no error.   State v. Mickens, 171 N.C. App. 364, 615

S.E.2d 96 (2005) (unpublished).

    On 23 November 2010, Defendant filed a pro se motion for

post-conviction DNA testing pursuant to N.C. Gen. Stat. § 15A-

269, requesting DNA testing of four items, including several

shell casings and “fired projectiles,” which were not previously

subjected to testing.   On 21 February 2013, Defendant filed an

amended motion following the appointment of counsel.       The trial

court conducted a hearing on the motion on 3 May 2013.        In an

order entered 31 May 2013, the trial court denied Defendant’s

motion based upon its findings that (1) “DNA testing of the

requested items is not material to the defendant’s defense”; and

(2) “there does not exist a reasonable probability that the

verdict in the defendant’s case would have been more favorable

to the defendant if the DNA testing being requested had been

conducted on the evidence.”    From this order, Defendant appealed

to this Court.

                              Analysis

    Counsel appointed to represent Defendant has been unable to

identify any issue with sufficient merit to support a meaningful

argument for relief on appeal and asks that this Court conduct
                                 -3-
its own review of the record for possible prejudicial error.

Counsel has also shown to the satisfaction of this Court that he

has complied with the requirements of Anders v. California, 386

U.S. 738, 18 L.Ed.2d 493 (1967), and State v. Kinch, 314 N.C.

99, 331 S.E.2d 665 (1985), by advising Defendant of his right to

file written arguments with this Court and providing him with

the documents necessary for him to do so.

    N.C. Gen. Stat. § 15A-269 provides in pertinent part:

         (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
                                         -4-
           testing and, if testing complies with FBI
           requirements,   the   run   of  any   profiles
           obtained   from   the    testing,   upon   its
           determination:

           (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(a)-(b) (2013).

      Our Court has recently explained that biological 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.”        State v. Hewson, ___ N.C. App. ___, ___, 725

S.E.2d 53, 56 (2012) (citation and quotation marks omitted).

The   burden   is    on   the   defendant      to   show   that   the   biological

evidence requested is material to his defense.                      See State v.

Foster, ___ N.C. App. ___, ___, 729 S.E.2d 116, 120 (2012) (“The

burden is on defendant to make the materiality showing required

in N.C. Gen. Stat. § 15A-269(a)(1).”).
                                      -5-
       Here, the trial court determined that “based upon [the]

witness testimony at trial and the defendant’s admissions made

under oath at trial,” (1) Defendant could not establish that the

DNA testing of the requested items was material to his defense;

and (2) there was no reasonable probability that the verdict in

Defendant’s case would be more favorable if the DNA testing

being requested had been conducted.                The record evidence that

(1) Defendant testified at trial and admitted to firing the shot

that killed the victim; (2) two witnesses testified to observing

the    altercation    between    Defendant       and   the    victim   and    then

hearing     the   gunshots;     and   (3)    a     third     witness   testified

regarding    a    telephone   conversation        where    Defendant   told    the

witness that he had just killed the victim, supports the trial

court’s determination that the DNA testing requested would not

be material to Defendant’s defense.

       We agree with the trial court that in light of the evidence

in this case — particularly Defendant’s admission that he “in

fact fired the shot that killed [the victim]” — Defendant cannot

show that testing the shell casings and projectiles for DNA

evidence could reasonably alter the outcome of the proceeding.

The trial court’s determination that Defendant had failed to

show    materiality     supports      its        ultimate     conclusion      that
                                       -6-
Defendant’s      motion    for   post-conviction       DNA    testing   must    be

denied.     See State v. Gardner, ___ N.C. App. ___, ___, 742

S.E.2d    352,   356    (holding     that   showing    of    materiality   is   “a

condition precedent to a trial court’s statutory authority to

grant a motion for postconviction DNA testing” (citation and

quotation marks omitted)), disc. review denied, ___ N.C. ___,

749 S.E.2d 860 (2013).

    Defendant has not filed any written arguments on his own

behalf with this Court and a reasonable time in which he could

have done so has passed.             In accordance with Anders, we have

fully examined the record to determine whether any issues of

arguable merit appear therein.              We have examined the record for

possible prejudicial error and found none.

                                   Conclusion

    For the reasons set out above, we affirm the trial court’s

order     denying      Defendant’s     motion    for    post-conviction         DNA

testing.

    AFFIRMED.

    Judges McGEE and ELMORE concur.

    Report per Rule 30(e).
