WINSTON-SALEM, N.C. — A Winston-Salem man convicted of breaking into a woman’s apartment and raping her several times wants additional DNA testing partially because the DNA analyst who testified at his trial failed a certification exam, according to court papers filed in an appeal.
The N.C. Court of Appeals ruled Tuesday that a Forsyth County judge should reconsider the man’s request, saying that the judge denied it improperly. The court did not consider the man’s allegations about the DNA analyst.
Wade Leon Shaw, 48, was convicted in February 2012 of first-degree rape, first-degree burglary, first-degree sex offense, second-degree burglary, assault by strangulation and attaining habitual felon status.
A Forsyth County judge sentenced him to life in prison without the possibility of parole. Shaw unsuccessfully appealed his conviction and then, in 2015, made a request in Forsyth Superior Court for post-conviction DNA testing. Judge David Hall of Forsyth Superior Court denied Shaw’s request, and Shaw filed an appeal of Hall’s decision with the N.C. Court of Appeals.
The appellate court said the judge used the wrong statute in considering Shaw’s request for additional DNA testing. Hall considered Shaw’s request as a motion for appropriate relief, but the court said Hall should have used the state law regarding requests for post-conviction DNA testing. The court vacated Hall’s decision on that ground.
Shaw was accused of breaking into a woman’s apartment on Jan. 2, 2011 and raping her several times. The woman and Shaw had been acquaintances who had dated casually. Shaw had come over to the woman’s apartment the night of Jan. 2, 2011 and the two had consumed alcohol and crack cocaine. Shaw then left. But later, after the woman had returned from running errands, she was accosted by a man, who choked her, tied her up, put a cover over her head and raped her. At one point, the man spoke, and the woman told police she recognized his voice as Shaw’s.
She also told police the man seemed familiar with her bathroom and that he wore a beaded necklace that appeared similar to one worn by Shaw. According to court papers, fingerprints found on light bulbs in the apartment matched Shaw’s.
Zach Kallenbach, a forensics DNA analyst with the State Crime Lab, testified that based on Shaw’s DNA profile, he could have been the contributor of sperm found in swabs taken from the woman he was accused of raping.
On July 12, 2012, Assistant District Attorney Belinda Foster sent a letter to Shaw’s attorneys, informing them that Kallenbach “was unsuccessful in his taking of the American Board of Criminalistics Test for certification in ABC Molecular Biology.”
Foster said in the letter that Kallenbach took the exam after Dec. 1, 2011 and that he was still employed with the State Crime Lab. Foster made the disclosure in response to a June 20, 2012 statewide court order requiring the State Crime Lab to provide prosecutors with test results of scientists and analysts.
“Based on the State’s acknowledgment that its DNA analyst for the case failed his certification exam, the lack of additional DNA testing of the biological evidence in this case ‘undermines confidence in the outcome of the trial,’” Shaw’s appellate attorneys, Glenn Gerding and David W. Andrews, argued in court papers.
Gerding and Andrews were out of the office and could not be reached for comment. They also argued that Shaw signed an affidavit saying that he is innocent and that there is a probability that new DNA testing could provide different results than previous DNA tests. Gerding and Andrews also said that the woman’s identification of Shaw was unreliable, partly because she had used crack cocaine and consumed alcohol. The woman told police that she was not impaired at the time of the assault, according to court papers.
Laura Brewer, spokeswoman for the N.C. Attorney General’s Office, said in an email Wednesday that state prosecutors are reviewing the decision by the N.C. Court of Appeals. She would not say whether the office planned to appeal the ruling to the N.C. Supreme Court.
A Forsyth County judge will have to consider Shaw’s request in compliance with the appellate court’s ruling.