in the Court of Appeals 5 October 2016.
by defendant from order entered 12 May 2015 by Judge Cy A.
Grant in Bertie County No. 01 CRS 54023 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Mary Carla Babb and Nicholaos G. Vlahos, for the
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Nicholas C. Woomer-Deters, for defendant-appellant.
September 2003, Terrence Lowell Hyman (defendant) was
convicted of first-degree murder and sentenced to life in
prison without parole. After a series of post-trial motions
and appeals in state and federal court, defendant filed a
motion for appropriate relief in Bertie County Superior Court
claiming, inter alia, that he was denied his right
to effective assistance of counsel based upon his trial
counsel's failure to withdraw and testify as a necessary
witness. The trial court denied defendant's motion.
allowed defendant's petition for writ of certiorari to
review the trial court's order denying his motion for
appropriate relief. Upon review, we hold the trial court
erred in concluding that (1) defendant's exculpatory
witness claim was procedurally barred under N.C. Gen. Stat.
§ 15A-1419(a); (2) defendant's exculpatory witness
claim had no evidentiary support; and (3) defendant could
demonstrate neither deficient performance nor prejudice which
would entitle him to relief under Strickland v.
Washington, 466 U.S. 668, 687 (1984). Reversed.
July 2001, a Bertie County grand jury indicted defendant for
the murder of Ernest Lee Bennett Jr., who was shot and killed
during a brawl at a crowded nightclub. The trial court
appointed Teresa Smallwood and W. Hackney High to represent
defendant. He was tried capitally at the 25 August 2003
Special Criminal Session in Bertie County Superior Court, the
Honorable Cy A. Grant presiding.
trial, the State offered testimony from two eyewitnesses,
Robert Wilson and Derrick Speller, who both testified that
defendant shot Bennett. Wilson testified that he saw
defendant enter the nightclub with a .380 caliber handgun. A
few seconds later, Wilson heard two gunshots inside and saw
Bennett run out of the door. A man following Bennett hit him
in the head with a bottle, knocking him out. As Bennett lay
on the ground, Wilson saw defendant exit the nightclub and
shoot Bennett four times.
testified that defendant walked into the nightclub with a
handgun and shot Bennett during the fight. Bennett ran toward
the door, clenching his side as defendant continued to shoot.
Speller followed out the main entrance where he saw Bennett
lying on the ground. He watched defendant kneel over Bennett
and shoot him again. As Speller ran toward his car, he heard
more gunshots behind him. He turned and saw another man,
Demetrius Jordan, shooting a nine-millimeter handgun into the
State's medical examiner, Dr. Gilliland, testified that
Bennett had four gunshot wounds and blunt force injuries to
his scalp. Bennett was shot in the back of his head, the
right side of his back, the left side of his back, and his
left buttock. According to Dr. Gilliland, either of the two
wounds to Bennett's back would have been fatal. A .380
caliber bullet was recovered from the wound to the right side
of Bennett's back. Law enforcement found two .380 caliber
casings inside the nightclub. More .380 caliber casings and
bullets were recovered outside along with six nine-millimeter
close of the State's evidence, defendant offered
testimony from two witnesses, Lloyd Pugh (L. Pugh) and
Demetrius Pugh (D. Pugh), who testified that defendant was
not the shooter. L. Pugh, the owner of the nightclub,
testified that he heard two gunshots ring out as he was
trying to break up the fight. When the shots were fired, he
was "looking at [defendant] telling him you all get out
of here." Defendant did not have a gun. L. Pugh saw
defendant and Bennett leave and heard more gunshots coming
from outside. At that point or shortly thereafter, L. Pugh
ran into defendant at the door as defendant was coming back
inside to tend to his cousin, who had been knocked out during
the fight. Defendant was still unarmed.
testified that he saw Demetrius Jordan shoot Bennett inside
the nightclub with a .380 caliber handgun. Jordan shot
Bennett again as Bennett broke for the door and two more
times outside. Jordan then retrieved a nine-millimeter
handgun from his car and shot Bennett one last time before
firing the remaining rounds into the air. D. Pugh never saw
defendant with a gun. He testified that defendant had already
left through the back door when Jordan first shot Bennett
inside the nightclub.
the State called Speller to testify at trial, Smallwood
informed High for the first time that she had interviewed
Speller. She previously represented Speller in an unrelated
probation matter and, around that time, had spoken to him
about defendant's case. During recess after Speller's
direct examination, Smallwood retrieved a set of handwritten
notes dictating their conversation:
11/20/01 Derrick Speller
Saw the whole thing
Demet had a .380 and a 9 mm.
He shot the guy and then ran out the back door
Somebody else shot at the guy with a chrome looking small gun
but "I don't know who it was."
"I heard Demetrius shot him again outside but I
don't know for sure."
"I think it was a 9 mm he (Demet) had outside.["]
Never gave a statement to police because he hustled for
Demet and Turnell and them niggers are lethal.
Can you shoot me a couple of dollars.
attempted to cross-examine Speller about their conversation
to show that Speller had previously identified Demetrius
Jordan as the shooter. Speller conceded that he spoke with
Smallwood about the case before trial but denied making any
of the statements reflected in her notes. He testified:
"I told you at that time that I couldn't help you on
this case, that I would harm [defendant] more than I could
help him if I was brought on the stand to testify. That's
the only conversation that you and I ever had about this
case." The trial court did not allow Smallwood to show
Speller her notes from the conversation or to admit the notes
into evidence at trial.
Appeal: Hyman I
his conviction, defendant filed his first appeal with the
North Carolina Court of Appeals. State v. Hyman (Hyman
I), No. COA04-1058, 2005 WL 1804345 ( N.C. Ct. App. Aug.
2, 2005). As characterized by the Court, defendant argued
that the trial court failed to conduct a hearing when it
became aware of a potential conflict of interest on the part
of Smallwood, who had previously represented Speller in an
unrelated case. Id. at *4. The Court determined:
Although the trial court was made aware of this
representation, the trial court failed to conduct an inquiry
and " 'determine whether there exist[ed] such a
conflict of interest that . . . defendant [would have been]
prevented from receiving advice and assistance sufficient to
afford him the quality of representation guaranteed by the
[S]ixth [A]mendment.' "
Id. at *5 (citing State v. James, 111
N.C.App. 785, 791, 433 S.E.2d 755, 758 (1993)). Because the
Court could not "find from the face of the record that
defendant's attorney's prior representation of
Speller affected her representation of defendant, "
however, it remanded "for an evidentiary hearing to
determine if the actual conflict adversely affected
[Smallwood's] performance." Id. at *6
(citation and internal quotation marks omitted).
Hearing on Remand
evidentiary hearing was held on 3 October and 2 November 2005
before Judge Grant. Defendant and his trial counsel,
Smallwood and High, were all present. The trial court had
determined it was in defendant's best interest to have
new counsel for the hearing and appointed Jack Warmack to
had previously represented Telly Swain, a co-defendant
charged with Bennett's murder. The State eventually
dropped the first-degree murder charge as part of a plea
agreement in which Swain pleaded guilty on two lesser
offenses and agreed "to testify truthfully against any
co-defendant upon request by the State." On
Warmack's advice, Swain also gave a written statement to
police implicating defendant in the murder but Swain did not
testify at trial.
expressed concern over the potential conflict of interest
arising from his prior involvement in the case. He informed
defendant that he had represented Swain and contacted the
State Bar. Warmack ultimately determined he had no conflict
of interest because he viewed his role at the remand hearing
as a limited one: "I didn't think my purpose was to
establish that there were-there was no conflict, but to get
what [Smallwood] had to say about it on the record so the
Court of Appeals could determine whether in their opinion
there was a conflict or not." If his appointment had
required him to conduct his own investigation to prove that
Smallwood had an actual conflict of interest, Warmack
explained, then he himself would have been "conflicted
evidentiary hearing, Smallwood testified about her
interaction with Speller leading up to defendant's trial.
Speller had retained Smallwood's law partner, Tonza
Ruffin, to represent him on a probation violation matter and
at some point Smallwood stepped in for Ruffin to enter a plea
on defendant's behalf. Smallwood testified that the scope
of her representation in the matter lasted "maybe five
or ten minutes." During that time, Smallwood did not
speak to Speller about defendant's case. She insisted
"there was nothing as a result of my representation of
[Speller] that I would have obtained regarding
[defendant]." Smallwood explained that the conversation
with Speller which she alluded to at trial "took place
from an investigatory standpoint" after her
representation of Speller and incident to her preparation for
a recess of the hearing, Judge Grant spoke with the deputy
clerk of court about the dates of Speller's probation
violation matter. The records indicated that Speller was
served with an order of arrest on 18 July 2002 and he
appeared in court for a hearing on 26 September 2002. Ruffin
was listed as the attorney of record but Smallwood had
represented Speller at the hearing. Smallwood was appointed
to represent defendant on 14 May 2001.
trial court entered an order on 28 November 2005 following
the evidentiary hearing. In its order, the trial court found:
12.That Ms. Smallwood never spoke with Derrick Speller about
his case prior to September 26, 2002 and only spoke with him
five or ten minutes prior to the violation hearing.
13.That Attorney Smallwood during her five to ten-minute
conversation with Derrick Speller never spoke with Derrick
Speller concerning any matter relating to her representation
of Terrence Hyman.
14. During her five to ten-minute conversation with Derrick
Speller Attorney Smallwood did not obtain any information for
or about Derrick Speller that she could have used to impeach
or attack Derrick Speller's credibility as a witness
during the trial of the defendant Terrence Hyman.
court ultimately concluded that Smallwood's
representation of defendant was not adversely affected by her
previous representation of Speller.
Second Appeal: Hyman II
appealed the order to the North Carolina Court of Appeals,
arguing that the trial court erred in concluding
Smallwood's prior representation of Speller did not
adversely affect her representation of defendant. State
v. Hyman (Hyman II), No. COA06-939, 2007 WL 968753, at
*3 ( N.C. Ct. App. Apr. 3, 2007). The Court affirmed the
order because the uncontested findings showed, inter
alia, that there was no overlap of representation, and
that during her representation of Speller, Smallwood did not
obtain any information about defendant from Speller that she
could have used to impeach him at ...