IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-398
Filed: 21 February 2017
Bertie County, No. 01 CRS 54023
STATE OF NORTH CAROLINA
v.
TERRENCE LOWELL HYMAN, Defendant.
Appeal by defendant from order entered 12 May 2015 by Judge Cy A. Grant in
Bertie County Superior Court. Heard in the Court of Appeals 5 October 2016.
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.
STATE V. HYMAN
Opinion of the Court
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.
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Opinion of the Court
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.”
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Opinion of the Court
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.”
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Opinion of the Court
“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
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Opinion of the Court
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.
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Opinion of the Court
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
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Opinion of the Court
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.
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Opinion of the Court
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 trial.
Id. at *4–5. The North Carolina Supreme
Court denied defendant’s petition for writ of certiorari. State v. Hyman,
362 N.C.
685,
671 S.E.2d 325 (2008).
Writ of Habeas Corpus in U.S. District Court
Defendant filed a petition for writ of habeas corpus in the U.S. District Court
for the Eastern District of North Carolina pursuant to 28 U.S.C. § 2254. See Hyman
v. Beck, No. 5:08-hc-02066-BO (E.D.N.C. Mar. 31, 2010). Defendant maintained that
his Sixth Amendment right to effective assistance of conflict-free counsel was
violated. The state court’s decision to the contrary, he argued, was an objectively
unreasonable application of clearly established federal law to the facts of his case.
Granting defendant’s petition, the court first concluded that defendant had
exhausted “his state remedies for purposes of § 2254 because the North Carolina
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Opinion of the Court
Court of Appeals [and] the North Carolina Supreme Court were given a ‘full and fair
opportunity’ to consider the substance of his claim.” The court focused its substantive
discussion on whether Smallwood had a conflict of interest in that she could have
served as a material witness at defendant’s trial and, in her role as counsel, her
questions on cross-examination could not be considered evidence. The attorney-client
privilege, the court noted, was not at issue because the lower court found that
Smallwood did not obtain any information from Speller about defendant during her
representation of Speller.
Guided by Cuyler v. Sullivan, 446 U.S. 335 (1980), the court concluded that
defendant was entitled to relief and vacated his conviction. The court explained that
Smallwood “became a material witness with a conflict of interest” when Speller
“testified in direct contravention to a conversation she had with him and for which
she had taken contemporaneous notes.” Smallwood ignored that her testimony “may
have changed the outcome of trial” and chose instead “to continue as counsel in light
of the need to testify herself and proffer impeaching testimony.” Because
“Smallwood’s actual conflict of interest adversely affected her performance,”
defendant was denied his Sixth Amendment right to effective assistance of conflict-
free counsel and any contrary conclusion by the state courts “was an objectively
unreasonable application of clearly established federal law to the facts of his case.”
Appeal to the U.S. Court of Appeals for the Fourth Circuit
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STATE V. HYMAN
Opinion of the Court
The State appealed the district court’s order granting the writ of habeas
corpus, contesting both the substance and procedural posture of defendant’s Sixth
Amendment claim in federal court. Hyman v. Keller, No. 10-6652, 2011 WL 3489092,
at *8 (4th Cir. Aug. 10, 2011). The State argued that defendant “procedurally
defaulted federal review” because he “did not fairly raise the exculpatory witness
component in the North Carolina courts.”
Id. at *8–9. The Fourth Circuit agreed
that defendant had failed to exhaust his federal claim:
[N]either the Court of Appeals nor the Supreme Court of
North Carolina has directly confronted the procedural or
substantive propriety of the exculpatory witness
component. Instead, the court of appeals decisions in
Hyman I and Hyman II each focused on the dual
representation conflict issue, and the state supreme court
summarily denied Hyman’s petition for certiorari.
Unfortunately, the basis for the North Carolina courts’ lack
of attention to the exculpatory witness conflict is unclear—
perhaps they did not consider that component of Hyman’s
Sixth Amendment claim to be fairly presented, perhaps
they meant to implicitly reject it on the merits, or perhaps
they simply overlooked it.
Id. at *9–10. In reaching its disposition, the Fourth Circuit explained that dismissing
without prejudice “mixed” habeas petitions, i.e., those involving both exhausted and
unexhausted constitutional claims, “is no longer a feasible option for a federal court,
in that the § 2254 petition could ultimately be adjudged time-barred under [the
Antiterrorism and Effective Death Penalty Act of 1996].” Id. at *10. The court
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Opinion of the Court
decided, based on the unusual circumstances of the case, “to employ the ‘stay and
abeyance procedure’ approved by the Supreme Court in connection with unexhausted
§ 2254 claims.” Id. (citing Rhines v. Weber, 544 U.S. 269, 275–78 (2005)). Accordingly,
the court stayed the appeal “to provide the North Carolina courts with an opportunity
to weigh in on the procedural and substantive issues.” Id. at *11.
Motion for Appropriate Relief
After the Fourth Circuit’s decision, defendant filed a motion for appropriate
relief (MAR) in Bertie County Superior Court. In defendant’s first and principal
claim, characterized by the trial court as “Claim 1,” he argued that his “Sixth
Amendment right to effective, conflict-free counsel was violated because one of his
trial attorneys was also a crucial defense witness who did not testify due [to] her
conflict as his attorney.” He separated his claim further into three components,
maintaining that each independently entitled him to relief: (a) “Smallwood had a
conflict between her duties to her former client, the State’s witness, and her duties to
[defendant] (‘the prior representation component’)”; (b) “Smallwood had a conflict in
that she was a critical witness for [defendant] but could not testify because she was
his attorney (‘the witness component’)”; and (c) “there was a conflict between
[defendant’s] interest in having Smallwood withdraw and present impeachment
evidence against a key State’s witness and Smallwood’s own financial interest in
remaining on [defendant’s] case (‘the financial component’).”
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STATE V. HYMAN
Opinion of the Court
An evidentiary hearing for defendant’s MAR was held on 3 June 2014 before
Judge Grant in Hertford County Superior Court.1 Defendant was present,
represented by attorneys Mary Pollard and Nicholas C. Woomer-Deters, and offered
testimony from W. Hackney High, defendant’s trial counsel; Tonza Ruffin,
Smallwood’s law partner; Andrew Warmack, defendant’s counsel from the
evidentiary hearing; and Ravi Manne, an attorney with North Carolina Prisoner
Legal Services. Despite his efforts, defendant was unable to produce Smallwood as a
witness. Smallwood was disbarred almost three and a half years after defendant’s
trial for separate misconduct and had since left the state.
Ruffin’s testimony tended to authenticate Smallwood’s notes and confirm
Smallwood’s purported conversation with Speller. Prior to defendant’s trial, Ruffin
was “under the impression that [Derrick] Speller had information that would be
helpful to the case.” She was familiar with Smallwood’s handwriting and identified
the notes dated 20 November 2001 with Speller’s name at the top as those written by
Smallwood. She did not remember being present when the notes were written but
she was present when Speller and Smallwood met in the parking lot of her law office:
A. I remember him coming having [sic] a conversation. I
remember believing that he was going to be helpful to Ms.
Smallwood. But I don’t remember the exact conversation.
THE COURT: Do you remember anything Teresa may
have said to you after he left about what he may have said?
1The State and defendant had both consented to a change of venue from Bertie County to Hertford
County.
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Opinion of the Court
A. Yes.
THE COURT: Go ahead.
A. I remember him—I mean, I remember Teresa saying
that he claimed that he saw everything. I remember him—
I don’t remember her seeking him out. I remember him
seeking her out saying that basically I can help you; I was
there that night; I saw everything that went down.
BY MS. ASBELL:
Q. And that’s your memory of what Ms. Smallwood told
you?
A. That’s my memory of what Ms. Smallwood told me and
that’s my memory of his attitude when he was in the
parking lot that day. But I can’t tell you verbatim what he
said in the parking lot. But he definitely wanted to be
helpful in the case.
Ruffin later testified that Speller “came over on other occasions” but she did not
participate in those meetings.
During Ruffin’s cross-examination, the State presented a copy of Smallwood’s
time sheet, which showed no entry for 20 November 2001 and no entry for an
interview of Derrick Speller. (There was a 30 November 2001 entry for “file review,
witness interview.”) Ruffin confirmed that attorneys submit their time sheets with
Indigent Defense Services (IDS) to be paid and agreed that Smallwood’s entries were
otherwise “very specific.” But when asked if she would list “every single thing that
you do” for a client, Ruffin replied, “We try to but a lot of times we don’t.” Later at
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Opinion of the Court
the hearing, Manne offered his own opinion about the time sheets: “I don’t know that
I would view the time sheets as controlling. I know for my time keeping [ ] I don’t put
everything on the exact date at the same time.”
High testified about his professional relationship with Smallwood and how the
events involving Speller unfolded at trial. High and Smallwood had some problems
when they first began working on defendant’s case. There was even an occasion when
Smallwood attempted to have High removed as co-counsel but they “were able to put
that aside” and work together “fairly well” from that point forward. Prior to trial,
High had some indication that Speller would testify against defendant. Because
Speller never provided a written statement to police, however, High did not know
“specifically what [Speller] was going to say.”
High and Smallwood initially agreed that High would cross-examine Speller if
the State called him as a witness. High explained that they had divided the witness
list in a way “that would even out the work” but if Smallwood “had a particular
knowledge of a witness or what their style was she might say well it’s better for me
to handle this one, why don’t you get the next one.” That plan changed in a “spur of
the moment decision” when Smallwood revealed to High that she had previously
spoken to Speller. High testified:
We do our best to anticipate the witness order that the
state will call the witnesses in. But you never know for
sure and so it’s always a crapshoot until you actually hear
the District Attorney say the next witness who will be
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Opinion of the Court
called will be so and so.
So when [Derrick] Speller’s name was called as the next
witness in that manner, Ms. Smallwood kind of leaned over
to me and said don’t worry about this one, I’ve got it.
High recalled Smallwood leaving court during recess and returning from her office
with several documents. She told High that she had notes from a prior conversation
with Speller, and she would use her notes to impeach Speller on cross-examination.
The trial court also heard arguments at the hearing on the admissibility of
Smallwood’s testimony had it been offered at trial. The State argued that
Smallwood’s testimony would not have been admissible because once Speller denied
the conversation, Smallwood was “stuck” with his answer and could not introduce
extrinsic evidence as to what Speller allegedly told her. And even if she had
withdrawn to take the stand, the extent of her permissible testimony would have
been: “[Derrick] Speller told me something different than what he testified to.”
Defendant, in response, argued that Smallwood’s testimony would have been
admissible because it went to a material fact in issue, i.e., the identity of the shooter.
After the hearing, the trial court notified the parties in writing that it would
enter an order denying defendant’s MAR. As the sole basis for its denial, the court
concluded that “Smallwood could not have testified about Derrick Speller’s prior
inconsistent statement to her, and introduced her notes or the conversation where he
made that statement, after Derrick Speller denied making the statement on cross-
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Opinion of the Court
examination.” The court thereafter adopted a forty-five-page order, prepared by the
State, denying all claims within defendant’s MAR.
Notably, the trial court made the following findings in its order regarding the
alleged conversation between Smallwood and Speller:
32. Defendant presented no credible evidence that the
conversation which Ms. Smallwood claimed she had with
Speller ever took place.
33. Defendant presented no credible evidence that
Defendant’s MAR Exhibit 1 contained, as he purported,
notes taken contemporaneously with any conversation
between Ms. Smallwood and Speller.
34. Defendant presented no credible evidence that the
purported conversation between Ms. Smallwood and
Speller took place on the date appearing on Defendant’s
MAR Exhibit 1, i.e., November 20, 2001.
35. Given the evidence presented at the MAR evidentiary
hearing, the Court cannot definitely find based only upon
Defendant’s MAR Exhibit 1 and Ms. Smallwood’s cross-examination of Speller at Defendant’s trial that Ms.
Smallwood wrote the notes admitted as Defendant’s MAR
Exhibit 1 contemporaneously with any conversation she
had with Speller; that the purported conversation took
place on the date appearing on the exhibit, i.e., November
20, 2001; or that the conversation ever took place.
Although the court recognized the significance of Ruffin’s testimony at the hearing,
evidence that Smallwood’s time sheet contained no entry for 20 November 2001 and
that High did not learn about the conversation until trial both indicated to the court
that the conversation never took place.
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Opinion of the Court
Regarding defendant’s Claim 1(b) (the “exculpatory witness claim”), the trial
court concluded that defendant’s claim was procedurally barred under N.C. Gen.
Stat. § 15A-1419(a) and, alternatively, without merit. Applying the standard set
forth in Strickland, 466 U.S. at 687, the court concluded that defendant could
demonstrate neither deficient performance nor prejudice based upon Smallwood’s
failure to withdraw and testify as a witness. And to the extent Sullivan,
446 U.S. at
350, applied to defendant’s exculpatory witness claim, the court concluded that the
claim was still meritless because he “failed to present evidence establishing that any
actual conflict of interest existed which had an adverse effect on Ms. Smallwood’s
representation of defendant.”
Defendant filed a petition for writ of certiorari, which we allowed, seeking
review of the trial court’s order denying his MAR. Defendant contends that (1) he
was not procedurally barred from raising the exculpatory witness claim and,
alternatively, any failure to properly assert the claim in Hyman I was due to
ineffective assistance of appellate counsel; (2) he was not procedurally barred from
raising the dual representation claim and, alternatively, any failure to properly
assert the claim in Hyman II was due to ineffective assistance of counsel owing to
Warmack’s conflict of interest; (3) the trial court’s material factual findings were
entered pursuant to an incorrect evidentiary standard and are not supported by the
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evidence; and (4) defendant was denied his right to effective assistance of counsel and
is entitled to relief under Sullivan or, alternatively, under Strickland.
II. Discussion
We review the trial court’s rulings on motions for appropriate relief “to
determine ‘whether the findings of fact are supported by evidence, whether the
findings of fact support the conclusions of law, and whether the conclusions of law
support the order entered by the trial court.’ ” State v. Frogge, 359 N.C. 228, 240,
607
S.E.2d 627, 634 (2005) (quoting State v. Stevens,
305 N.C. 712, 720,
291 S.E.2d 585,
591 (1982)). The trial court’s findings of fact “are binding on appeal if they are
supported by competent evidence.” State v. Morganherring,
350 N.C. 701, 714,
517
S.E.2d 622, 630 (1999). The trial court’s conclusions of law, however, “ ‘are fully
reviewable on appeal.’ ” State v. Lutz,
177 N.C. App. 140, 142,
628 S.E.2d 34, 35
(2006) (quoting State v. Wilkins,
131 N.C. App. 220, 223,
506 S.E.2d 274, 276 (1998)).
A.
We first address whether the trial court erred in applying a procedural bar to
defendant’s exculpatory witness claim.
N.C. Gen. Stat. § 15A-1419(a) (2015) provides four grounds for the denial of a
motion for appropriate relief, including: “Upon a previous appeal the defendant was
in a position to adequately raise the ground or issue underlying the present motion
but did not do so.” N.C. Gen. Stat. § 15A-1419(a)(3). Where such grounds exist, the
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Opinion of the Court
trial court must deny the motion unless the defendant can show (1) “good cause for
excusing the grounds for denial” and “actual prejudice resulting from the defendant’s
claim”; or that (2) the “failure to consider the defendant’s claim will result in a
fundamental miscarriage of justice.” N.C. Gen. Stat. § 15A-1419(b) (2015).
The statute clarifies that “good cause” exists only where “the defendant
establishes by a preponderance of the evidence that his failure to raise the claim or
file a timely motion was,” among other reasons, due to “ineffective assistance of trial
or appellate counsel.” N.C. Gen. Stat. § 15A-1419(c)(1) (2015). And to demonstrate
“actual prejudice,” the defendant must show “by a preponderance of the evidence that
an error during the trial or sentencing worked to the defendant’s actual and
substantial disadvantage, raising a reasonable probability, viewing the record as a
whole, that a different result would have occurred but for the error.” N.C. Gen. Stat.
§ 15A-1419(d) (2015). Finally, the trial court’s failure to consider the otherwise
barred claim results in “a fundamental miscarriage of justice” only if “[t]he defendant
establishes that more likely than not, but for the error, no reasonable fact finder
would have found the defendant guilty of the underlying offense.” N.C. Gen. Stat. §
15A-1419(e)(1) (2015).
The trial court concluded that defendant’s claim was procedurally barred
under N.C. Gen. Stat. § 15A-1419(a)(3). In the record on appeal in Hyman I,
defendant included the following assignment of error:
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Opinion of the Court
10. Defendant was denied the assistance of counsel because
his attorney failed to withdraw from representation when
it became apparent that she had a conflict of interest.
The trial court viewed defendant’s tenth assignment of error as “a clear indication
that defendant contemplated arguing an ineffective assistance of counsel claim based
upon Ms. Smallwood’s failure to withdraw and testify.” In his appellate brief,
however, defendant “did not identify what he is now squarely raising in Claim 1(b)
as a ground for reversal on appeal.” While “defendant made references in the body of
his brief to Ms. Smallwood’s failure to withdraw and testify,” he did so under the
following assignment of error: “The trial court erred in failing to conduct a hearing
when the court became aware of a conflict of interest on the part of one of defendant’s
attorneys who had previously represented Derrick Speller, one of the State’s
witnesses.” The trial court concluded, therefore, that defendant’s claim was
procedurally barred because he was in a position to adequately raise his claim in
Hyman I but failed to do so. The court further concluded that because defendant’s
claim was meritless, “the procedural bar has not been excused pursuant to N.C.G.S.
§ 15A-1419(b) by showing good cause and actual prejudice, or that a fundamental
miscarriage of justice would occur for this Court’s failure to review the barred claim.”
An examination of defendant’s “references” to the exculpatory witness claim
within his first appellate brief, alluded to by the trial court, reveals the extent to
which defendant attempted to raise the claim on appeal in Hyman I:
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Opinion of the Court
Defense counsel Smallwood had a conflict of interest in
that she was in possession of information which could be
used to impeach Derrick Speller, one of the State’s most
crucial witnesses. This information consisted of
statements he made to her implicating Demetrius Jordan
and exonerating Defendant, which directly contradicted
his testimony at trial. Although she chose to remain as
counsel and used the information she acquired in her
representation of Speller to impeach his testimony, rather
than withdrawing as counsel and testifying as a witness, it
is not at all clear that this was the correct decision. It is
certainly arguable that the information she had to impart
would have carried more weight had she been on the stand
testifying under oath. Nor is it clear that Defendant was
aware of the conflict and had acquiesced in counsel’s
actions.
Reviewing defendant’s brief with the benefit of hindsight, it would have been more
helpful had defendant argued his claim pursuant to the tenth assignment of error.
Nevertheless, the foregoing excerpt from his brief and a fair reading of the cases cited
for support therein, see, e.g., State v. Green, 129 N.C. App. 539, 551–52,
500 S.E.2d
452, 459–60 (1998) (holding that trial court properly conducted an inquiry into
conflict of interest owing to counsel’s decision not to pursue line of questioning which
could have required counsel himself to withdraw and testify), indicates that the Court
could have addressed the claim as it was presented despite the formerly rigid rule of
appellate procedure requiring assignments of error. While perhaps unartfully,
defendant adequately raised the exculpatory witness claim when he was first in a
position to do so. That the issue was never explicitly addressed thereafter—for
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STATE V. HYMAN
Opinion of the Court
whatever reason—should not bar defendant’s claim under N.C. Gen. Stat. § 15A-
1419(a), and the trial court erred in concluding otherwise.
B.
Next, we address defendant’s challenge to the trial court’s material factual
findings regarding the conversation between Smallwood and Speller.
The trial court found that defendant offered no credible evidence at the MAR
hearing that Smallwood transcribed the handwritten notes contemporaneously with
any conversation she had with Speller, that the purported conversation took place on
20 November 2001, or that the conversation ever took place. Based solely upon
Smallwood’s notes and her cross-examination of Speller at trial, the court also could
not “definitely find” any of the foregoing had occurred, implying that Smallwood
fabricated the evidence at trial. Relying on these findings, the court concluded that
there was no evidence to support defendant’s exculpatory witness claim.
At an evidentiary hearing on a motion for appropriate relief, “the moving party
has the burden of proving by a preponderance of the evidence every fact essential to
support the motion.” N.C. Gen. Stat. § 15A-1420(c)(5) (2015) (emphasis added). As
defendant points out, therefore, he was not required to “definitely” prove that
Smallwood transcribed the handwritten notes contemporaneously with any
conversation she had with Speller, that the purported conversation took place on 20
November 2001, or that the conversation ever took place. More importantly, that the
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STATE V. HYMAN
Opinion of the Court
court was unable to “definitely find” any of the foregoing occurred is not dispositive
of defendant’s exculpatory witness claim.
It is undisputed that, at the time of defendant’s trial, Smallwood possessed
evidence tending to show that Speller made a prior inconsistent statement concerning
the identity of the shooter. The exculpatory witness claim raised in defendant’s MAR
was whether Smallwood’s failure to withdraw and testify as to that alleged prior
inconsistent statement constitutes ineffective assistance of counsel. Evidence that
Smallwood was privy to a conversation in which Speller identified the shooter as
someone other than defendant would have been both relevant and material had it
been offered at trial. Admissibility is, of course, a separate issue but one that does
not depend upon a preliminary finding by the court that a witness’s testimony is
credible. See N.C. Gen. Stat. § 8C-1, Rule 104(e) (2015) (“This rule does not limit the
right of a party to introduce before the jury evidence relevant to weight or
credibility.”).
If otherwise competent, therefore, Smallwood’s testimony would have been
admissible and within the purview of the jury to assign weight and credibility thereto.
See State v. Scott, 323 N.C. 350, 353,
372 S.E.2d 572, 575 (1988) (“The credibility of
the witnesses and the weight to be given their testimony is exclusively a matter for
the jury.” (citing State v. Wilson,
293 N.C. 47,
235 S.E.2d 219 (1977))); State v.
Gamble, ___ N.C. App. ____, ____,
777 S.E.2d 158, 165 (Oct. 6 2015) (No. COA15-71)
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STATE V. HYMAN
Opinion of the Court
(“The witness’s credibility is a matter for the court when the only testimony justifying
submission of the case to the jury is inherently incredible and in conflict with [the
proponent’s] own evidence.” (citations and internal quotation marks omitted)). The
jury could have believed Smallwood’s testimony, in which case her failure to
withdraw and testify would tend to support defendant’s claim for ineffective
assistance of counsel. Because the trial court’s findings were not germane to the
adjudication of defendant’s exculpatory witness claim, they do not support its
conclusion that defendant’s claim is meritless for lack of evidentiary support.
C.
Next, we address the substance of defendant’s exculpatory witness claim and
his challenge to the trial court’s conclusions that he received effective assistance of
counsel despite Smallwood’s failure to withdraw and testify at trial.
Defendant maintains that he received ineffective assistance of counsel due to
Smallwood’s failure to withdraw as counsel and testify as to Speller’s alleged prior
inconsistent statement regarding the identity of the shooter. In her role as counsel,
Smallwood’s questions on cross-examination could not be considered evidence by the
jury. Therefore, defendant argues, when Speller denied the prior inconsistent
statement during cross-examination, Smallwood had an actual conflict of interest
between continuing as counsel or withdrawing to testify as a necessary witness.
Defendant contends that because Smallwood’s actual conflict of interest adversely
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Opinion of the Court
affected her performance as counsel, he is entitled to relief under Sullivan, 446 U.S.
at 348. Alternatively, defendant claims he is entitled to relief under Strickland,
466
U.S. at 687, because Smallwood’s decision to remain as counsel fell below an objective
standard of reasonableness and prejudiced his defense.
A criminal defendant’s Sixth Amendment right to counsel means “the right to
the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970). Effective assistance of counsel includes a “right to representation that is free
from conflicts of interest.” Wood v. Georgia,
450 U.S. 261, 271 (1981) (citations
omitted). In counsel’s role, he or she owes the client a duty of loyalty, which is
“perhaps the most basic of counsel’s duties.” Strickland,
466 U.S. at 688, 692.
To prevail on a claim of ineffective assistance of counsel, a defendant typically
must show that “counsel’s performance was deficient” and “the deficient performance
prejudiced the defense.” Id. at 687; see also State v. Braswell,
312 N.C. 553, 562–63,
324 S.E.2d 241, 248 (1985) (adopting the standard set forth in Strickland to review
claims of ineffective assistance of counsel under the North Carolina Constitution).
The U.S. Supreme Court has applied a different standard, however, to review claims
of ineffective assistance of counsel based upon a conflict of interest. Sullivan, 446
U.S. at 349–50. Under Sullivan, a defendant who “shows that his counsel actively
represented conflicting interests” and that “conflict of interest actually affected the
adequacy of his representation need not demonstrate prejudice in order to obtain
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STATE V. HYMAN
Opinion of the Court
relief.” Id.; see also Mickens v. Taylor, 535 U.S. 162, 172–73 (2002); State v.
Choudhry,
365 N.C. 215, 219,
717 S.E.2d 348, 352 (2011). A presumption of prejudice
arises because “it is difficult to measure the precise effect on the defense of
representation corrupted by conflicting interests.” Strickland,
466 U.S. at 692.
The North Carolina Supreme Court has previously addressed whether an
attorney’s decision not to withdraw and testify as a witness for his client created an
actual conflict of interest reviewable under Sullivan rather than Strickland. In State
v. Phillips, 365 N.C. 103,
711 S.E.2d 122 (2011), the defendant moved to suppress
evidence of his confession because “he was substantially impaired from drugs and
alcohol and unable to understand the consequences of his actions when he waived his
Miranda rights.”
Id. at 109–11, 711 S.E.2d at 130–31. The police chief, Gary
McDonald, had apparently told the defendant’s attorney, Bruce Cunningham, that
the defendant was “stoned out of his mind” when he confessed to shooting four people.
Id. at 115, 117,
711 S.E.2d at 133, 134. When Cunningham confronted Chief
McDonald about the alleged statement on cross-examination and presented
handwritten notes of the conversation, Chief McDonald testified that he did not recall
making the statement.
Id. at 117–18, 711 S.E.2d at 134–35.
The defendant appealed his conviction, arguing that he was deprived of his
Sixth Amendment right to conflict-free counsel because Cunningham “failed to
withdraw and testify as a witness for defendant, depriving him of conflict-free
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STATE V. HYMAN
Opinion of the Court
counsel.” Id. at 116–17,
711 S.E.2d at 134. He claimed that “a withdrawal was
necessary because attorney Cunningham remembered Chief McDonald making
certain statements to Cunningham that Chief McDonald did not himself recall.” And
because Cunningham could not serve as both an advocate and a necessary witness at
trial, see N.C. St. B. Rev. R. Prof. Conduct 3.7 (“Lawyer as a Witness”), 2017 Ann. R.
N.C. 1242, Cunningham had an “actual conflict of interest” which entitled the
defendant to relief under Sullivan.
Id. at 117–18,
711 S.E.2d at 135. Our Supreme
Court concluded, however, that the defendant’s claim should be reviewed under
Strickland:
The applicability of the Sullivan line of cases has been
carefully cabined by the United States Supreme Court.
“The purpose of our Holloway and Sullivan exceptions from
the ordinary requirements of Strickland . . . is not to
enforce the Canons of Legal Ethics, but to apply needed
prophylaxis in situations where Strickland itself is
evidently inadequate to assure vindication of the
defendant’s Sixth Amendment right to counsel.” Here,
unlike the circumstances posited in Holloway where
counsel has been effectively silenced and any resulting
harm difficult to measure, defendant has identified the
single matter to which attorney Cunningham could have
testified had he withdrawn as counsel. Because the facts
do not make it impractical to determine whether defendant
suffered prejudice, we conclude that Strickland’s
framework is adequate to analyze defendant’s issue.
Id. at 121–22,
711 S.E.2d at 137 (quoting Mickens,
535 U.S. at 176).
Guided if not bound by Phillips, we believe Strickland provides an adequate
framework to review defendant’s exculpatory witness claim. Despite Smallwood’s
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STATE V. HYMAN
Opinion of the Court
prior representation of Speller, the record shows that the purported conversation
between Smallwood and Speller “took place from an investigatory standpoint” in
preparation for defendant’s trial. Because that conversation was outside the scope of
her representation, Smallwood would not have bound by a duty of confidentiality. By
the same token, Smallwood was not “effectively silenced” from testifying about the
conversation and the information she learned from Speller. As the facts of this case
do not “make it impractical to determine whether defendant suffered prejudice,”
Phillips, 365 N.C. at 122,
711 S.E.2d at 137, we apply Strickland’s framework to
evaluate defendant’s exculpatory witness claim.
As stated above, Strickland requires a defendant to first show that “counsel’s
performance was deficient.” Strickland, 466 U.S. at 687. To establish deficient
performance, the defendant “must demonstrate that counsel’s representation ‘fell
below an objective standard of reasonableness.’ ” Wiggins v. Smith,
539 U.S. 510, 521
(2003) (quoting Strickland,
466 U.S. at 688); see also State v. Allen,
360 N.C. 297, 316,
626 S.E.2d 271, 286, cert. denied,
549 U.S. 867 (2006).
The trial court concluded that defendant could not demonstrate deficient
performance because Smallwood’s testimony would not have been admissible at trial.
And even if it would have been admissible, the court concluded, Smallwood could only
have testified that “Demet had a .380” and “[h]e shot the guy and ran out the back
door.” We disagree.
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STATE V. HYMAN
Opinion of the Court
Our common law rules have restricted the use of extrinsic evidence to impeach
the credibility of a witness. As articulated in State v. Stokes, 357 N.C. 220,
581 S.E.2d
51 (2003), a case decided prior to defendant’s murder trial, “when a witness is
confronted with prior statements that are inconsistent with the witness’ testimony,
the witness’ answers are final as to collateral matters, but where the inconsistencies
are material to the issue at hand in the trial, the witness’ testimony may be
contradicted by other testimony.”
Id. at 226,
581 S.E.2d at 55 (citing State v. Green,
296 N.C. 183, 192–93,
250 S.E.2d 197, 203 (1978)); see also 1 Kenneth S. Broun,
Brandis & Broun on North Carolina Evidence §§ 159–61 (7th ed. 2011). If the prior
inconsistent statement relates to a material matter, then it “may be proved by other
witnesses without first calling [it] to the attention of the main witness on cross-
examination.” Green,
296 N.C. at 193,
250 S.E.2d at 203 (citations omitted). If it is
collateral but tends to show bias, motive, or interest of the witness, the inquirer must
first confront the witness with the “prior statement so that he may have an
opportunity to admit, deny or explain it.” Id.; see also State v. Long,
280 N.C. 633,
639,
187 S.E.2d 47, 50 (1972). If the witness denies making the statement, “the
inquirer is not bound by the witness’s answer and may prove the matter by other
witnesses.” Green,
296 N.C. at 193,
250 S.E.2d at 203.
It cannot seriously be disputed that the identity of the shooter was a material
issue in defendant’s murder trial. Smallwood, who possessed evidence of Speller’s
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STATE V. HYMAN
Opinion of the Court
prior inconsistent statement regarding the shooter’s identity, was not bound to accept
Speller’s answers on cross-examination. Smallwood’s testimony, had it been offered,
would have been admissible to impeach Speller by showing that he had previously
identified Jordan as the shooter. And contrary to the trial court’s conclusion, we do
not believe such exculpatory evidence would have been inconsequential so as to
justify Smallwood’s failure to withdraw.
Smallwood’s testimony would have also been admissible to show Speller’s bias
or interest in the trial. Jordan was initially charged with Bennett’s murder and spent
two years in jail before he was released. Speller testified that he and Jordan
“work[ed] the same job.” After the charges against Jordan were dropped, he sent
Speller to the district attorney to offer a statement implicating defendant in the
murder. The trial court even expressed concern over this aspect of the case during
the charge conference:
I think Mr. Jordan’s credibility is at issue in this case . . . .
At least one of your witnesses—one of your very key
witnesses . . . Derrick Speller testified that he came to you
as a result of what Demetrius Jordan said to him, if I’m not
mistaken. Demetrius Jordan told him to go see you. Had
it not been for that he may not even have been involved in
the case. So the question is, why is Demetrius Jordan
running around rounding up witnesses for the State.
At the same time . . . you have a situation where the State
of North Carolina has dismissed very serious cases against
Mr. Jordan—a case of second-degree murder—and allowed
him to plea to something much less to the point where he
is now out of jail . . . .
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STATE V. HYMAN
Opinion of the Court
Speller testified at trial that he never gave a statement to police because “nobody
never asked me.” That explanation was different than what Smallwood had dictated
in her notes: “[Speller] never gave a statement to the police because he hustled for
Demet and Turnell and them niggers are lethal.”
While the admissibility of Smallwood’s testimony does not in and of itself
establish deficient performance, the circumstances surrounding her decision to
remain as counsel leads us to that conclusion. Smallwood was the only witness to
Speller’s prior inconsistent statement. Her questions to Speller could not be
considered as evidence and, after her ineffective cross-examination, she became a
necessary witness at trial with a duty to withdraw. See N.C. St. B. Rev. R. Prof.
Conduct 3.7(a) (“A lawyer shall not act as an advocate at a trial in which the lawyer
is likely to be a necessary witness . . . .”), 2017 Ann. R. N.C. 1242. Her testimony
undoubtedly related to a contested issue in the case and tended to discredit one of the
State’s two key witnesses. High could have remained as defendant’s counsel and the
court could have appointed a second attorney even if it meant declaring a mistrial.
By failing to withdraw and testify, Smallwood’s conduct fell below an objective
standard of reasonableness and was deficient under Strickland.
Next, we address whether defendant satisfied the requisite showing of
prejudice for relief under Strickland. To show prejudice, a “defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors,
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STATE V. HYMAN
Opinion of the Court
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694.
The trial court concluded that defendant could not establish prejudice in light
of Smallwood’s “effective cross-examination” of Speller, Wilson’s testimony, and the
State’s cross-examination of D. Pugh based upon his prior inconsistent statement to
law enforcement. We disagree.
If Smallwood had properly withdrawn, she could have testified that Speller,
one of only two key witnesses for the State, had previously told her that it was
Jordan—not defendant—who shot Bennett. She could have attacked Speller’s
credibility through his prior inconsistent statement and evidence of his interest in
the trial. Her testimony tended to discredit nearly half the State’s case and, in
conjunction with the testimony of L. Pugh and D. Pugh, would have provided an
evidentiary advantage to the defense.
Wilson, the only other witness to identity defendant as the shooter, had his
own credibility issues. He had testified as a State’s witness in the past and, during
defendant’s trial, revealed that he had been convicted of breaking and entering, two
counts of second-degree burglary, larceny of a firearm, larceny of a motor vehicle, four
counts of driving while license revoked, four counts of driving while impaired, two
counts of injury to property, communicating threats, assault with a deadly weapon,
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STATE V. HYMAN
Opinion of the Court
and forgery and uttering—all within the last ten years. Judge Grant even remarked
at the MAR hearing: “We all know Robert Wilson. . . . And a record like that, right,
we know him.”
The State’s cross-examination of D. Pugh also does not foreclose a showing of
prejudice. D. Pugh denied making a prior inconsistent statement to police, asserting
that when he was arrested days after the murder on unrelated charges, police gave
him a blank sheet of paper to sign and initial, which he did, and they later wrote out
a statement implicating defendant. The statement was not introduced at trial, and
despite the State’s cross-examination, D. Pugh’s testimony implicating Jordan as the
shooter would nevertheless have bolstered Smallwood’s impeachment evidence
against Speller.
Finally, we agree with defendant that, as a practical matter, Smallwood’s
testimony could have rehabilitated her own credibility as an advocate at trial, which
has been described as “[a] cardinal tenet of successful advocacy.” State v. Moorman,
320 N.C. 387, 400,
358 S.E.2d 502, 510 (1987). Even from a cold record we can tell
that Smallwood’s cross-examination was, in defendant’s own words, “disastrous.”
Speller denied her every attempt to establish that he had given a prior inconsistent
statement or that their conversation took place. His steadfast repudiation bolstered
his own credibility and impeached Smallwood’s credibility as an advocate. In a case
that came down to the credibility of the witnesses, there is a reasonable probability
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STATE V. HYMAN
Opinion of the Court
that, had Smallwood withdrawn and testified as to Speller’s prior inconsistent
statement, the result would have been different.
III. Conclusion
We conclude that defendant was denied his right to effective assistance of
counsel based upon Smallwood’s failure to withdraw and testify as a necessary
witness at trial. Because defendant is entitled to relief under Strickland on his
exculpatory witness claim, we need not address his remaining arguments to this
Court. The trial court’s order denying his MAR is reversed.
REVERSED.
Judge HUNTER, JR. concurs.
Judge DILLON dissents by separate opinion.
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No. COA16-398 – STATE v. HYMAN
DILLON, Judge, dissenting.
My vote is to affirm Judge Grant’s order denying Defendant’s motion for
appropriate relief (“MAR”). Therefore, I respectfully dissent.
Defendant was charged with the murder of Ernest Bennett, who was shot and
killed at a nightclub. At Defendant’s trial, the State’s evidence included the
testimony of two eyewitnesses, both of whom stated that they saw Defendant shoot
the victim. Defendant’s evidence included the testimony of an eyewitness who stated
that he saw another man, Demetrius Jordan, shoot the victim. The jury found
Defendant guilty, and Defendant’s conviction was upheld by this Court in a prior
appeal.
More recently, Defendant filed an MAR for a new trial. Defendant’s MAR was
denied by the trial court, and Defendant appealed.
Defendant’s arguments at his MAR hearing and on appeal concern an alleged
conversation that one of Defendant’s attorneys, Teresa Smallwood, had with one of
the State’s witnesses prior to trial. On direct, after the State witness testified that
he saw Defendant shoot the victim, he further testified that he had spoken with Ms.
Smallwood about the shooting prior to the trial. Ms. Smallwood cross-examined the
State witness about the prior conversation, suggesting during her questioning that
the State witness had told her that he had seen Demetrius Jordan, and not
Defendant, shoot the victim. Ms. Smallwood also attempted to show the State
witness her “notes” from their alleged conversation; however, the trial court did not
STATE V. HYMAN
DILLON, J., dissenting
allow her to do so. Throughout Ms. Smallwood’s cross-examination, the State witness
remained steadfast in his testimony that he saw Defendant kill the victim.
Defendant essentially argues two points in this MAR phase. First, he makes
an “exculpatory witness claim,” contending that Ms. Smallwood should have
withdrawn and then offered testimony to impeach the testimony of the State witness.
Second, he makes an ineffective assistance of counsel (“IAC”) claim, contending that
Ms. Smallwood should have withdrawn and testified and that his appellate attorney
failed to argue this point in the first appeal.
I. Exculpatory Witness Claim
The State contends that Defendant’s exculpatory witness claim is procedurally
barred because the claim could have been raised in Defendant’s prior appeal. The
majority concludes that Defendant did raise this claim, though inartfully, in his
appellate brief in the prior appeal. However, our Court apparently did not recognize
that the claim was being argued in the prior appeal, as our Court did not address the
claim in its opinion.
My view is that Defendant’s exculpatory witness claim is barred in either case.
That is, if Defendant’s “inartful” brief failed to make an exculpatory witness claim,
then Defendant is procedurally barred because he could have raised it. Alternatively,
if Defendant’s brief did raise an exculpatory witness claim, Defendant is still
procedurally barred because he failed to raise it through a petition for rehearing to
2
STATE V. HYMAN
DILLON, J., dissenting
this Court following the issuance of our prior opinion, which ostensibly ignored his
claim. Our Appellate Rule 31 provides that a party may file a petition for rehearing
after an opinion to argue “the points of fact or law that, in the opinion of the
petitioner, the [Court of Appeals] overlooked or misapprehended and shall contain
such argument in support of the petition as petitioner desires to present.” N.C. R.
App. P. 31. However, Defendant did not petition this Court for rehearing to consider
his exculpatory witness claim that he now contends we overlooked.
Defendant argues that he was still entitled to have his exculpatory witness
claim reviewed in an MAR hearing, notwithstanding that he could have raised it in
the prior appeal. Specifically, he contends that the trial court’s failure to review his
claim resulted in a fundamental miscarriage of justice. We disagree.
Here, Defendant has failed to establish that “more likely than not, but for the
error, no reasonable fact finder would have found the defendant guilty of the
underlying offense[.]” N.C. Gen. Stat. § 15A-1419(e)(1). As discussed more fully in
the IAC section below, Defendant did not present evidence to show exactly what Ms.
Smallwood would have said had she taken the stand. Even if she had testified that
she remembered the State witnesss informing her that he did not see Defendant shoot
the victim, I believe that it still would not have been unreasonable for the jury to
convict. The jury could have lent very little weight to Ms. Smallwood’s testimony; see
Ward v. Carmona, 368 N.C. 35, 37,
770 S.E.2d 70, 72 (2015) (“The function of the jury
3
STATE V. HYMAN
DILLON, J., dissenting
is to weigh the evidence and determine the credibility of any witnesses.”); for
instance, her timesheets do not reflect that she had any interaction with the State
witness on the day that her “notes” indicate that she met with him. In addition, the
testimony of the State witness was corroborated by the testimony of another
eyewitness.
II. Ineffective Assistance of Counsel Claim
I do not believe that the trial court erred in its conclusion regarding
Defendant’s IAC claims. Defendant failed to present evidence at the MAR hearing to
show a reasonable probability that a different result would have occurred had Ms.
Smallwood withdrawn and then attempted to testify or had his appellate counsel filed
a petition for rehearing with this Court to consider his exculpatory witness claim.
To establish reasonable probability, it was Defendant’s burden at the MAR
hearing to show exactly what the substance of Ms. Smallwood’s testimony would have
been. Otherwise, it is impossible on review to determine whether Ms. Smallwood’s
testimony would have been admissible and what impact it might have had. But as
Judge Grant points out in his Order, Defendant did not present Ms. Smallwood as a
witness at the MAR hearing. No one else testified at the MAR hearing with any detail
as to what Ms. Smallwood would have stated had she been allowed to take the stand.
There is no competent evidence in the record to demonstrate that Ms. Smallwood had
any independent recollection that the State witness told her that he saw someone
4
STATE V. HYMAN
DILLON, J., dissenting
other than Defendant kill the victim or whether her “notes” from the alleged
conversation would have refreshed her memory. It may be that Ms. Smallwood would
have offered admissible, persuasive testimony to impeach the State witness.
However, Defendant simply failed to meet his burden of proof to show as much at the
MAR hearing.
At the MAR hearing, Defendant did offer a copy of the “notes” which Ms.
Smallwood attempted to show the State witness at trial. However, these notes are
not admissible to show how Ms. Smallwood might have testified. The notes do not
suggest that the State witness told Ms. Smallwood that he saw Demetrius Jordan fire
the fatal shot. Rather, the notes suggest, at best, that the State witness told Ms.
Smallwood that he did not see who fired the fatal shot, after Demetrius Jordan had
fled the scene.2
I conclude that Judge Grant’s conclusions are supported by his findings.
Accordingly, my vote is to affirm the trial court’s order.
2 The State stresses that Judge Grant found that Defendant, at the MAR hearing, failed to
produce any credible evidence that the alleged conversation between Ms. Smallwood and the State
witness ever took place. However, I do not view as relevant whether Judge Grant believed the
conversation took place. Rather, what is relevant is how Ms. Smallwood would have testified
concerning the alleged conversation, leaving it to the jury to make any credibility determination
regarding what, if anything, the State witness told Ms. Smallwood prior to trial.
5
