State v. Foster, 222 N.C. App. 199

Foster appeals the denial of his post-conviction DNA testing motion.
He argues the prosecutor’s Carter trial outline was inadmissible hearsay and improperly used to deny testing.
Foster pled Alford to second-degree murder in 1998; plea proceeding transcript is unavailable.
Motion was filed September 24, 2009; he identified multiple items for DNA testing and submitted an affidavit of innocence with lab reports.
The State attached SBI reports and a Carter trial outline, arguing DNA testing would be non-material because Foster was an aider and abettor.
The trial court denied testing as non-material; the appellate court held the outline admission was error but harmless since materiality under § 15A-269(a)(1) was not shown.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of the Carter outline	Rules of Evidence do not apply to post-conviction DNA motions.	The outline is inadmissible hearsay and cannot support the ruling.	Outline excluded as hearsay; error harmless for lack of materiality.
Materiality under § 15A-269(a)(1)	DNA testing would not be material given Foster’s aider-and-abettor role and lack of transfer of evidence.	DNA testing could be material to his defense and the outcome of the case.	Defendant failed to prove materiality; motion denied.

State v. Alberti, 329 N.C. 727 (1991) (expressio unius est exclusio alterius doctrine governs statutory exceptions)
State v. Collins, 345 N.C. 170 (1996) (arguments of counsel are not evidence)
State v. Roache, 358 N.C. 243 (2004) (counsel arguments in prior case are not evidence)
State v. Bare, 197 N.C. App. 461 (2009) (arguments of counsel not evidence; admissibility concerns)
State v. Barts, 204 N.C. App. 596 (2010) (materiality showing required for § 15A-269; motion insufficient)