{ "id": 9006275, "name": "STATE OF NORTH CAROLINA v. BILLY RAY BROWN, Defendant", "name_abbreviation": "State v. Brown", "decision_date": "2005-06-07", "docket_number": "No. COA04-316", "first_page": "601", "last_page": "609", "citations": [ { "type": "official", "cite": "170 N.C. App. 601" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "238 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "143" } ], "opinion_index": 0 }, { "cite": "293 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563846 ], "year": 1977, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0276-01" ] }, { "cite": "359 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "320 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728334 ], "year": 1987, "pin_cites": [ { "page": "601-02" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0596-01" ] }, { "cite": "573 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511334, 1511565, 1511597, 1511471, 1511486 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0442-01", "/nc/356/0442-02", "/nc/356/0442-05", "/nc/356/0442-04", "/nc/356/0442-03" ] }, { "cite": "568 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "872" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248676 ], "pin_cites": [ { "page": "76-77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0069-01" ] }, { "cite": "302 U.S. 211", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6138603 ], "weight": 4, "year": 1937, "pin_cites": [ { "page": "212", "parenthetical": "\"Final judgment in a criminal case means sentence. The sentence is the judgment.\"" }, { "page": "204", "parenthetical": "\"Final judgment in a criminal case means sentence. The sentence is the judgment.\"" }, { "page": "165", "parenthetical": "\"Final judgment in a criminal case means sentence. The sentence is the judgment.\"" } ], "opinion_index": 0, "case_paths": [ "/us/302/0211-01" ] }, { "cite": "605 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 582", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412436 ], "year": 2004, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0582-01" ] }, { "cite": "466 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "342 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795966 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0638-01" ] }, { "cite": "456 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "876" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920889 ], "year": 1995, "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0724-01" ] }, { "cite": "2001 N.C. Sess. Laws 282", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "weight": 3, "pin_cites": [ { "parenthetical": "hereinafter \"the Act\"" } ], "opinion_index": 0 }, { "cite": "595 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 784", "category": "reporters:state", "reporter": "N.C. App.", "year": 2004, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 840, "char_count": 20854, "ocr_confidence": 0.758, "pagerank": { "raw": 3.4796788975895706e-07, "percentile": 0.8816689698897503 }, "sha256": "6c0e20d21c6a0ff464a9eba210ef2fc1444831d81d88df6452b1f5b2886cb203", "simhash": "1:ab6b9178762f6595", "word_count": 3452 }, "last_updated": "2023-07-14T16:44:47.676310+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BILLY RAY BROWN, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Billy Ray Brown appeals from the trial court\u2019s denial of his motion for post-conviction DNA testing under N.C. Gen. Stat. \u00a7 15A-269 (2003). The State has argued that the appeal must be dismissed because the statute does not provide for appellate review and because review by writ of certiorari is unavailable. We agree and, accordingly, dismiss defendant\u2019s appeal.\nFacts and Procedural History\nOn 26 September 2000, defendant, a former assistant principal at a middle school, was indicted for attempted second degree rape of a former student, R.T. Defendant was convicted on that charge on 15 November 2001, and Judge Thomas D. Haigwood sentenced him to a presumptive sentence of 58 months to 79 months imprisonment. Defendant did not timely notice appeal, but on 24 April 2002, defendant filed a petition for writ of certiorari in this Court, seeking a belated appeal based upon ineffective assistance of counsel. This Court allowed the belated appeal and subsequently upheld defendant\u2019s conviction and sentence. State v. Brown, 163 N.C. App. 784, 595 S.E.2d 238 (2004) (unpublished). A full account of the facts are set forth in that opinion.\nThe facts pertinent to this appeal are as follows. On 11 September 2000, R.T. was at home with her two-year old son. At approximately 2:30 p.m., defendant knocked at R.T.\u2019s door. After defendant entered R.T.\u2019s home, he asked to use her bathroom. When he returned from the bathroom, he made various sexually-related remarks and rubbed his penis through his shorts in front of R.T., causing R.T. to ask defendant to leave. Defendant then asked to use the bathroom a second time, and R.T. attempted to call her father while defendant was in the bathroom. Defendant, however, knocked the phone out of her hand and pushed her against a kitchen bar with his body. He attempted to kiss R.T., ripped her t-shirt open, fondled her breasts, and then threw her to the floor. He struck R.T. in the face, unfastened her jeans, and pulled out his penis. R.T. testified that she never actually saw his penis, but she felt it pressing against her stomach. When R.T. kicked defendant between his legs, defendant got up, banged his head against a lamp, and ran out of the apartment while pulling his shorts up.\nDefendant admitted at trial that he had been in R.T.\u2019s house, but testified that they had simply had a conversation. He denied engaging in any of the sexual conduct to which R.T. testified. Specifically, defendant denied ever trying to kiss R.T., ripping her shirt, touching her breasts, throwing her to the ground, unfastening her pants, or rubbing and exposing his penis to her.\nOn 15 November 2001 \u2014 the same day that the jury found defendant guilty of attempted second degree rape \u2014 Judge Haigwood signed an \u201cOrder for Disposition of Physical Evidence.\u201d In the order, the court directed that certain items of evidence \u2014 an orange t-shirt and a pair of black jeans \u2014 should be returned to R.T. or disposed of in accordance with the law. On 26 December 2001, after defendant had failed to appeal his conviction, the shirt and jeans were turned over to Velvet Blizzard of the Washington Police Department.\nOn 23 April 2002 \u2014 a day prior to filing his petition for writ of cer-tiorari \u2014 defendant filed a pro se motion seeking DNA testing pursuant to N.C. Gen. Stat. \u00a7 15A-269. Defendant requested that the court order DNA testing of (1) a tom blouse, (2) a pair of pants, (3) \u201c[l]adies undergarment,\u201d (4) nail clippings and hair samples, and (5) any other similar evidence from the crime that might be unknown to defendant. Despite defendant\u2019s motion and unbeknownst to defendant, the t-shirt and jeans were destroyed by the police on 13 August 2002 after R.T. indicated that she did not want them returned.\nCounsel was appointed on 13 September 2002 to represent defendant in connection with his motion for post-conviction DNA testing. That motion was heard before Judge W. Russell Duke, Jr. on 4 September 2003. At the hearing, defendant and his counsel learned for the first time that R.T.\u2019s t-shirt and jeans had already been destroyed. During the hearing, Detective Steve Waters of the Washington Police Department testified that he had inspected the clothing at issue on the night of the incident and had found no evidence of any kind of bodily fluid transfer. He, therefore, did not order any DNA testing prior to the trial of defendant. Additionally, Waters testified that he never obtained any undergarments from R.T. or any nail clippings or hair samples.\nOn 17 December 2003, the trial court denied defendant\u2019s motion for post-conviction DNA testing. In its order, the court found that Detective Waters, who was experienced in handling biological evidence, had examined the victim herself and the clothing she wore during the assault and did not observe any stains or other indication that bodily fluids had been transferred. The court also found that no nail or skin scrapings were collected from either the defendant or the victim because Detective Waters did not observe any scratches or skin irritations. Finally, the court found that the undergarments were never removed from the victim during the commission of the crime. Based upon these findings, the trial court determined that there was \u201cno evidence that any biological evidence was transferred from the Defendant to the victim or the crime scene\u201d and \u201cno evidence that any biological evidence exists from which DNA testing could be conducted.\u201d The court concluded that the destruction of the t-shirt and jeans by the Washington Police Department was not done in bad faith and did not prejudice the defendant because there was no evidence that showed biological evidence existed on the clothing.\nOn 22 December 2003, defendant filed a notice of appeal from the trial court\u2019s order. In its appellee brief, the State argued that defendant does not have a right to appeal the trial court\u2019s denial of his motion for DNA testing. On 4 January 2005, defendant filed an \u201cAlternative Application to Treat Appeal as a Petition for Writ of Certiorari.\u201d\nDiscussion\nA. The Right to Post-Conviction DNA Testing\nIn 2001, the General Assembly enacted \u201cAn Act to Assist an Innocent Person Charged With or Wrongly Convicted of a Criminal Offense in Establishing the Person\u2019s Innocence.\u201d 2001 N.C. Sess. Laws 282 (hereinafter \u201cthe Act\u201d). Under this Act, a criminal defendant, as of 13 July 2001, has a right of access before trial to (1) any DNA analyses performed in connection with his case and (2) \u201c[a]ny biological material, that has not been DNA tested, that was collected from the crime scene, the defendant\u2019s residence or the defendant\u2019s property.\u201d N.C. Gen. Stat. \u00a7 15A-267(a) (2003). Additionally, effective 1 October 2001, \u201ca governmental entity that collects evidence containing DNA in the course of a criminal investigation shall preserve a sample of the evidence collected for the period of time a defendant convicted of a felony is incarcerated in connection with that case.\u201d N.C. Gen. Stat. \u00a7 15A-268(a) (2003). The sample may be disposed of earlier only upon fulfillment of certain conditions, including notification of the defendant and defendant\u2019s counsel. N.C. Gen. Stat. \u00a7 15A-268(b).\nAlso effective 1 October 2001, following conviction, a defendant \u201cmay make a motion before the trial court that entered the judgment of conviction against the defendant for performance of DNA testing of any biological evidence . . . .\u201d N.C. Gen. Stat. \u00a7 15A-269(a). In order to obtain \u201cDNA testing of any biological evidence,\u201d the defendant must show that the evidence (1) is material, (2) is related to the investigation or prosecution, and (3) was not previously DNA tested or, if it was tested, current DNA testing would provide results that are significantly more accurate or would have a reasonable probability of contradicting prior test results. Id. The trial court shall grant a motion for post-conviction DNA testing (1) when the conditions set forth in N.C. Gen. Stat. \u00a7 15A-269(a) are met and (2) \u201cthere exists a reasonable probability that the verdict would have been more favorable to the defendant\u201d if the DNA testing being requested had been conducted. N.C. Gen. Stat. \u00a7 15A-269(b).\nIf a motion for post-conviction DNA testing under N.C. Gen. Stat. \u00a7 15A-269 is allowed, the court shall, upon receiving the results of the testing, \u201cconduct a hearihg to evaluate the results and to determine if the results are unfavorable or favorable to the defendant.\u201d N.C. Gen. Stat. \u00a7 15A-270(a) (2003). If the results are not favorable, then the court shall dismiss the motion. N.C. Gen. Stat. \u00a7 15A-270(b). If, however, the results are favorable, then the court shall enter an order that \u201cserves the interests of justice\u201d and may (1) vacate and set aside the judgment, (2) discharge the defendant, (3) resentence the defendant, or (4) grant a new trial. N.C. Gen. Stat. \u00a7 15A-270(c).\nB. The Right to Appeal\nIn its brief, the State argues that there is no right to appeal the denial of a motion for post-conviction DNA testing. \u201cThe right to appeal in a criminal proceeding is purely statutory.\u201d State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876 (1995), aff'd per curiam on other grounds, 342 N.C. 638, 466 S.E.2d 277 (1996). Further, Rule 4(a) of the Rules of Appellate Procedure provides that the appellate courts have jurisdiction over an appeal by \u201c[a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action . . . .\u201d N.C.R. App. P. 4(a) (emphasis added). The first question is, therefore, whether any statute authorizes an appeal of the denial of defendant\u2019s motion for post-conviction DNA testing.\nThere is no language in N.C. Gen. Stat. \u00a7 15A-269 or \u00a7 15A-270 that allows an appeal as of right from a grant or denial of a motion for post-conviction DNA testing. Indeed, there is no language addressing appellate review at all. In 2001, the General Assembly simply did not address the issue of appellate review in the Act and has not amended the legislation since to provide review.\nNor do any other statutes governing criminal proceedings provide a right to appeal in cases such as this one. Generally, the right to appeal in criminal cases is set out in N.C. Gen. Stat. \u00a7 15A-1444 (2003). Under that statute, a defendant who pleads not guilty at trial may appeal the judgment itself as a matter of right. N.C. Gen. Stat. \u00a7 15A-1444(a). In addition, a defendant who was found guilty or who pled guilty or no contest has the right to appeal the following issues:\n(1) whether the sentence is supported by the evidence (if the minimum term of imprisonment does not fall within the presumptive range); (2) whether the sentence results from an incorrect finding of the defendant\u2019s prior record level under N.C. Gen.Stat. \u00a7 15A-1340.14 or the defendant\u2019s prior conviction level under N.C. Gen.Stat. \u00a7 15A-1340.21; (3) whether the sentence constitutes a type of sentence not authorized by N.C. Gen. Stat. \u00a7 15A-1340.17 or \u00a7 15A-1340.23 for the defendant\u2019s class of offense and prior record or conviction level; (4) whether the trial court improperly denied the defendant\u2019s motion to suppress; and (5) whether the trial court improperly denied the defendant\u2019s motion to withdraw his guilty plea.\nState v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004). In addition, N.C. Gen. Stat. \u00a7 15A-1432(d) (2003) allows a defendant, under certain circumstances, to appeal on an interlocutory basis a superior court\u2019s order reinstating criminal charges after a district court dismissal. Defendant\u2019s appeal does not fall within any of these categories of appeal.\nDefendant does not point to any other statute specifically authorizing appeal from the order below, but argues that his appeal is permissible under N.C. Gen. Stat. \u00a7 7A-27(b) (2003). N.C. Gen. Stat. \u00a7 7A-27(b) allows an appeal \u201c[f]rom any final judgment of a superior court.\u201d A denial of a motion for post-conviction DNA testing does not, however, constitute a \u201cfinal judgment\u201d as defined in criminal proceedings. Under N.C. Gen. Stat. \u00a7 15A-101(4a) (2003), judgment is defined as \u201cwhen sentence is pronounced.\u201d See also Berman v. United States, 302 U.S. 211, 212, 82 L. Ed. 204, 204, 58 S. Ct. 164, 165 (1937) (\u201cFinal judgment in a criminal case means sentence. The sentence is the judgment.\u201d). The order below does not involve the pronouncement of a sentence.\nAccordingly, there is no statutory right of appeal to this Court from a grant or denial of a motion for post-conviction DNA testing. We, therefore, turn to consideration of defendant\u2019s alternative petition for writ of certiorari.\nC. Petition for Writ of Certiorari\nIn support of his petition for writ of certiorari, defendant first argues that motions for post-conviction DNA testing should be treated as motions for appropriate relief, which would allow us to review the trial court\u2019s order pursuant to N.C. Gen. Stat. \u00a7 15A-1422(c)(3) (2003). That statute provides that review of an order denying a motion for appropriate relief is by writ of certiorari \u201c[i]f the time for appeal has expired and no appeal is pending ....\u201d Id.\nDefendant\u2019s motion for post-conviction DNA testing cannot, however, be deemed a motion for appropriate relief. N.C. Gen. Stat. .\u00a7 15A-1415(b) (2003) sets forth \u201cthe only grounds which the defendant may assert by a motion for appropriate relief made more than 10 days after entry of judgment.\u201d In addition, N.C. Gen. Stat. \u00a7 15A-1415(c) provides that \u201ca defendant at any time after verdict may by a motion for appropriate relief, raise the ground that evidence is available which was unknown or unavailable to the defendant at the time of trial, which could not with due diligence have been discovered or made available at that time . . . .\u201d Defendant acknowledges that his motion does not involve any of the grounds specified in N.C. Gen. Stat. \u00a7 15A-1415(b) or (c). It cannot, therefore, be considered a motion for appropriate relief.\nReview is also not available under Rule 21 of the North Carolina Rules of Appellate Procedure:\n[T]his Court is limited to issuing a writ of certiorari \u201cin appropriate circumstances ... to permit review of the judgments and orders of trial tribunals when [1] the right to prosecute an appeal has been lost by failure to take timely action, or [2] when no right of appeal from an interlocutory order exists, or [3] for review pursuant to G.S. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.\u201d\nState v. Pimental, 153 N.C. App. 69, 76-77, 568 S.E.2d 867, 872 (quoting N.C.R. App. P. 21(a)(1)), disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). In addition, under State v. Bolinger, 320 N.C. 596, 601-02, 359 S.E.2d 459, 462 (1987), a defendant may petition for writ of certiorari when challenging the procedures followed in accepting a guilty plea. State v. Niccum, 293 N.C. 276, 278, 238 S.E.2d 141, 143 (1977) also permits a petition for writ of certiorari upon denial of a petition for writ of habeas corpus.\nIn this case, seeking review of the DNA testing order, defendant did not lose the right to appeal by failing to take timely action; he does not challenge any guilty plea procedures; and his motion is not a petition for writ of habeas corpus. We have, however, held that the trial court\u2019s order did not constitute a \u201cfinal judgment\u201d in a criminal proceeding, thereby raising the question whether it can be considered an interlocutory order. An interlocutory order is defined as \u201cone made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). A motion for post-conviction DNA testing cannot be considered an interlocutory order because it is not made during the pendency of a criminal proceeding. The conviction has already been entered and there is no further action for the court to take. Accordingly, we have no authority to allow defendant\u2019s petition for writ of certiorari.\nD. Rule 2 of Appellate Procedure\nThe State suggests that this Court may use Rule 2 of the North Carolina Rules of Appellate Procedure to suspend the requirements of Rule 21. Rule 2 states:\nTo prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.\nN.C.R. App. P. 2.\nWe decline to exercise our discretion under Rule 2 because defendant has failed to demonstrate that review is necessary in order to prevent manifest injustice. First, defendant is arguing that testing the clothing would show a lack of DNA evidence, thereby corroborating his testimony. The statute, however, provides for testing of \u201cbiological evidence\u201d and not evidence in general. N.C. Gen. Stat. \u00a7 15A-269(a). Since defendant desires to demonstrate a lack of biological evidence, the post-conviction DNA testing statute does not apply. Moreover, this case involves an attempted rape charge. Given the evidence offered at trial, the absence of DNA evidence would not necessarily exonerate defendant. This is not a case in which DNA testing would point to another perpetrator. Rather, DNA testing would only show that there was no bodily fluid transfer, a fact that would not exonerate defendant.\nSecond, defendant argues that sanctions should be imposed for the Washington Police Department\u2019s failure to preserve the evidence for testing. Without a showing that the clothing contained biological material or DNA, the requirement to preserve a sample of the evidence under N.C. Gen. Stat. \u00a7 15A-268 is not implicated. Moreover, as defendant admits, the legislation fails to provide a remedy for the improper destruction of relevant biological material. Defendant, however, asks this Court to devise a remedy for improperly destroyed biological evidence. We decline to do so \u2014 that is a task for the General Assembly and not the Court of Appeals.\nBecause we conclude that review is not necessary to prevent manifest injustice, we decline to exercise our power under Rule 2 to suspend the requirements of Rule 21 and allow defendant\u2019s petition for writ of certiorari. Accordingly, we have no choice but to dismiss defendant\u2019s appeal.\nConclusion\nThe General Assembly may wish to address the absence of any provision for appellate review of decisions under N.C. Gen. Stat. \u00a7\u00a7 15A-269 and -270. Although the title of the Act \u2014 \u201cAn Act to Assist an Innocent Person Charged With or Wrongly Convicted of a Criminal Offense in Establishing the Person\u2019s Innocence\u201d \u2014 indicates an intent to ensure that innocent defendants have the means to exonerate themselves, the lack of any appellate review, whether by appeal or certiorari, may undermine that goal. Until the General Assembly indicates otherwise, defendants are limited to reliance upon Rule 2.\nDismissed.\nChief Judge MARTIN and Judge CALABRIA concur.\n. This provision applies to evidence, records, and samples in the government\u2019s possession on or after the effective date of 1 October 2001. 2001 N.C. Sess. Laws 282, s. 6.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General William P. Hart, for the State.", "McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BILLY RAY BROWN, Defendant\nNo. COA04-316\n(Filed 7 June 2005)\n1. Appeal and Error\u2014 denial of post-conviction DNA testing \u2014 no statutory right of appeal\nThere is no statutory right to appeal from a grant or denial of a motion for post-conviction DNA testing.\n2. Appeal and Error\u2014 denial of post-conviction DNA testing \u2014 writ of certiorari\nThe Court of Appeals had no authority to allow defendant\u2019s petition for a writ of certiorari from the denial of post-conviction DNA testing. These motions cannot be treated as motions for appropriate relief, which would allow review by certiorari, because they do not involve the grounds specified by N.C.G.S. \u00a7 15A-1415(b). Review under Rule 21 of the Rules of Appellate Procedure is also not available.\n3. Appeal and Error\u2014 denial of post-conviction DNA testing \u2014 appellate review to prevent manifest injustice\u2014 denied\nReview of the denial of defendant\u2019s motion for post-conviction DNA testing under Appellate Rule 2 was declined because it was not necessary to prevent manifest injustice, and the Court of Appeals declined to exercise its discretion.\nAppeal by defendant from order entered 17 December 2003 by Judge W. Russell Duke, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 10 January 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General William P. Hart, for the State.\nMcCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, for defendant-appellant." }, "file_name": "0601-01", "first_page_order": 631, "last_page_order": 639 }