State v. Hyman, No. COA04-1058 (NC 8/2/2005)

• Decision Date: 02 August 2005
• Docket Number: No. COA04-1058,COA04-1058
• Court: North Carolina Supreme Court
• Parties: STATE OF NORTH CAROLINA v. TERRENCE LOWELL HYMAN

Page 1

Unpublished Opinion

STATE OF NORTH CAROLINA v. TERRENCE LOWELL HYMAN

No. COA04-1058

Court of Appeals of North Carolina.

Filed August 2, 2005.

This case not for publication

Bertie County No. 01CRS050423.

Appeal by defendant from judgment entered 16 September 2003 by Judge Cy A. Grant, Sr. in Superior Court, Bertie County. Heard in the Court of Appeals 13 April 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Diane A. Reeves, for the State.

Winifred H. Dillon for defendant-appellant.

McGEE, Judge.

Terrence Lowell Hyman (defendant) was indicted on 30 July 2001 for the first degree murder of Ernest Lee Bennett, Jr. (Bennett). Defendant was convicted by a jury on 12 September 2003. The trial court sentenced defendant to life imprisonment without parole. Defendant appeals.

The State's evidence at trial tended to show that Bennett arrived at the L&Q Social Club, a nightclub on Route 17 North in Bertie County, at about 10:00 p.m. on 5 May 2001. Bennett arrived at the nightclub with his brother Alton, Tyrone Knight (Knight) and Shelton Gilliam (Gilliam).

Bennett began arguing with an individual inside the nightclub between 1:00 a.m. and 2:00 a.m. on 6 May 2001. A crowd gathered and began to attack Bennett with bottles and chairs. Knight observed a man enter the nightclub with a .380 caliber handgun. As Knight ran from the nightclub, he heard four to five shots. Knight returned to the nightclub to look for Gilliam and Bennett. Gilliam was lying next to a truck in the parking lot and Bennett was lying in front of the nightclub, surrounded by a group of people. Knight observed a bullet hole in Bennett's head.

Robert Wilson (Wilson) testified that he saw defendant on the dance floor at the nightclub. Wilson later left the nightclub; while he was sitting in his truck, Wilson saw defendant enter the nightclub with a .380 caliber handgun in his left hand. A few seconds later, Wilson heard two gunshots. Wilson saw Bennett run out of the nightclub, saw someone hit Bennett in the head with a bottle, and saw Bennett fall to the ground. Wilson testified that he then watched defendant exit the nightclub and shoot Bennett four times as Bennett was lying on the ground.

Derrick Speller (Speller) also testified that he saw defendant enter the nightclub with a gun. Speller testified that defendant shot at Bennett, and Bennett ran for the door. Defendant continued to shoot at Bennett. Speller left the nightclub and saw defendant kneeling on the ground next to Bennett. Speller saw defendant shoot Bennett again. Speller also observed Demetrius Jordan (Jordan) shooting a gun into the air.

Lloyd Pugh, owner of the nightclub, testified that while he was trying to break up the fight, he heard two gunshots. The owner testified that he saw defendant leave the nightclub during this time, and that defendant did not have a gun. He testified that Bennett also left the nightclub. The owner further testified that he heard more gunshots from outside, but that defendant was already back inside the nightclub, and was not armed.

Demetrius Pugh (Pugh) testified that he saw Jordan shoot Bennett inside the nightclub with a .380 caliber handgun. Pugh further testified that Jordan also shot Bennett again while Bennett ran for the door of the nightclub and twice when Bennett was outside. Pugh then saw Jordan retrieve a nine-millimeter handgun from Jordan's car and shoot Bennett one last time with the nine-millimeter gun. Pugh saw Jordan shoot the remaining rounds into the air. Pugh testified that he never saw defendant with a gun and that he observed defendant leave the nightclub through the back door. He said that when Bennett was shot inside the nightclub, defendant was not there.

Dr. Gilliland, the medical examiner, 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. Dr. Gilliland testified that either of the two wounds to Bennett's back alone would have been fatal. A bullet recovered from the wound to the right side of Bennett's back was from a .380 caliber handgun. No bullet was recovered from the wound to the left side of Bennett's back.

Law enforcement recovered two .380 caliber casings from inside the nightclub. Officers also found two .380 caliber unfiredbullets, two .380 caliber fired bullets, two .380 caliber casings and six nine-millimeter caliber casings in the area outside the nightclub.

I.

Defendant first assigns error to the trial court's failure to respond to the jury's request to review the testimony of the State's witnesses. Shortly after retiring, the jury sent a note to the trial court:

THE COURT: LET THE RECORD REFLECT THAT WE ARE BACK IN SESSION. LET THE RECORD ALSO REFLECT THAT I'VE BEEN PROVIDED WITH THE PAPER WRITING FROM [THE BAILIFF]. . . .

FOR THE RECORD IT READS, REQUESTING TESTIMONY — STATE, WITH AN UNDERLINED, ROBERT WILSON, DERRICK SPELLER, LIPSCOMB, DR. GILLILAND AND CHART OF [THE NIGHTCLUB]. NOW WE CAN'T DO THAT. WE CAN'T GIVE THEM THEIR TESTIMONIES. IT'S IMPOSSIBLE FOR US TO DO THAT. I'LL TELL THEM THAT.

I CAN PROVIDE THEM WITH THE CHART OF THE [NIGHTCLUB]. I'M NOT SURE WHICH CHART THEY'RE SPEAKING OF, WE HAVE SO MANY. I GUESS WE COULD SEND THEM ALL BACK THERE SINCE THEY'VE BEEN INTRODUCED. ANY OBJECTIONS?

[ATTORNEY FOR DEFENDANT]: NO.

[ATTORNEY FOR THE STATE]: NO.

THE COURT: I'LL TELL THEM. THEY DIDN'T ASK FOR STATEMENTS, THEY ASKED FOR TESTIMONY. I THINK THEY REALLY WANT WHAT WAS SAID SO THEY CAN GO THROUGH IT AND PICK IT OUT. BUT WE CAN'T DO THAT, WE DON'T HAVE THAT CAPABILITY.

The jury returned to the courtroom and the trial court made the following statement:

THE COURT: LET ME INFORM YOU THAT WITH REGARD TO THE TESTIMONY OF ROBERT WILSON, DERRICK SPELLER, DETECTIVE LIPSCOMB AND DR. GILLILAND, I CAN'T PROVIDE THOSE TO YOU BECAUSE WE DON'T HAVE THAT CAPABILITY.

I GUESS YOU WATCH A LOT OF T.V., A LOT OF COURTROOM T.V. AS IF IT CAN BE SPIT OUT JUST LIKE THAT BUT WE CAN'T DO THAT. [THE COURT REPORTER] HERE TAKES THIS DOWN ON A TAPE RECORDER AND IT TAKES DAYS, SOMETIMES WEEKS TO ACTUALLY TYPE THAT TESTIMONY UP. SO IT CAN'T BE GIVEN TO YOU AT WILL.

. . . .

NOW THE CHART OF THE [NIGHTCLUB], I'M NOT SURE WHICH CHART YOU'RE SPEAKING OF BUT WHAT WE HAVE DECIDED TO DO IS THAT WE'RE GOING TO SEND BACK ALL THE CHARTS OF THE [NIGHTCLUB]. . . .

THE COURT: ANY OBJECTIONS TO ANYTHING I SAID TO THE JURY FROM THE STATE?

[ATTORNEY FOR THE STATE]: NO, SIR.

THE COURT: FROM THE DEFENSE?

[ATTORNEY FOR DEFENDANT] NO, SIR.

We first consider whether defendant has waived his right to appellate review of this issue since he failed to object at trial. A trial court's refusal to permit a jury to review testimony may violate the statutory mandate and is therefore a proper issue for appeal, even when a defendant has failed to object at trial. State v. Ashe, 314 N.C. 28, 40, 331 S.E.2d 652, 659 (1985). Therefore, defendant did not waive appellate review of this issue and we consider it herein.

N.C. Gen. Stat. § 15A-1233 (a) (2003) provides that:

If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence.

When a defendant contends that a trial court erred in denying a jury's request to review trial testimony, "[t]he burden is on [the] defendant to show that the [trial] court abused its discretion by acting so arbitrarily that the determination could not have been the result of a reasoned decision." State v. Corbett, 339 N.C. 313, 337, 451 S.E.2d 252, 265 (1994), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002).

A trial court does not abuse its discretion in denying a jury's request to review testimony when it is clear from the record that the trial court was aware of, and exercised, its discretion. State v. Buckner, 342 N.C. 198, 232-33, 464 S.E.2d 414, 433-34 (1995), cert. denied, 519 U.S. 828, 136 L. Ed. 2d 47 (1996); State v. Lee, 335 N.C. 244, 290, 439 S.E.2d 547, 571, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994), and cert. denied, 342 N.C. 897, 467 S.E.2d 907 (1996). In Buckner, the jury sent a note to the trial court and asked to see various items of evidence and to review the testimony of three witnesses. Buckner, 342 N.C. at 231, 464 S.E.2d at 433. The trial court denied the jury's request to review the testimony, stating: "[I]t is not possible to give you a transcribed version of testimony of any portion of the trial—of this trial's testimony. That is not feasible." Id. at 231, 464 S.E.2d at 433. The trial court did, however, permit the jury to review the various items of evidence. Id. On appeal, the defendant argued that the trial court erred by not having the testimony read to the jury, and that, as such, the trial court exercised its discretion "`under a misapprehension of the limits of that discretion.'" Id. at 232, 464 S.E.2d at 433. Our Court disagreed, finding that there was no evidence in the record that the trial court misunderstood the limits of its discretion. Id. at 232, 464 S.E.2d at 433. Our Court found that the trial court properly exercised its discretion when it denied the jury's request because "it was not practical or feasible" to release to the jury more than three days' worth of testimony covering five hundred transcript pages. Id. at 232-33; 464 S.E.2d at 433-34. Finally, we noted that in granting the jury's request to view the various items of evidence, it was "evident" that the trial court "realized that it was within [its] discretion to grant or deny the jury's request[.]" Id. at 232, 464 S.E.2d at 433.

Under Buckner, we find that the trial court did not err in...