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State v. Hyman

Court of Appeals of North Carolina

February 21, 2017

STATE OF NORTH CAROLINA
v.
TERRENCE LOWELL HYMAN, Defendant.

          Heard in the Court of Appeals 5 October 2016.

         Appeal 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 State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant.

          ELMORE, Judge.

         On 16 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.

         We 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.

         I. Background

         On 30 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.

         At 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.

         Speller 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 air.

         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 casings.

         At the 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.

         D. Pugh 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.

         Derrick Speller's Cross-Examination

         When 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.

         Smallwood 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.

         First Appeal: Hyman I

         After 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).

         Evidentiary Hearing on Remand

         The 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 represent him.

         Warmack 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.

         Warmack 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 out."

         At the 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 defendant's trial.

         During 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.

         The 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.

         The court ultimately concluded that Smallwood's representation of defendant was not adversely affected by her previous representation of Speller.

          Second Appeal: Hyman II

         Defendant 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 ...


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