{ "id": 4033680, "name": "STATE OF NORTH CAROLINA v. HAROLD W. FOSTER, Defendant", "name_abbreviation": "State v. Foster", "decision_date": "2012-08-07", "docket_number": "No. COA11-1227", "first_page": "199", "last_page": "205", "citations": [ { "type": "official", "cite": "222 N.C. App. 199" } ], "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": "2011 WL 3276748", "category": "reporters:specialty_west", "reporter": "WL", "weight": 3, "year": 2011, "pin_cites": [ { "page": "*3", "parenthetical": "unpublished" }, { "page": "*3" } ], "opinion_index": 0 }, { "cite": "714 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "2010 WL 2367302", "category": "reporters:specialty_west", "reporter": "WL", "weight": 4, "year": 2010, "pin_cites": [ { "page": "*2", "parenthetical": "unpublished" }, { "page": "*2" }, { "page": "*3" } ], "opinion_index": 0 }, { "cite": "696 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "weight": 2, "year": 2010, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "677 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "529", "parenthetical": "holding that defendant failed to present evidence that satellite based monitoring device interfered with his ability to obtain employment when defendant relied solely on arguments of counsel" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167386 ], "year": 2009, "pin_cites": [ { "page": "475", "parenthetical": "holding that defendant failed to present evidence that satellite based monitoring device interfered with his ability to obtain employment when defendant relied solely on arguments of counsel" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0461-01" ] }, { "cite": "595 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "411", "parenthetical": "holding that arguments of counsel in prior case were not evidence and, therefore, were inadmissible" } ], "opinion_index": 0 }, { "cite": "358 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987693 ], "year": 2004, "pin_cites": [ { "page": "289", "parenthetical": "holding that arguments of counsel in prior case were not evidence and, therefore, were inadmissible" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0243-01" ] }, { "cite": "478 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "345 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54151 ], "year": 1996, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0170-01" ] }, { "cite": "407 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "822" } ], "opinion_index": 0 }, { "cite": "329 N.C. 727", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553418 ], "year": 1991, "pin_cites": [ { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0727-01" ] } ], "analysis": { "cardinality": 673, "char_count": 15455, "ocr_confidence": 0.747, "pagerank": { "raw": 2.566320345875961e-07, "percentile": 0.815833664433718 }, "sha256": "e929dc5dc38492a34250f0919c452122a4569d347c9e4b5e982e3cbf670a5843", "simhash": "1:eb6bf8209aeb31bd", "word_count": 2499 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. HAROLD W. FOSTER, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Harold W. Foster appeals from an order denying his motion for post-conviction DNA testing. On appeal, defendant argues that the trial court erred in admitting into evidence and considering a prosecutor\u2019s trial outline summarizing defendant\u2019s anticipated testimony in a prosecution of a co-defendant. We agree with defendant that the outline constituted inadmissible hearsay, but hold that any error was harmless because defendant did not meet his burden of showing materiality under N.C. Gen. Stat. \u00a7 15A-269(a)(1) (2011). We, therefore, affirm.\nFacts\nDefendant was indicted for first degree murder on 29 September 1997. On or about 25 September 1998, defendant entered an Alford plea of guilty to second degree murder. Defendant was sentenced on 2 October 1998 in the presumptive range to a minimum of 216 months and a maximum of 269 months imprisonment. No transcript is available for the hearing at which the trial court accepted defendant\u2019s guilty plea.\nOn 24 September 2009, defendant filed a motion for DNA testing pursuant to N.C. Gen. Stat. \u00a7 15A-269. Defendant\u2019s motion was a preprinted form with blanks and check boxes. Defendant indicated on the form that the following items were collected during the State\u2019s investigation of the crime: (1) blood samples from the victim; (2) a bloodstain on a cloth from the victim; (3) blood and hair samples from all of the defendants; and (4) hair collected from the bar of the residence where the murder took place and where the main defendant in the case, Philip Carter, resided. Defendant checked the boxes on the \u201cfill in the blank\u201d motion stating that these items were not subjected to DNA testing and could now be subjected to newer and more accurate testing.\nAs required by N.C. Gen. Stat. \u00a7 15A-269(b)(3), defendant accompanied his motion with an affidavit of innocence. In further support of his motion, defendant submitted two laboratory reports from the State Bureau of Investigation regarding requested blood and hair analysis.\nThe first report itemized pieces of evidence and samples taken from various locations connected with the murder on which the lab had found no blood. The report also noted that a bloodstain on cloth from the victim and liquid blood samples from the victim and four suspects were not analyzed.\nThe second report, detailing the results of requested hair analysis, found no transfer of hair on samples taken from locations where the body of the victim might have been. The report also noted that an \u201cexamination was conducted on\u201d tapings \u201cfrom the back of the victim\u2019s shirt,\u201d \u201cfrom the back of the victim\u2019s pants,\u201d and \u201cfrom the front of the victim\u2019s shirt,\u201d along with the victim\u2019s pants and T-shirt. The report did not indicate the results of that examination, but stated that standards should be resubmitted \u201c[i]f any further analysis is required.\u201d\nOn 6 August 2010, Judge John L. Holshouser, Jr. ordered the District Attorney\u2019s Office to file a response to defendant\u2019s motion by 8 October 2010. A response was filed by the prosecutor who had entered into the plea agreement with defendant. The State opposed defendant\u2019s motion, arguing that the \u201clegal basis of defendant\u2019s charge and conviction was that he aided and abetted Phillip Carter in the murder\u201d and that defendant had not shown how any DNA testing would be material to his defense.\nThe State attached to the response five SBI laboratory reports and the prosecutor\u2019s trial outline for the trial of Phillip Carter, including defendant\u2019s anticipated testimony and the testimony of other witnesses. The response described the outline as follows:\n8. Attached as Exhibit F is the trial outline prepared by the District Attorney. This outline includes anticipated testimony by the defendant, based upon interviews of the defendant by law enforcement and the District Attorney. It is anticipated that defendant\u2019s testimony would have shown his culpability as an aider and abettor.\nThe State contended that because defendant was an aider and abettor, it was unlikely that there would have been any transfer of biological evidence, and, therefore, DNA testing would not produce material evidence.\nIn an order filed 30 September 2010, Judge Richard L. Doughton denied defendant\u2019s motion for DNA testing on the following grounds:\n(7) In this case based upon the file in this matter and particularly the response filed by the District Attorney that the defendant participated in this homicide as an aider and abettor which would not have resulted in the transfer of biological evidence between the Defendant and the victim and therefore there has been no showing as to how the granting of this motion would be material to the investigation, prosecution or defense of the Defendant in this case.\n(8) Furthermore, the Defendant has failed to allege or offer evidence regarding the manner in which the requested DNA testing of the designated biological evidence is material to the Defendant\u2019s defense.\n(9) The Defendant has failed to offer any evidence or explanation regarding the manner in which the requested DNA testing is related to the investigation or prosecution that led to the Defendant\u2019s conviction herein.\nThe trial court then set out a conclusion of law that the requested DNA testing was not material in that there was no showing that any DNA evidence could change the outcome of the case. Defendant timely appealed to this Court.\nDiscussion\nDefendant contends that because the prosecutor\u2019s trial outline for the Carter trial constituted inadmissible hearsay, the trial court erred in using it as a basis for the court\u2019s ruling. The State, however, argues that the Rules of Evidence do not apply to motions for post-conviction DNA testing.\nRule 101 of the North Carolina Rules of Evidence provides: \u201cThese rules govern proceedings in the courts of this State to the extent and with the exceptions stated in Rule 1101.\u201d The State urges that a motion does not constitute a proceeding. We cannot agree. If we were to adopt the State\u2019s position, then the Rules of Evidence would not apply to motions to suppress or motions for appropriate relief in criminal cases or motions for summary judgment in civil cases. Obviously, that cannot be the law.\nIndeed, Black\u2019s Law Dictionary 1324 (9th ed. 2009), defines \u201c[proceeding\u201d as \u201c2. Any procedural means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger action. 4. The business conducted by a court or other official body; a hearing.\u201d A quotation included immediately after the definition specifically indicates that a \u201cproceeding\u201d has historically included pre-trial testimony and motions. Id. A motion for post-conviction DNA testing is certainly a procedural means for obtaining relief, and the trial court conducted a hearing on that motion. Defendant\u2019s motion resulted in a proceeding.\nThat conclusion does not, however, complete the inquiry regarding the applicability of the Rules of Evidence. Under Rule 101, the question remains whether a motion for DNA testing falls within any of the exceptions set out in Rule 1101 of the North Carolina Rules of Evidence. Rule 1101(a) provides: \u201cExcept as otherwise provided in subdivision (b) or by statute, these rules apply to all actions and proceedings in the courts of this State.\u201d\nRule 1101(b) in turn specifies that the Rules are not applicable to preliminary questions of fact to determine admissibility; proceedings before grand juries; proceedings for extradition or rendition; first appearances before district court judges or probable cause hearings in criminal cases; sentencing or the granting or revoking of probation; issuance of warrants for arrest, criminal summonses, and search warrants; proceedings with respect to release on bail or otherwise; and contempt proceedings. Motions for post-conviction DNA testing do not fall within any of these exceptions.\nIt is well established that \u201c[u]nder the doctrine of expressio unius est exclusio alterius, a statute\u2019s expression of specific exceptions implies the exclusion of other exceptions.\u201d Alberti v. Manufactured Homes, Inc., 329 N.C. 727, 732, 407 S.E.2d 819, 822 (1991). Applying the doctrine here, since motions for post-conviction DNA testing are not listed as an exception while the Rules of Evidence specifically list other exceptions, the Rules of Evidence apply to post-conviction DNA testing motions or proceedings.\nAs a result, we must decide whether the trial outline for the Carter trial submitted by the State and relied upon by the trial court was admissible under the Rules of Evidence. The State submitted the Carter trial outline in order to prove the nature of defendant\u2019s involvement in the murder and to show that his involvement as an aider and abettor would not likely have produced biological material that could be subjected to DNA testing. The State\u2019s response explained that defendant\u2019s plea agreement was conditioned upon his providing truthful testimony in the Carter case and that the legal basis of defendant\u2019s charge and conviction was that he aided and abetted Phillip Carter in the murder. The State was unable to rely upon the description of defendant\u2019s involvement set out during his plea hearing because no transcript exists of that hearing.\nThe Carter trial outline is an out-of-court statement offered for the truth of the matter asserted: that defendant was an aider and abettor. Therefore, the trial outline is hearsay. N.C.R. Evid. 801(c) (\u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d). Defendant did not stipulate or otherwise admit any of the information contained in the outline and, therefore, the outline is not admissible as an admission of a party opponent. Nor has the State identified any applicable exceptions to the hearsay rule.\nThe prosecutor\u2019s unverified response and the attached outline amount to nothing more than an unsworn statement of counsel. As our Supreme Court has noted, \u201cit is axiomatic that the arguments of counsel are not evidence.\u201d State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191, 193 (1996). See also State v. Roache, 358 N.C. 243, 289, 595 S.E.2d 381, 411 (2004) (holding that arguments of counsel in prior case were not evidence and, therefore, were inadmissible); State v. Bare, 197 N.C. App. 461, 475, 677 S.E.2d 518, 529 (2009) (holding that defendant failed to present evidence that satellite based monitoring device interfered with his ability to obtain employment when defendant relied solely on arguments of counsel).\nThe trial court erred in admitting and relying upon the trial outline. Nevertheless, we hold that defendant was not harmed by this error since the trial court also properly concluded that defendant had failed to show materiality as required by N.C. Gen. Stat. \u00a7 I5A-269.\nN.C. Gen. Stat. \u00a7 15A-269 provides in pertinent part:\n(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:\n(1) Is material to the defendant\u2019s defense.\n(2) Is related to the investigation or prosecution that resulted in the judgment.\n(3) Meets either of the following conditions:\na. It was not DNA tested previously.\n(b) The court shall grant the motion for DNA testing . . . upon its determination that:\n(1) The conditions set forth in subdivisions (1), (2), and (3) of subsection (a) of this section have been met;\n(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\n(3) The defendant has signed a sworn affidavit of innocence.\nWhile not controlling, we find two unpublished cases persuasive. In State v. Barts, 204 N.C. App. 596, 696 S.E.2d 923, 2010 N.C. App. LEXIS 979, at *4-5, 2010 WL 2367302, at *2 (2010) (unpublished), this Court held, based on the language of N.C. Gen. Stat. \u00a7 15A-269(b)(1), that \u201ca condition precedent to a trial court\u2019s statutory authority to grant a motion under N.C.G.S. \u00a7 15A-269 is that the conditions of subsection (a)\u201d be met. This Court then concluded that the trial court did' not err in denying the defendant\u2019s motion for DNA testing because the defendant \u201cmade no showing, as he concedes, relating to how the requested DNA testing would have been material to his defense as required by the condition set forth under N.C.G.S. \u00a7 15A-269(a)(1).\u201d Id., 2010 N.C. App. LEXIS 979, at *6, 2010 WL 2367302, at *2.\nIn State v. Moore,_N.C. App._, 714 S.E.2d 529, 2011 N.C. App. LEXIS 1651, at *6-7, 2011 WL 3276748, at *3 (2011) (unpublished), the defendant\u2019s motion stated as to the materiality prong of N.C. Gen. Stat. \u00a7 15A-269 only: \u201c \u2018The ability to conduct the requested DNA testing is material to Defendant's defense.\u2019 \u201d After adopting the reasoning of Barts, this Court concluded that because \u201cDefendant\u2019s motion in no manner indicated how or why DNA testing would be material to his defense,\u201d that motion \u201cfailed the requirements of N.C.G.S. \u00a7 15A-269 on this issue, and Defendant\u2019s \u2018filing was insufficient to allow his request seeking postconviction DNA testing[.]\u2019 \u201d Id., 2011 N.C. App. LEXIS 1651, at *8-9, 2011 WL 3276748, at *3 (quoting Barts, 204 N.C. App. 596, 696 S.E.2d 923, 2010 N.C. App. LEXIS 979, at *7, 2010 WL 2367302, at *3).\nWe specifically adopt the reasoning of Barts and Moore. The burden is on defendant to make the materiality showing required in N.C. Gen. Stat. \u00a7 15A-269(a)(1). Here, with respect to materiality, defendant made only the same conclusory statement found insufficient in Moore \u2014 his motion stated only that \u201c[t]he ability to conduct the requested DNA testing is material to the Defendant\u2019s defense.\u201d Defendant has provided no other explanation of why DNA testing would be material to his defense.\nAs defendant failed to establish the condition precedent to the trial court\u2019s granting his motion, the trial court properly denied the motion. We need not, therefore, address the State\u2019s alternative argument, pursuant to N.C.R. App. P 10(c), that defendant was not entitled to seek post-conviction DNA testing because he pled guilty.\nAffirmed.\nJudges McGEE and McCULLOUGH concur.\n. While the trial court denominated these grounds as findings of fact, they appear to be more properly characterized as conclusions of law.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O\u2019Brien, for the State.", "Jarvis John Edgerton, TV for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HAROLD W. FOSTER, Defendant\nNo. COA11-1227\n(Filed 7 August 2012)\nEvidence \u2014 hearsay\u2014prosecutor\u2019s trial outline \u2014 summary of defendant\u2019s anticipated testimony \u2014 motion for DNA testing \u2014 harmless error\nThe trial court committed harmless error in a first-degree murder case when ruling on defendant\u2019s motion for DNA testing by admitting into evidence and considering a prosecutor\u2019s trial outline summarizing defendant\u2019s anticipated testimony in a prosecution of a codefendant. The outline constituted inadmissible hearsay, but defendant did not meet his burden of showing materiality under N.C.G.S. \u00a7 15A-269(a)(l) since he was being tried as an aider and abettor.\nAppeal by defendant from order entered 30 September 2010 by Judge Richard L. Doughton in Rowan County Superior Court. Heard in the Court of Appeals 20 March 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Daniel P. O\u2019Brien, for the State.\nJarvis John Edgerton, TV for defendant-appellant." }, "file_name": "0199-01", "first_page_order": 209, "last_page_order": 215 }