IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-202
Filed: 21 April 2020
Warren County, No. 92-CRS-1839-40
STATE OF NORTH CAROLINA
v.
KELVIN ALPHONSO ALEXANDER, Defendant.
Appeal by Defendant from order entered 1 October 2018 by Judge Henry W.
Hight, Jr., in Warren County Superior Court. Heard in the Court of Appeals 18
September 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
Uicker, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
Gomez and Nicholas C. Woomer-Deters, for the Defendant.
DILLON, Judge.
Defendant Kelvin Alphonso Alexander appeals an order denying his post-
conviction motion to test DNA evidence and fingerprints in relation to a murder he
pleaded guilty to almost three decades ago in 1993.
I. Background
Early one morning in September 1992, two men robbed a gas station in
Norlina. During the robbery, one of the men shot and killed the gas station attendant.
STATE V. ALEXANDER
Opinion of the Court
A witness told police that she saw the two men fleeing the scene and that one of the
men was Defendant, someone she had been acquainted with most of her life.
In October 1992, Defendant was indicted for first-degree murder and armed
robbery in connection with the incident. Defendant pleaded guilty to second-degree
murder, and the State dismissed the robbery charge as part of a plea deal.
In March 2016, Defendant filed a motion to test the DNA and fingerprints on
the shell casings/projectile found at the gas station after the killing. He alleged in
his motion that in 2004 an informant who was pleading guilty to an unrelated federal
crime told authorities that a Mr. Terry had admitted to him to the 1992 Norlina
murder/robbery shortly after it had occurred. Further, Defendant alleged that the
informant helped Mr. Terry retrieve the murder weapon from some woods near the
gas station. However, the record reflects that Mr. Terry testified at a hearing that
he was not involved in the incident, that he never confessed to the informant or
anyone else to the Norlina murder/robbery, and that he did not even know Defendant.
The trial court denied Defendant’s motion for post-conviction, DNA testing.
Defendant appealed.
II. Analysis
There are essentially two issues before us. First, may a defendant who has
pleaded guilty seek post-conviction DNA testing under N.C. Gen. Stat. § 15A-269
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Opinion of the Court
(2015)? Second, if so, has Defendant here met his burden of showing that the results
of such testing would be material to his defense?
A. Availability of Post-Conviction Testing Following a Guilty Plea
The State argues that, even if the results of any testing would prove material
to show Defendant’s innocence, Defendant is not entitled to seek testing under
Section 15A-269 because he pleaded guilty to the murder. Indeed, the Section states
that a defendant must show that testing would be “material to the defendant’s
defense,” N.C. Gen. Stat. § 15A-269(a)(1) (emphasis added), and that testing is
warranted only if “there exists a reasonable probability that the verdict would have
been more favorable to the defendant” had the requested DNA been tested earlier.
N.C. Gen. Stat. § 15A-269(b)(2) (emphasis added). The State argues in its brief that
“[t]he plain meaning of ‘defense’ and ‘verdict’ [in Section 15A-269] presupposes the
existence of a trial and a determination of guilt based on evidence presented to the
fact finder,” and that a defendant who pleads guilty has put up no defense and results
in a conviction without a verdict.
Based on controlling precedent, we conclude that Defendant is not disqualified
from seeking post-conviction DNA testing merely for having pleaded guilty.
Specifically, in June 2018, our Court held that a defendant was not automatically
barred from seeking post-conviction DNA testing merely because he entered a plea of
guilty. State v. Randall, 259 N.C. App. 885, 887, 817 S.E.2d 219, 221 (2018). In
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Opinion of the Court
reaching this conclusion, the Randall panel relied on language from an opinion by
our Supreme Court that “ ‘[i]f 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.’ ” Id. at 887, 817 S.E.2d at 220 (quoting State
v. Lane, 370 N.C. 508, 518, 809 S.E.2d 568, 575 (2018)). The Randall panel then
reasoned that there may be rare situations where there is a reasonable probability
that a defendant would not have pleaded guilty in the first instance and would have
not otherwise been convicted had he had the results of DNA testing when faced with
the charges. See id. at 887, 817 S.E.2d at 221.
For example, suppose that an innocent person is charged with a murder based
on the statements of several (mistaken) eyewitnesses. It may be that this innocent
defendant will plead guilty to second-degree murder rather than risk being found
guilty of first-degree murder and sentenced to death. However, suppose further that
certain DNA found at the scene conclusively belonged to the actual killer. In that
situation, there is a reasonable probability that the outcome would have been
different had the results of DNA testing been available to the innocent defendant
before he decided to plead guilty. There is a reasonable probability that he would
have pleaded not guilty and that the DNA would point to someone who merely looked
like him, leading to his acquittal or to the charges being dropped.
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Opinion of the Court
We recognize the argument that the word “verdict” appearing in Section 15A-
269 suggests that our General Assembly intended for post-conviction, DNA testing to
be available only where there has been an actual verdict rendered. And there is no
verdict in a matter where a defendant has pleaded guilty. But there is a strong
counter-argument that the General Assembly did not intend for the word “verdict” to
be construed in such a strict, legal sense. Rather, the General Assembly intended for
“verdict” to be construed more broadly, to mean “resolution,” “judgment” or “outcome”
in a particular matter. To read “verdict” in a strict, legal sense would lead to an
absurd result, clearly not intended by the General Assembly. That is, any defendant
who pleads “not guilty” but convicted by a judge after a bench trial would not be
eligible to seek post-conviction DNA testing if a strict interpretation of “verdict” is
applied: only juries (and not judges) render verdicts in a strict, legal sense.1
1 Our Supreme Court has defined “verdict” as “the unanimous decision made by the jury and
reported to the court.” State v. Hemphill, 273 N.C. 388, 389, 160 S.E.2d 53, 55 (1968) (emphasis added).
Our Rules of Civil Procedure describe the decisions of juries as “verdicts,” see N.C. Gen. Stat. § 1A-1,
Rule 49 (2015), and decisions by judges in bench trials as “findings” by the court. See N.C. Gen. Stat.
§ 1A-1, Rule 52. Black’s Law Dictionary recognizes that the technical definition of “verdict” is a
decision rendered by a jury, and not a judge:
The formal and unanimous decision or finding of a jury . . . . The word
“verdict” has a well-defined signification in law. It is the decision of
the jury, and it never means the decision of a court or a referee or a
commissioner [though] in common language, the word “verdict” is
sometimes used in a more extended sense, but in law it is always used
to mean the decision of a jury.
Verdict, Black’s Law Dictionary (7th ed. 1999).
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Opinion of the Court
We note that a few months after our Court decided Randall, our Supreme
Court in September 2018 affirmed, per curiam without any explanation, an
unpublished opinion of our Court in which we suggested that post-conviction DNA
testing was not available to defendants who had pleaded guilty. State v. Sayre, 255
N.C. App. 215, 803 S.E.2d 699, 2017 N.C. App. LEXIS 696 (2017) (unpublished), aff’d
per curiam, 371 N.C. 468, 818 S.E.2d 101 (2018).
Specifically, in that case, we held that a defendant was not entitled to post-
conviction DNA testing because (1) the defendant failed to show how testing would
be material to show that he was not the perpetrator and (2) “by entering into a plea
agreement with the State and pleading guilty, defendant presented no ‘defense’
pursuant to N.C. Gen. Stat. § 15A-269(a)(1).” Id. at *5. However, only the first issue
was before the Supreme Court on appeal, as that issue was the only basis for the
dissent from our Court, and the defendant did not seek review of the second issue.
See id. at *6 (Murphy, J., dissenting). Therefore, the Supreme Court’s per curiam
affirmance was only on this first issue, that the defendant failed to show that testing
would be material in that case.
B. Materiality
Section 15A-269 permits a defendant to obtain post-conviction DNA testing if
he meets his burden of showing that the results of such testing, among other things,
would be “material” to his defense. N.C. Gen. Stat. § 15A-269.
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Opinion of the Court
Our Supreme Court has held that “[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.” State v. Lane, 370 N.C. 508, 517-18, 809 S.E.2d 568, 574 (2018).
Further, whether evidence is “material” to a defendant’s defense is determined
by whether “there exists a reasonable probability that the verdict would have been
more favorable to the defendant.” Id. at 519, 809 S.E.2d at 575. It is the defendant’s
burden, though, to show such materiality is present. Id. at 518, 809 S.E.2d at 574.
Here, Defendant contends that the requested DNA and fingerprint testing is
material because the evidence “would exculpate [Defendant] by corroborating [the
informant’s] testimony” about Mr. Terry’s involvement in the murder/robbery. We
note, however, there was substantial evidence of Defendant’s guilt, including (1) the
eyewitness who saw Defendant fleeing the scene; (2) Defendant’s admission that he
was at the scene during the investigation of the crime; and (3) Defendant’s admission,
through his guilty plea, that he, in fact, committed the crime.
We conclude that Defendant has failed to show how it is reasonably probable
that he would not been convicted of at least second-degree murder based on the
results of the DNA and fingerprint testing. That is, the presence of another’s DNA
or fingerprints on this or other evidence would not necessarily exclude Defendant’s
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Opinion of the Court
involvement in the crime. The presence of another’s DNA or fingerprints could be
explained by the possibility that someone else handled the casings/projectile prior to
the crime or that the DNA or fingerprints are from Defendant’s accomplice, as there
were two involved in the murder. Our jurisprudence sets a high bar to establish
materiality in such cases, especially for those who have pleaded guilty. See State v.
Tilghman, ___ N.C. App. ___, ___, 821 S.E.2d 253, 256 (2018) (stating that “a guilty
plea increases a defendant’s burden to show materiality”). Thus, we conclude that
Defendant has failed to meet his burden of showing materiality.2
III. Conclusion
Defendant has failed to demonstrate that the evidence he seeks to have tested
is material to his defense. As such, we affirm the trial court’s denial of his motion.
AFFIRMED.
Judge BROOK concurs.
Judge BERGER concurs by separate opinion.
2 We note the State’s argument that the issue regarding the testing of the fingerprints is not
before us on appeal, contending that the trial court only ruled on the DNA evidence, and not the
fingerprint evidence. However, the record shows that in his motion, Defendant sought testing for both
and that in its order, the trial court denied Defendant’s motion, without any limiting language.
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No. COA19-202 – State v. Alexander
BERGER, Judge, concurring in separate opinion.
I concur only in the result reached by the majority. I write separately because
a defendant who pleads guilty is not entitled to post-conviction DNA testing. See
State v. Sayre, No. COA17-68, 2017 WL 3480951 (N.C. Ct. App. Aug 15, 2017), aff’d
per curiam, 371 N.C. 468, 818 S.E.2d 101 (2018).
On November 16, 1993, Defendant pleaded guilty to second degree murder.
Defendant signed a standard Transcript of Plea, in which he acknowledged that he
was “in fact guilty” of murdering Carl Eugene Boyd. Following a colloquy with the
trial court, Defendant’s plea was accepted upon findings that there was a factual basis
for Defendant’s plea of guilty and that the plea was entered freely, voluntarily, and
understandingly by Defendant.
A defendant may make a motion for post-conviction DNA testing if the
biological evidence
(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.
STATE V. ALEXANDER
Berger, J., concurring in separate opinion
N.C. Gen. Stat. § 15A-269(a) (2019). A trial court shall grant a defendant’s motion
for post-conviction DNA testing if
(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(b).
A defendant who has pleaded guilty cannot establish that post-conviction DNA
testing would be material to his defense as required by N.C. Gen. Stat. § 15A-
269(a)(1). This Court has previously determined that “by entering into a plea
agreement with the State and pleading guilty, defendant presented no ‘defense’
pursuant to N.C. Gen. Stat. § 15A-269(a)(1).” Sayre, 2017 WL 3480951, at *2.
The majority contends that our Supreme Court affirmed only that portion of
Sayre addressing appointment of counsel. According to the majority, the affirmance
by our Supreme Court did not address the issue of guilty pleas under Section 15A-
269, and, therefore, is not binding on this Court.
It is correct that review by our Supreme Court is generally limited to the issue
or issues “specifically set out in the dissenting opinion as the basis for that dissent.”
N.C. R. App. 16(b) (2019). In Sayre, Judge Murphy states that he dissents from the
majority opinion because the defendant’s allegations of materiality under Section
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STATE V. ALEXANDER
Berger, J., concurring in separate opinion
15A-269 entitled him to appointment of counsel. However, Judge Murphy’s dissent
correctly addresses the materiality standard under subsection (a)(1). The dissent
discusses State v. Cox, 245 N.C. App. 307, 781 S.E.2d 865 (2016), in which the
defendant argued the trial court erred in denying him counsel pursuant to Section
15A-269(c).
The defendant in Cox sought post-conviction DNA testing following his plea of
guilty to statutory rape. This Court held that a showing of materiality under
subsection (a)(1) was “a condition precedent to the trial court’s authority to grant his
motion and appoint him counsel.” Cox, at 312, 781 S.E.2d at 868.
Further, this Court has stated,
[W]e reject [d]efendant’s contention that the threshold
materiality requirement for the appointment of counsel for
purposes of N.C. Gen. Stat. § 15A-269(c) is less demanding
than that required for actually ordering DNA testing
pursuant to N.C. Gen. Stat. § 15A-269(a)(1) and hold that,
in order to support the appointment of counsel pursuant to
N.C. Gen. Stat. § 15A-269(c), a convicted criminal
defendant must make an allegation addressing the
materiality issue that would, if accepted, satisfy N.C. Gen.
Stat. § 15A-269(a)(1).
State v. Gardner, 227 N.C. App. 364, 368, 742 S.E.2d 352, 355 (2013) (citation and
quotation marks omitted).
Even though Judge Murphy indicated he was dissenting on the issue of
appointment of counsel, his reasoning and the law on materiality under subsection
(a)(1) are so intertwined that the per curiam opinion from our Supreme Court in Sayre
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Berger, J., concurring in separate opinion
can only be read as affirming the entire majority opinion from this Court.3 See
Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 761, 758 S.E.2d
169, 177-78 (2014) (citation and quotation marks omitted) (“Per curiam decisions
stand upon the same footing as those in which fuller citations of authorities are made
and more extended opinions are written.”).
Our Supreme Court has stated that a defendant’s plea of guilty is a “formal
confession[] of guilt.” State v. Caldwell, 269 N.C. 521, 524, 153 S.E.2d 34, 36 (1967).
See also State v. Elliott, 269 N.C. 683, 685, 153 S.E.2d 330, 332 (1967) (“Defendant’s
plea of guilty in open court is [a] confession[.]”). Further,
“[a] valid guilty plea . . . serves as an admission of all the
facts alleged in the indictment or other criminal process.”
State v. Thompson, 314 N.C. 618, 623-24, 336 S.E.2d 78, 81
(1985) (citations omitted). A guilty plea is “[a]n express
confession” by a defendant who “directly, and in the face of
the court, admits the truth of the accusation.” State v.
Branner, 149 N.C. 559, 561, 63 S.E. 169, 170 (1908).
State v. Chandler, ___ N.C. App. ___, ___, 827 S.E.2d 113, 116 (2019). In addition, it
is well settled that a plea of guilty “leaves open for review only the sufficiency of the
indictment and waives all defenses other than that the indictment charges no
3 This case illustrates at least one of the reasons why per curiam decisions can be problematic.
Judges and practitioners benefit from certainty and clearly developed jurisprudence. The issue in this
case could have been settled with a full opinion from our Supreme Court in Sayre. However, our case
law has developed around Randall. Courts have likely invested unnecessary time, energy, and
resources handling motions for post-conviction DNA testing where defendants entered guilty pleas.
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STATE V. ALEXANDER
Berger, J., concurring in separate opinion
offense.” State v. Smith, 279 N.C. 505, 506, 183 S.E.2d 649, 650 (1971) (citation and
quotation marks omitted).
Defendant here did not enter an Alford plea. Therefore, his plea of guilty
served as a confession to the murder of Carl Eugene Boyd and an admission to the
truthfulness of all of the facts surrounding his involvement. Accordingly, Defendant
waived all defenses available to him, and he cannot show materiality under Section
15A-269(a)(1).
The majority relies on State v. Randall, 259 N.C. App. 885, 817 S.E.2d 219
(2018) in determining that a defendant who pleads guilty may seek post-conviction
DNA testing pursuant to N.C. Gen. Stat. § 15A-269. However, as set forth above,
Sayre should be viewed as controlling in this case. “The Court of Appeals has no
authority to overrule decisions of the Supreme Court and has the responsibility to
follow those decisions until otherwise ordered by the Supreme Court,” thus this
Court’s decision should be controlled by Sayre. Dunn v. Pate, 334 N.C. 115, 118, 431
S.E.2d 178, 180 (1993) (purgandum).
In addition, the majority misses the mark on its discussion of the term
“verdict” in N.C. Gen. Stat. § 15A-269(b). The majority defines “verdict” and even
quotes case law from our Supreme Court telling us what that term means. But, the
majority, without any citation or attribution, simply declares that “the General
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Berger, J., concurring in separate opinion
Assembly intended for ‘verdict’ to be construed more broadly, to mean ‘resolution,’
‘judgment,’ or ‘outcome’ in a particular matter.”
“When the language of a statute is plain and free from ambiguity, expressing
a single, definite and sensible meaning, that meaning is conclusively presumed to be
the meaning which the Legislature intended, and the statute must be interpreted
accordingly.” Dep’t of Transp. v. Adams Outdoor Advert. of Charlotte Ltd. P’ship, 370
N.C. 101, 107, 804 S.E.2d 486, 492 (2017) (citation and quotation marks omitted).
Legislative intent “may be found first from the plain language of the statute . . . . If
the language of a statute is clear, the court must implement the statute according to
the plain meaning of its terms so long as it is reasonable to do so.” Midrex Techs.,
Inc. v. N.C. Dep’t of Revenue, 369 N.C. 250, 258, 794 S.E.2d 785, 792 (2016) (citation
and quotation marks omitted). “The intent of the legislature . . . is to be found not in
what the legislature meant to say, but in the meaning of what it did say.” Burnham
v. Adm’r, Unemployment Comp. Act, 184 Conn. 317, 325, 439 A.2d 1008, 1012 (1981).
The majority finds no ambiguity in the term “verdict;” it simply laments the
plain meaning of the statute.
If the plain language of Section 15A-269 is not clear enough, the General
Assembly has established what a verdict is. N.C. Gen. Stat. § 15A-1237, titled
“Verdict,” states that:
(a) The verdict must be in writing, signed by the
foreman, and made a part of the record of the case.
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STATE V. ALEXANDER
Berger, J., concurring in separate opinion
(b) The verdict must be unanimous, and must be
returned by the jury in open court.
(c) If the jurors find the defendant not guilty on the
ground that he was insane at the time of the commission of
the offense charged, their verdict must so state.
(d) If there are two or more defendants, the jury must
return a separate verdict with respect to each defendant. If
the jury agrees upon a verdict for one defendant but not
another, it must return that verdict upon which it agrees.
(e) If there are two or more offenses for which the jury
could return a verdict, it may return a verdict with respect
to any offense, including a lesser included offense on which
the judge charged, as to which it agrees.
N.C. Gen. Stat. § 15A-1237 (2019).
Accordingly, for there to be “a reasonable probability that the verdict would
have been more favorable to the defendant,” under Section 15A-269, there must have
been a verdict returned by a jury. N.C. Gen. Stat. § 15A-269(b)(2) (emphasis added).
Use of the term “verdict” obviously has a “single, definite and sensible meaning.”
Adams Outdoor Advert. of Charlotte Ltd. P’ship, 370 N.C. at 107, 804 S.E.2d at 492.
The majority should be faithful to the plain language of the statute, and not rewrite
it with its own definition.
Also, the requirement of an affidavit of innocence in Section 15A-269(b)(3) is
inconsistent with a defendant’s plea of guilty. Defendants provide sworn answers to
the questions on their transcript of plea. A defendant who, under oath, admits guilt
to a charged offense, cannot thereafter provide a truthful affidavit of innocence.
Allowing sham affidavits makes a mockery of the procedure established by the
General Assembly.
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STATE V. ALEXANDER
Berger, J., concurring in separate opinion
Defendant here swore under oath that he was in fact guilty of murdering and
robbing Carl Eugene Boyd in September 1992. Twenty-three years later he signed a
document and swore that he was innocent. It cannot be both. This demonstrates just
another reason why a defendant cannot plead guilty and later be entitled to post-
conviction DNA testing pursuant to the plain language of N.C. Gen. Stat. § 15A-269.
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