857 S.E.2d 539
N.C. Ct. App.2021Background
- In May 2008 Irina Yarmolenko was found murdered; investigators recovered "touch DNA" from her car with predominant profiles the State said matched Mark Carver and his cousin Neal Cassada. Carver was convicted of first‑degree murder at a 2011 trial and received a life sentence; the conviction was affirmed on appeal.
- Carver later filed a motion for appropriate relief (MAR) asserting actual innocence, ineffective assistance of counsel (trial counsel failed to investigate Carver’s medical/mental limitations and the DNA science), and newly discovered evidence based on advances in DNA mixture interpretation.
- A 2019 evidentiary MAR hearing produced expert testimony that the SBI Crime Lab had used subjective mixture interpretation in 2011 and that, under modern objective standards, the 2011 DNA profile was inconclusive and unreliable for matching.
- The trial court granted a new trial on both ineffective assistance and newly discovered evidence, adopting Dr. Noureddine’s conclusions about the DNA and finding counsel unreasonably failed to investigate Carver’s disabilities and the DNA issues.
- The State filed a notice of appeal (but did not petition for certiorari). Carver moved to dismiss, arguing the State lacked a statutory right to appeal the ineffective‑assistance ruling because N.C. Gen. Stat. § 15A‑1445(a)(2) only permits appeals of MARs granted for newly discovered evidence and then only on questions of law.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Carver) | Held |
|---|---|---|---|
| Whether the State may appeal the ineffective‑assistance portion of an MAR order that also grants a new trial based on newly discovered evidence | Because the order grants a new trial in part on newly discovered evidence, the State has a right to appeal the whole order | The statute grants a limited right to appeal only new‑evidence MARs on questions of law; ineffective‑assistance rulings are not appealable by right absent certiorari | Dismissed the appeal of the ineffective‑assistance ruling for lack of appellate jurisdiction |
| Whether issues beyond newly discovered evidence are reviewable if not "inextricably intertwined" | Relies on precedent suggesting the State may appeal when an order is granted in part on newly discovered evidence | The ineffective‑assistance and newly discovered evidence claims are mutually exclusive and were based on separate facts; not intertwined | Followed Howard: only issues inextricably intertwined with the new‑evidence question are reviewable by right; here they are not |
| Whether the State can challenge factual findings (questions of fact) in such an appeal | Seeks reversal of trial court factual findings supporting ineffective assistance | Statute limits the State to appeals "only on questions of law" when the grant rests on newly discovered evidence | Court enforces statutory limit; State cannot use this route to attack factual findings |
| If the ineffective‑assistance appeal is dismissed, whether the remaining new‑evidence appeal is moot | Wants review of newly discovered evidence ruling | The new‑evidence ruling is moot because dismissal of the ineffective‑assistance appeal leaves the new trial intact regardless | Dismissed remaining portion as moot because either way Carver gets a new trial |
Key Cases Cited
- State v. Howard, 247 N.C. App. 193 (2016) (holds that, in MAR appeals, the State may appeal as of right only those issues that are inextricably intertwined with a newly discovered evidence ruling)
- State v. Peterson, 228 N.C. App. 339 (2013) (addressed MAR with a newly discovered evidence component but resolved the case on that issue alone)
- Carl v. State, 192 N.C. App. 544 (2008) (explains that appellate jurisdiction does not recognize pendent jurisdiction; only issues inextricably intertwined with an appealable ruling are reviewable)
- State v. Rhodes, 366 N.C. 532 (2013) (explains the mutual exclusivity of newly discovered evidence and ineffective assistance grounds for a new trial)
- State v. Joiner, N.C. App. , 849 S.E.2d 106 (2020) (discusses mootness where a new trial will be granted regardless of the specific ground upheld)
- In re Civil Penalty, 324 N.C. 373 (1989) (explains lower courts must follow controlling precedent and cannot overrule existing appellate holdings)