An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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S.E.2d 96 (2005) (unpublished).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
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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
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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).”).
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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
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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).