Appeal 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
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert J. Blum, for the State.
Kathryn L. VandenBerg for Defendant-Appellant.
Antonio 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.
Prior 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 "could have committed the crime." 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's
At trial, the State's 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 thatDefendant 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 "[t]ake care of that ---
--- I got ya." 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.
Winstead 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 "stuff, meaning drugs."
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 "all in [Defendant's] face." 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.
Winstead 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's motion to strike.
Mark 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 ofkeys.
Officer 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's children and sister, along with
Defendant's 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's home between midnight and 1:00
a.m. the night of the assault, and did not get up until noon the
Vincente 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' car and that "it seemed
like [the man] was kicking somebody down there." 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. Officer 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 on the hair sample
was made partly because "this was something that could help the
Defense, and if they wanted to have the hat tested, they would do
it." Officer Early also acknowledged that Defendant consented to
providing a DNA sample. Officer Early did not request a DNA sample
Defendant offered the testimony of Megan Clement (Clement),
Technical Director of the Forensic Identity Department of LabCorp.
Clement stated that upon Defendant's 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 "could not have originated" from Defendant.
Before Defendant rested, the trial court heard arguments
outside the presence of the jury on Defendant's 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's statement, she picked up
Defendant between 7:00 and 8:00 p.m. and brought him to her home.
Defendant remained at Carter's home all night. Further, Carter
stated that she remembered the day because it was Valentine's Dayand she intended to celebrate by drinking with Defendant. The
parties stipulated to the unavailability of Carter. The trial
court denied Defendant's 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
Defendant first asserts a constitutional and statutory right
to compare Winstead's DNA to the hair recovered from the knit cap
in support of Defendant's "guilt of another" defense. We overrule
this assignment of error.
 Defendant argues that by suppressing his access to
Winstead's DNA, the State violated his federal due process rights
under Brady v. Maryland
, 373 U.S. 83, 10 L. Ed. 2d 215 (1963). In
, the United States Supreme Court held that "the 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." Id.
at 87, 10 L. Ed. 2d at 218. To show a Brady
violation, a defendant must establish "(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." 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 "there [was] a reasonable probability that, had theevidence been disclosed to the defense, the result of the
proceeding would have been different. A 'reasonable probability'
is a probability sufficient to undermine confidence in the
outcome." United States v. Bagley
, 473 U.S. 667, 682, 87 L. Ed. 2d
481, 494 (1985).
, 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's
DNA pursuant to Brady
. This Court rejected the
In 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
N.C. 111, 540 S.E.2d 370 (1999).
, 155 N.C. App. at 542, 574 S.E.2d at 147.
Here, the trial court gave Defendant access to the State's
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's DNA sample.
, relied on by Defendant, stand for the
proposition that the State violates a defendant's due process
rights under Brady
by failing to conduct a DNA test. See id
overrule this assignment of error.  Defendant also contends that N.C. Gen. Stat. § 15A-903(e)
"required the prosecutor to obtain a DNA sample from Anthony
Winstead for comparison to hairs in the knit cap." Defendant
argues that the trial court's refusal to require the State to
perform DNA testing entitles him to a new trial. We disagree.
Prior to a recent amendment, N.C. Gen. Stat. § 15A-903(e)
Reports of Examinations and Tests _ 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
This 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 conclusions. 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).
While Defendant accurately notes the broad construction
afforded this statutory provision, Defendant fails to show how thestatute compels the State to perform
a DNA test. In this instance,
no DNA test was performed on Winstead's 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.
 In Defendant's final argument within this assignment of
error, he asserts that "the trial court erred in failing to order
the State to obtain a sample of Winstead's DNA upon the defense
request for a nontestimonial identification order." The trial
court denied Defendant's motion on the ground that Defendant's
affidavit "raise[d] a mere suspicion, and that's not enough . . .
to find that there's probable cause to require the [nontestimonial
identification] order testing the DNA." We hold that the trial
court properly denied Defendant's 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).
N.C. Gen. Stat. § 15A-281 governs requests by defendants for
nontestimonial identification orders and provides:
A person arrested for or charged with a felony
offense, or a Class A1 or Class 1 misdemeanor
offense may request that nontestimonial
identification procedures be conducted upon
. 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
N.C. Gen. Stat. § 15A-281 (2005) (emphasis added). In Tucker
, 329N.C. at 720, 407 S.E.2d at 812, the defendant sought a
nontestimonial identification order to test the DNA of a witness to
show that the defendant was innocent. The trial court denied the
defendant's motion. Id.
Our Supreme Court affirmed the trial
court's decision, because "no statute gives a defendant the right
to request [a nontestimonial identification] order directed against
potential witnesses against him or against any other individual."
at 721, 407 S.E.2d at 812.
Here, 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's motion was
properly denied. Accordingly, this assignment of error is
 Defendant next argues that the trial court erred by
prohibiting him from cross-examining Winstead as to "why [Winstead]
refused to voluntarily submit a DNA sample for comparison with the
knit cap found at the scene." Defendant contends this evidence was
relevant under N.C. Gen. Stat. § 8C-1, Rule 401 to show guilt of
another and that limiting cross-examination in this way violated
Defendant's constitutional right to present a complete defense. We
find this assignment of error without merit.
Defendant argues that evidence regarding Winstead's lack of
cooperation was relevant under N.C. Gen. Stat. § 8C-1, Rule 401 and
went beyond mere speculation and conjecture as to the guilt ofanother. 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.
Our Supreme Court has held that in order to meet the relevancy
requirement of N.C. Gen. Stat. § 8C-1, Rule 401, 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 the defendant." State v. Brewer
325 N.C. 550, 561, 386 S.E.2d 569, 575 (1989), cert. denied
v. North Carolina
, 495 U.S. 951, 109 L. Ed. 2d 541 (1990). Thus,
"[e]vidence which does no more than create an inference or
conjecture as to another's guilt is inadmissible." Id.
at 564, 386
S.E.2d at 577. On appeal, the trial court's 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.
, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).
Here, 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's DNA would have properly
been admissible. First, we note that Defendant made no offer of
proof as to what Winstead's answer to this question would have
been. "In 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 inthe record." State v. Ginyard
, 122 N.C. App. 25, 33, 468 S.E.2d
525, 531 (1996). See also
N.C. Gen. Stat. § 8C-1, Rule 103(a)(2)
(2005). Accordingly, "'[w]e can only speculate as to what the
witness' answer would have been.'" 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)).
Even 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's 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's guilt and does not directly point to
Winstead's guilt. Accordingly, we affirm the trial court's
By this assignment of error, Defendant also argues that
limiting Defendant's cross-examination of Winstead violated
Defendant's right to present a complete defense under the U.S.
Constitution. Defendant relies upon Chambers v. Mississippi
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's 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) ("[C]onstitutional error will notbe considered for the first time on appeal.").
 In his third assignment of error, Defendant contends that
the trial court erred in preventing Defendant's investigator, Steve
Hale, from testifying to a statement given by Carter pursuant to
the residual hearsay exception of N.C. Gen. Stat. § 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's
constitutional argument because he did not raise it below. See
, 359 N.C. at 366, 611 S.E.2d at 822 ("[C]onstitutional
error will not be considered for the first time on appeal.").
Unavailability of a declarant is required to admit hearsay
evidence pursuant to N.C. Gen. Stat. § 8C-1, Rule 804(b)(5). State
, 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
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 "equivalent circumstantial guarantee[s] of
trustworthiness" and "is offered as evidence of a material fact."
The statement must also be "more probative on the point for
which it is offered than any other evidence which the proponent can
produce through reasonable efforts." Id.
(quoting N.C. Gen. Stat.§ 8C-1, Rule 804(b)(5) (2005)). Finally, the trial court must find
that "the general purposes of [the] rules [of evidence] and the
interests of justice will best be served by admission of the
statement into evidence." Id.
Further, our Supreme Court has held
that, on appeal, "[w]e will find reversible error only if the
findings are not supported by competent evidence, or if the law was
erroneously applied." State v. Deanes
, 323 N.C. 508, 515, 374
S.E.2d 249, 255 (1988), cert. denied
, Deanes v. North Carolina
U.S. 1101, 104 L. Ed. 2d 1009 (1989).
Defendant argues that the trial court erred in concluding that
Carter's statement lacked the trustworthiness required to admit it
under N.C.G.S. § 8C-1, Rule 804(b)(5). Our Supreme Court has
identified four factors a trial court should consider in its
trustworthiness analysis: "(1) assurances of the declarant's
personal knowledge of the underlying events, (2) the declarant's
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
, 316 N.C. at 10-11, 340 S.E.2d at
In ruling upon the admissibility of Carter's statement, the
trial court found that the large amount of alcohol consumed at
Carter's house, and Defendant's choice not to call the other people
present at Carter's house to testify, diminished the circumstantial
guarantees of trustworthiness of Carter's statement. Defendant
indicated that the choice was made not to offer these other
witnesses because they could not testify for certain that they wereat Carter's house "at any particular time" and could not testify
that Defendant was at Carter's house for the entire evening. The
trial court's finding that the statement lacked circumstantial
guarantees of trustworthiness is supported by competent evidence,
and we must therefore affirm the finding.
The 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's alibi.
Specifically, the trial court noted that Carter's sister and
another available witness had also attended the party and could
serve as alibi witnesses for Defendant, instead of Steve Hale's
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. § 8C-1, Rule 804(b)(5).
Defendant does not argue his remaining assignments of error.
Accordingly, we deem them abandoned pursuant to N.C.R. App. P.
Judges BRYANT and ELMORE concur.
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