{ "id": 8239255, "name": "STATE OF NORTH CAROLINA v. ANTONIO RAMILLE RYALS", "name_abbreviation": "State v. Ryals", "decision_date": "2006-10-17", "docket_number": "No. COA05-1479", "first_page": "733", "last_page": "743", "citations": [ { "type": "official", "cite": "179 N.C. App. 733" } ], "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": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "year": 1963, "opinion_index": -1, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "104 L. Ed. 2d 1009", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "490 U.S. 1101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605985, 605858, 606052, 605061, 605286, 605446, 604937, 604876, 605069, 605139, 605716, 605395, 605075, 604980, 605430, 605241 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/1101-03", "/us/490/1101-05", "/us/490/1101-08", "/us/490/1101-12", "/us/490/1101-15", "/us/490/1101-14", "/us/490/1101-11", "/us/490/1101-13", "/us/490/1101-01", "/us/490/1101-09", "/us/490/1101-02", "/us/490/1101-10", "/us/490/1101-04", "/us/490/1101-07", "/us/490/1101-06", "/us/490/1101-16" ] }, { "cite": "374 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "255" } ], "opinion_index": 0 }, { "cite": "323 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565899 ], "year": 1988, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0508-01" ] }, { "cite": "340 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1986, "pin_cites": [ { "page": "741" }, { "page": "741" }, { "page": "741" }, { "page": "742" } ], "opinion_index": 0 }, { "cite": "316 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697175 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "9" }, { "page": "10-11" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0001-01" ] }, { "cite": "611 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "822", "parenthetical": "\"[C]onstitu-tional error will not be considered for the first time on appeal.\"" }, { "page": "822", "parenthetical": "\"[C]onstitutional error will not be considered for the first time on appeal.\"" } ], "opinion_index": 0 }, { "cite": "359 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799490 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "366", "parenthetical": "\"[C]onstitu-tional error will not be considered for the first time on appeal.\"" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0328-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "392 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "617" } ], "opinion_index": 0 }, { "cite": "326 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306539 ], "year": 1990, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0662-01" ] }, { "cite": "441 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "310-11", "parenthetical": "quoting State v. King, 326 N.C. 662, 674, 392 S.E.2d 609, 617 (1990)" } ], "opinion_index": 0 }, { "cite": "335 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530091 ], "year": 1994, "pin_cites": [ { "page": "749", "parenthetical": "quoting State v. King, 326 N.C. 662, 674, 392 S.E.2d 609, 617 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0741-01" ] }, { "cite": "468 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915232 ], "year": 1996, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0025-01" ] }, { "cite": "121 L. Ed. 2d 241", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "506 U.S. 915", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12001440, 12001636, 12000837, 12000708, 12000970, 12001711, 12001073, 12001394, 12001300, 12001559, 12000604, 12001500, 12001183 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/506/0915-09", "/us/506/0915-12", "/us/506/0915-03", "/us/506/0915-02", "/us/506/0915-04", "/us/506/0915-13", "/us/506/0915-05", "/us/506/0915-08", "/us/506/0915-07", "/us/506/0915-11", "/us/506/0915-01", "/us/506/0915-10", "/us/506/0915-06" ] }, { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1991, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "109 L. 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Ed. 2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "495 U.S. 951", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 633957, 634149, 634118, 634316, 633725, 633774, 633934, 633904, 633712, 633906, 633977, 633785, 633821, 634110 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/495/0951-02", "/us/495/0951-04", "/us/495/0951-09", "/us/495/0951-03", "/us/495/0951-14", "/us/495/0951-11", "/us/495/0951-13", "/us/495/0951-10", "/us/495/0951-15", "/us/495/0951-08", "/us/495/0951-07", "/us/495/0951-06", "/us/495/0951-12", "/us/495/0951-05" ] }, { "cite": "386 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "575" }, { "page": "577" } ], "opinion_index": 0 }, { "cite": "325 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489106 ], "year": 1989, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0550-01" ] }, { "cite": "407 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "812" }, { "page": "812" }, { "page": "812" } ], "opinion_index": 0 }, { "cite": "329 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556521 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "721" }, { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0709-01" ] }, { "cite": "578 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 685", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511339, 1511472, 1511603, 1511415, 1511259 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0685-02", "/nc/356/0685-04", "/nc/356/0685-01", "/nc/356/0685-03", "/nc/356/0685-05" ] }, { "cite": "571 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248677 ], "year": 2002, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0001-01" ] }, { "cite": "540 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155875, 1155604, 1155893, 1155862, 1155645 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0111-01", "/nc/351/0111-04", "/nc/351/0111-03", "/nc/351/0111-05", "/nc/351/0111-02" ] }, { "cite": "515 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "133 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220522 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/133/0531-01" ] }, { "cite": "473 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205331 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "682" }, { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/us/473/0667-01" ] }, { "cite": "578 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511297, 1511266, 1511621, 1511437, 1511312 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0688-05", "/nc/356/0688-02", "/nc/356/0688-03", "/nc/356/0688-01", "/nc/356/0688-04" ] }, { "cite": "574 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "147" }, { "page": "146-47" }, { "page": "147" } ], "opinion_index": 0 }, { "cite": "155 N.C. 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ANTONIO RAMILLE RYALS" ], "opinions": [ { "text": "McGEE, Judge.\nAntonio Ramille Ryals (Defendant) was convicted of second-degree murder of Larry Holland (Holland). The trial court sentenced Defendant to a term of 250 months to 309 months in prison. Defendant appeals.\nPrior to trial, Defendant moved for a nontestimonial identification order. Defendant sought to collect a DNA sample from Anthony Winstead (Winstead). Defendant claimed Winstead had motive to commit the assault, admitted being present at the scene, and \u201ccould have committed the crime.\u201d Defendant wanted to compare a DNA sample from Winstead to a DNA sample from a knit cap recovered from the scene. The trial court denied Defendant\u2019s motion.\nAt trial, the State\u2019s evidence tended to show the following. Kaye Lee (Lee) testified she was with Defendant, Winstead, and two other individuals outside the Liberty Square Apartments located on Liberty Street in Durham on 14 February 2003. Lee testified that Defendant was agitated and had been kicking the dumpsters outside the apartment building. She stated that Holland walked by the group and that Winstead accused Holland of owing him twenty dollars. Winstead then told Defendant to \u201c[t]ake care of that-1 got ya.\u201d Lee testified that Defendant beat Holland repeatedly with his fists, kicked him and stomped on him. Lee testified that she walked to a nearby store and that when she returned, Defendant was still beating Holland.\nWinstead testified that he and Defendant were sitting in front of the Liberty Square Apartments on 14 February 2003 when Holland approached them and asked if they had any \u201cstuff, meaning drugs.\u201d Winstead testified he told Holland they did not have any drugs, and told Holland to leave. Winstead stated that Holland then stepped toward Defendant and got \u201call in [Defendant\u2019s] face.\u201d Winstead testified that Defendant then hit Holland, and when Winstead tried to break up the altercation, Defendant swung at Winstead. Winstead said he saw Defendant hit Holland and kick Holland once. Winstead also testified that Holland always wore a blue knit cap and that Holland was wearing one on 14 February 2003.\nWinstead was asked during cross-examination if he would provide a DNA sample. The State objected and moved to strike. The trial court heard arguments outside the presence of the jury, sustained the objection, and allowed the State\u2019s motion to strike.\nMark Bradford, a crime scene technician with the Durham Police Department, testified that among the items recovered from the scene was a black knit cap, a blood-stained shirt, two teeth and a set of keys.\nOfficer John Suitt, Jr., an investigator with the Durham Police Department, testified that he responded to a call to the Liberty Square Apartments on 14 February 2003. Officer Suitt indicated during cross-examination that when he spoke to Lee on 28 February 2003, she stated that Defendant had not been wearing a cap at the time of the assault. Officer Suitt also testified that Lee indicated that Winstead usually wore a cap. Officer Suitt also read into evidence a statement by Defendant in which Defendant denied being at the Liberty Square Apartments during the assault. Defendant stated he was with Tamikia Carter (Carter) at her home. Defendant also stated that Carter\u2019s children and sister, along with Defendant\u2019s brother and cousin, were also present in the Carter home the night of the assault. In his statement, Defendant said the group passed out at Carter\u2019s home between midnight and 1:00 a.m. the night of the assault, and did not get up until noon the following day.\nVincente Lopez Reyes (Reyes) testified through an interpreter. Reyes stated that at approximately 10:00 p.m. on 14 February 2003, he heard two men arguing outside of his apartment' on Liberty Street. Reyes testified that he looked out his door and saw a man leaning against the back side of Reyes\u2019 car and that \u201cit seemed like [the man] was kicking somebody down there.\u201d Reyes shined a flashlight at the man, but testified that the man never showed his face to Reyes. Reyes testified that the man was dressed in loose, black clothing, and was wearing a blue or black woven hat.\nOfficer Wallace Early of the Durham Police Department testified that testing done on the knit cap recovered at the scene revealed the presence of Negroid hair which was not suitable for further analysis. On cross-examination, Officer Early testified that the decision not to seek further testing oh the hair sample was made partly because \u201cthis was something that could help the Defense, and if they wanted to have the hat tested, they would do it.\u201d Officer Early also acknowledged that Defendant consented to providing a DNA sample. Officer Early did not request a DNA sample from Winstead.\nDefendant offered the testimony of Megan Clement (Clement), Technical Director of the Forensic Identity Department of LabCorp. Clement stated that upon Defendant\u2019s request she tested a hair from the knit cap against a sample obtained from Defendant. As a result of the analysis, she concluded that the hair sample from the knit cap \u201ccould not have originated\u201d from Defendant.\nBefore Defendant rested, the trial court heard arguments outside the presence of the jury on Defendant\u2019s motion to allow hearsay evidence. Defendant sought to allow his investigator, Steve Hale, to testify regarding the contents of a statement given to him by Carter on 3 August 2004. Steve Hale would have testified that Carter told him that she held a party at her home on 14 February 2003. According to Carter\u2019s statement, she picked up Defendant between 7:00 and 8:00 p.m. and brought him to her home. Defendant remained at Carter\u2019s home all night. Further, Carter stated that she remembered the day because it was Valentine\u2019s Day and she intended to celebrate by drinking with Defendant. The parties stipulated to the unavailability of Carter. The trial court denied Defendant\u2019s motion on the. grounds that the statement lacked substantial guarantees of trustworthiness and was not more probative than any other evidence Defendant could secure with reasonable efforts.\nI.\nDefendant first asserts a constitutional and statutory right to compare Winstead\u2019s DNA to the hair recovered from the knit cap in support of Defendant\u2019s \u201cguilt of another\u201d defense. We overrule this assignment of error.\nDefendant argues that by suppressing his access to Winstead\u2019s DNA, the State violated his federal due process rights under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963). lax Brady, the United States Supreme Court held that \u201cthe suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.\u201d Id. at 87, 10 L. Ed. 2d at 218. To show a. Brady violation, a defendant must establish \u201c(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.\u201d State v. McNeil, 155 N.C. App. 540, 542, 574 S.E.2d 145, 147 (2002), disc. review denied, 356 N.C. 688, 578 S.E.2d 323 (2003). To meet the materiality requirement, Defendant must establish that \u201cthere [was] a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A \u2018reasonable probability\u2019 is a probability sufficient to undermine confidence in the outcome.\u201d United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494 (1985).\nIn McNeil, 155 N.C. App. at 542, 574 S.E.2d at 146-47, the defendant argued that the trial court improperly denied his motion to have a knit cap tested for DNA and compared with the defendant\u2019s DNA pursuant to Brady. This Court rejected the challenge stating:\nIn our view, Brady does not apply, for several reasons. First, because the State never tested the hairs in the cap, there was no report to be disclosed to defendant. Moreover, another panel of this Court already has held that hair samples taken from the scene of a crime are not material for Brady purposes where, inter alia, the prosecution never conducted a DNA analysis. State v. Campbell, 133 N.C. App. 531, 515 S.E.2d 732, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999).\nMcNeil, 155 N.C. App. at 542, 574 S.E.2d at 147.\nHere, the trial court gave Defendant access to the State\u2019s physical evidence, including the knit cap, by order dated 18 July 2004. Defendant obtained DNA analysis on- a hair from the knit cap from LabCorp and presented the results at trial. Clement testified that after conducting DNA testing, she concluded that the sample taken from the knit cap did not match Defendant\u2019s DNA sample. Neither McNeil nor Campbell, relied on by Defendant, stand for the proposition that the State violates a defendant\u2019s due process rights under Brady by failing to conduct a DNA test. See id. We overrule this assignment of error.\nDefendant also contends that N.C. Gen. Stat. \u00a7 15A-903(e) \u201crequired the prosecutor to obtain a DNA sample from Anthony Winstead for comparison to hairs in the knit cap.\u201d Defendant argues that the trial court\u2019s refusal to require the State to perform DNA testing entitles him to a new trial. We disagree.\nPrior to a recent amendment, N.C. Gen. Stat. \u00a7 15A-903(e) (2003) stated:\nReports of Examinations and Tests \u2014 Upon motion of a defendant, the court must order the prosecutor to provide a copy of or to permit the defendant to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecutor. In addition, upon motion of a defendant, the court must order the prosecutor to permit the defendant to inspect, examine, and test, subject to appropriate safeguards, any physical evidence, or a sample of it, available to the prosecutor if the State intends to offer the evidence, or tests or experiments made in connection with the evidence, as an exhibit or evidence in the case.\nThis section has been broadly construed by our courts and requires the State to disclose, upon request by a defendant, not only the bare results of tests, but also tests or procedures utilized to reach the con-elusions. State v. Dunn, 154 N.C. App. 1, 8, 571 S.E.2d 650, 655 (2002), disc. review denied, 356 N.C. 685, 578 S.E.2d 314 (2003).\nWhile Defendant accurately notes the broad construction afforded this statutory provision, Defendant fails to show how the statute compels the State to perform, a DNA test. In this instance, no DNA test was performed on Winstead\u2019s hair, and for reasons discussed in the next section, Defendant was not entitled to an order requiring it. Accordingly, the discovery rule provides no basis for a finding of prejudicial error.\nIn Defendant\u2019s final argument within this assignment of error, he asserts that \u201cthe trial court erred in failing to order the State to obtain a sample of Winstead\u2019s DNA upon the defense request for a nontestimonial identification order.\u201d The trial court denied Defendant\u2019s motion on the ground that Defendant\u2019s affidavit \u201craise[d] a mere suspicion, and that\u2019s not enough ... to find that there\u2019s probable cause to require the [nontestimonial identification] order testing the DNA.\u201d We hold that the trial court properly denied Defendant\u2019s motion, but not for the reason given. Instead, the trial court lacked the statutory authority to grant the motion. See State v. Tucker, 329 N.C. 709, 721, 407 S.E.2d 805, 812 (1991).\nN.C. Gen. Stat. \u00a7 15A-281 governs requests by defendants for non-testimonial identification orders and provides:\nA person arrested for or charged with a felony offense, or a Class A1 or Class 1 misdemeanor offense may request that non-testimonial identification procedures be conducted upon himself. If it appears that the results of specific nontestimonial identification procedures will be of material aid in determining whether the defendant committed the offense, the judge to whom the request was directed must order the State to conduct the identification procedures.\nN.C. Gen. Stat. \u00a7 15A-281 (2005) (emphasis added). In Tucker, 329 N.C. at 720, 407 S.E.2d at 812, the defendant sought a nontesti-monial identification order to test the DNA of a witness to show that the defendant was innocent. The trial court denied the defendant\u2019s motion. Id. Our Supreme Court affirmed the trial court\u2019s decision, because \u201cno statute gives a defendant the right to request [a nontestimonial identification] order directed against potential witnesses against him or against any other individual.\u201d Id. at 721, 407 S.E.2d at 812.\nHere, like in Tucker, Defendant sought a nontestimonial identification order directed against another individual. Since our Supreme Court has previously held that the trial court lacked the authority to grant such an order, Defendant\u2019s motion was properly denied. Accordingly, this assignment of error is overruled.\nH.\nDefendant next argues that the trial court erred by prohibiting him from cross-examining Winstead as to \u201cwhy [Winstead] refused to voluntarily submit a DNA sample for comparison with the knit cap found at the scene.\u201d Defendant contends this evidence was relevant under N.C. Gen. Stat. \u00a7 8C-1, Rule 401 to show guilt of another and that limiting cross-examination in this way violated Defendant\u2019s constitutional right to present a complete defense. We find this assignment of error without merit.\nDefendant argues that evidence regarding Winstead\u2019s lack of cooperation was relevant under N.C. Gen. Stat. \u00a7 8C-1, Rule 401 and went beyond mere speculation and conjecture as to the guilt of another. Thus, according to Defendant, the trial court erred in excluding the evidence sought to be elicited on cross-examination concerning whether Winstead would submit to a DNA test.\nOur Supreme Court has held that in order to meet the relevancy requirement of N.C. Gen. Stat. \u00a7 8C-1, Rule 401, evidence of the guilt of another \u201cmust point directly to the guilt of another specific party and must tend both to implicate that other party and be inconsistent with the guilt of the defendant.\u201d State v. Brewer, 325 N.C. 550, 561, 386 S.E.2d 569, 575 (1989), cert. denied, Brewer v. North Carolina, 495 U.S. 951, 109 L. Ed. 2d 541 (1990). Thus, \u201c[e]vidence which does no more than create an inference or conjecture as to another\u2019s guilt is inadmissible.\u201d Id. at 564, 386 S.E.2d at 577. On appeal, the trial court\u2019s determination of relevancy is given great deference. State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991), cert. denied, Wallace v. North Carolina, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).\nHere, the issue is whether Defendant should have been permitted to ask Winstead on cross-examination if Winstead was willing to submit a DNA sample, and not as Defendant contends, whether the results of a test of Winstead\u2019s DNA would have properly been admissible. First, we note that Defendant made no offer of proof as to what Winstead\u2019s answer to this question would have been. \u201cIn order to preserve an argument on appeal which relates to the exclusion of evidence, including evidence solicited on cross-examination, the defendant must make an offer of proof so that the substance and significance of the excluded evidence is in the record.\u201d State v. Ginyard, 122 N.C. App. 25, 33, 468 S.E.2d 525, 531 (1996). See also N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) (2005). Accordingly, \u201c \u2018[w]e can only speculate as to what the witness\u2019 answer would have been.\u2019 \u201d State v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310-11 (1994) (quoting State v. King, 326 N.C. 662, 674, 392 S.E.2d 609, 617 (1990)).\nEven assuming that Winstead would have answered this question in the negative, such an answer would not point directly to his guilt, nor would it be inconsistent with Defendant\u2019s guilt. Conflicting testimony was presented at trial as to whether the perpetrator of the assault was wearing a hat. Thus, whether or not Winstead would submit to a DNA test does no more than raise conjecture that he was wearing the hat, a fact which is not inconsistent with Defendant\u2019s guilt and does not directly point to Winstead\u2019s guilt. Accordingly, we affirm the trial court\u2019s relevancy determination.\nBy this assignment of error, Defendant also argues that limiting Defendant\u2019s cross-examination of Winstead violated Defendant\u2019s right to present a complete defense under the U.S. Constitution. Defendant relies upon Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297 (1973), to support this argument. At trial, no argument was made with respect to whether precluding Defendant\u2019s question amounted to a constitutional violation. Because Defendant failed to raise this constitutional issue below, we decline to address it now. See State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005) (\u201c[C]onstitu-tional error will not be considered for the first time on appeal.\u201d).\nIII.\nIn his third assignment of error, Defendant contends that the trial court erred in preventing Defendant\u2019s investigator, Steve Hale, from testifying to a statement given by Carter pursuant to the residual hearsay exception of N.C. Gen. Stat. \u00a7 8C-1, Rule 804(b)(5). Defendant further asserts that exclusion of this statement amounted to a constitutional violation of his right to present a defense. We decline to address Defendant\u2019s constitutional argument because he did not raise it below. See Chapman, 359 N.C. at 366, 611 S.E.2d at 822 (\u201c[C]onstitutional error will not be considered for the first time on appeal.\u201d).\nUnavailability of a declarant is required to admit hearsay evidence pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 804(b)(5). State v. Triplett, 316 N.C. 1, 9, 340 S.E.2d 736, 741 (1986). Upon a finding of unavailability, the trial court must engage in a six-part inquiry to .determine whether the hearsay testimony is admissible. Id. at 8, 340 S.E.2d at 741. The trial court must determine that proper notice was given by the proponent, and that the evidence does not fall within any other hearsay exception. Id. at 9, 340 S.E.2d at 741. The trial court must find that the statement exhibits \u201cequivalent circumstantial guarantee [s] of trustworthiness\u201d and \u201cis offered as evidence of a material fact.\u201d Id. The statement must also be \u201cmore probative on the point for which it is offered than any other evidence which the proponent can produce through reasonable efforts.\u201d Id. (quoting N.C. Gen. Stat. \u00a7 8C-1, Rule 804(b)(5) (2005)). Finally, the trial court must find that \u201cthe general purposes of [the] rules [of evidence] and the interests of justice will best be served by admission of the statement into evidence.\u201d Id. Further, our Supreme Court has held that, on appeal, \u201c[w]e will find reversible error only if the findings are not supported by competent evidence, or if the law was erroneously applied.\u201d State v. Deanes, 323 N.C. 508, 515, 374 S.E.2d 249, 255 (1988), cert. denied, Deanes v. North Carolina, 490 U.S. 1101, 104 L. Ed. 2d 1009 (1989).\nDefendant argues that the trial court erred in concluding that Carter\u2019s statement lacked the trustworthiness required to admit it under N.C.G.S. \u00a7 8C-1, Rule 804(b)(5). Our Supreme Court has identified four factors a trial court should consider in its trustworthiness analysis: \u201c(1) assurances of the declarant\u2019s personal knowledge of the underlying events, (2) the declarant\u2019s motivation to speak the truth or otherwise, (3) whether the declarant has ever recanted the statement, and (4) the practical availability of the declarant at trial for meaningful cross-examination.\u201d Triplett, 316 N.C. at 10-11, 340 S.E.2d at 742.\nIn ruling upon the admissibility of Carter\u2019s statement, the trial court found that the large amount of alcohol consumed at Carter\u2019s house, and Defendant\u2019s choice not to call the other people present at Carter\u2019s house to testify, diminished the circumstantial guarantees of trustworthiness of Carter\u2019s statement. Defendant indicated that the choice was made not to offer these other witnesses because they could not testify for certain that they were at Carter\u2019s house \u201cat any particular time\u201d and could not testify that Defendant was at Carter\u2019s house for the entire evening. The trial court\u2019s finding that the statement lacked circumstantial guarantees of trustworthiness is supported by competent evidence, and we must therefore affirm the finding.\nThe trial court also found that the statement was inadmissible under the residual hearsay exception because it was not more probative than any other evidence that Defendant could secure through reasonable efforts on the point of Defendant\u2019s alibi. Specifically, the trial court noted that Carter\u2019s sister and another available witness had also attended the party and could serve as alibi witnesses for Defendant, instead of Steve Hale\u2019s hearsay testimony. Because this finding is supported by competent evidence, we affirm. Thus, the trial court properly excluded the hearsay testimony under N.C.G.S. \u00a7 8C-1, Rule 804(b)(5).\nDefendant does not argue his remaining assignments of error. Accordingly, we deem them abandoned pursuant to N.C.R. App. P. 28(b)(6).\nNo error.\nJudges BRYANT and ELMORE concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Robert J. Blum, for the State.", "Kathryn L. VandenBerg for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTONIO RAMILLE RYALS\nNo. COA05-1479\n(Filed 17 October 2006)\n1. Constitutional Law\u2014 due process \u2014 Brady decision \u2014 failure to conduct DNA test\nThe State\u2019s failure to conduct a DNA test on hair found on a knit cap discovered at a murder scene did not violate defendant\u2019s federal due process rights under Brady v. Maryland, 373 U.S. 83 (1963). The trial court gave defendant access to the State\u2019s physical evidence, including the knit cap, and defendant obtained a DNA analysis on a hair from the knit cap and presented the results at trial.\n2. Criminal Law\u2014 discovery \u2014 performance of DNA test\nThe discovery statute that required the State to disclose, upon request by defendant, test results and the procedures utilized to reach those results, N.C.G.S. \u00a7 15A-903(e), did not compel the State to perform a DNA test on hair found on a knit cap discovered at a murder scene.\n3. Search and Seizure\u2014 nontestimonial identification order \u2014 motion by defendant \u2014 DNA test of another\nThe trial court had no authority to grant defendant\u2019s motion for a nontestimonial identification order requiring the State to test the DNA of another individual in order to show that a murder was committed by that individual rather than by defendant. N.C.G.S. \u00a7 15A-281.\n4. Evidence\u2014 guilt of another defense \u2014 relevancy\u2014failure to make offer of proof\nThe trial court did not err in a second-degree murder case by prohibiting defendant from cross-examining a witness as to whether he would submit a DNA sample for comparison with a knit cap found at the crime scene, because: (1) N.C.G.S. \u00a7 8C-1, Rule 401 provides that evidence of the guilt of another must point directly to the guilt of another specific party and must tend both to implicate that other party and be inconsistent with the guilt of defendant; (2) evidence which does no more than create an inference or conjecture as to another\u2019s guilt is inadmissible; (3) defendant made no offer of proof as to what the witness\u2019s answer to this question would have been; (4) even assuming arguendo that the witness would have answered this question in the negative, such an answer would not point directly to his guilt, nor would it be inconsistent with defendant\u2019s guilt when conflicting evidence was presented at trial as to whether the perpetrator of the assault was wearing a hat; and (5) defendant failed to raise at trial the constitutional issue of the right to present a complete defense, and it will not be addressed for the first time on appeal.\n5. Evidence\u2014 hearsay \u2014 residual hearsay exception \u2014 lack of trustworthiness\nThe trial court did not err in a second-degree murder case by preventing defendant\u2019s investigator from testifying to a witness\u2019s statement under the residual hearsay exception of N.C.G.S. \u00a7 8C-1, Rule 804(b)(5), because: (1) the trial court\u2019s finding that the statement lacked circumstantial guarantees of trustworthiness was supported by competent evidence including the large amount of alcohol consumed at the witness\u2019s house as well as defendant\u2019s choice not to call the other people present at the witness\u2019s house to testify; and (2) the statement was not more probative than any other evidence that defendant could secure through reasonable efforts on the point of defendant\u2019s alibi.\nAppeal by Defendant from an order dated 2 November 2004 by Judge Kenneth C. Titus in Superior Court, Durham County and judgment dated 4 March 2005 by Judge Robert H. Hobgood in Superior Court, Durham County. Heard in the Court of Appeals 16 August 2006.\nAttorney General Roy Cooper, by Special Deputy Attorney General Robert J. Blum, for the State.\nKathryn L. VandenBerg for Defendant-Appellant." }, "file_name": "0733-01", "first_page_order": 765, "last_page_order": 775 }