State v. Hyman
| Decision Date | 18 December 2018 |
| Docket Number | No. COA16-398-2,COA16-398-2 |
| Citation | 263 N.C.App. 310,823 S.E.2d 146 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Terrence Lowell HYMAN |
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.
Previously, a divided panel of this Court, ––– N.C. App. ––––, 797 S.E.2d 308 (2017) ( Hyman III ), held that the exculpatory-witness component of defendants' ineffective assistance of trial counsel claim was not procedurally barred from appellate review and that "defendant is entitled to relief under Strickland on [that component of his] claim" and, therefore, reversed the trial court's order denying defendant's motion for appropriate relief ("MAR"). Id. at ––––, 797 S.E.2d at 322. The majority thus declined to "address [defendant's] remaining arguments," id. , which included his challenges to the trial court's denial of his MAR as to the dual-representation-conflict components of his ineffective assistance of counsel claims, id. at ––––, 797 S.E.2d at 316. The dissenting judge opined that the exculpatory-witness claim had been procedurally defaulted by N.C. Gen. Stat. § 15A-1419(a)(3) but, nonetheless, that because defendant failed to satisfy his burden of establishing any claim to support granting his MAR, he would affirm the trial court's order. Id. at ––––, 797 S.E.2d at 323–24 (Dillon, J., dissenting).
On 17 August 2018, our Supreme Court affirmed in part our decision in Hyman III —that is, "defendant's [exculpatory-witness] ineffective assistance of counsel claim [was] not procedurally barred pursuant to N.C.G.S. § 15A-1419(a)(3)"—reversed in part our decision—that is, "to overturn the trial court's order denying defendant's [MAR]" based upon a merits-review of the exculpatory-witness component of his ineffective assistance of trial counsel claim—and remanded "for consideration of remaining challenges to the trial court's order denying defendant's [MAR]." State v. Hyman , ––– N.C. ––––, ––––, 817 S.E.2d 157, 173 (2018).
Defendant's remaining challenges, which were neither addressed by our Court in Hyman III nor our Supreme Court in its later decision, concerned the trial court's denial of his MAR as to his claims he received (1) ineffective assistance of trial counsel because his attorney had a dual-representation conflict arising from her prior representation of one of the State's primary witnesses against him, and (2) ineffective assistance of counsel at the evidentiary remand hearing ordered to develop that claim in State v. Hyman , 172 N.C. App. 173, 616 S.E.2d 28, 2005 WL 1804345 (2005) (unpublished) ( Hyman I ). Specifically, defendant argued the trial court improperly concluded he was procedurally barred from reasserting as grounds to support his MAR the dual-representation-conflict component of his ineffective assistance of trial counsel claim because his remand attorney himself had a dual-representation conflict arising from his prior representation of a co-defendant also charged with the victim's murder. Additionally, defendant argued that, to the extent the dual-representation remand counsel conflict claim had been procedurally barred under N.C. Gen. Stat. § 15A-1419(a)(3) by his failure to raise it on direct appeal in State v. Hyman , 182 N.C. App. 529, 642 S.E.2d 548, 2007 WL 968753 (2007) (unpublished) ( Hyman II ), he received ineffective assistance of appellate counsel.
The trial facts and procedural history of this case are discussed more fully in our prior opinions, Hyman I , Hyman II , Hyman III , and in our Supreme Court's subsequent opinion, Hyman , ––– N.C. at –––– – ––––, 817 S.E.2d at 157–67. We discuss only that relevant to provide basic context and to adjudicate the remanded issues.
In September 2003, a jury found defendant guilty of first-degree murder for the 6 May 2001 shooting death of Ernest Bennett, and the trial court sentenced him to life in prison without parole. Defendant appealed, arguing the trial court erred by failing to conduct a hearing and inquire into a potential dual-representation trial counsel conflict when it became apparent that his first-chair defense counsel, Teresa Smallwood, "previously represented [one of the State's primary witnesses, Derrick] Speller in an unrelated case." Hyman I , at *4. On 2 August 2005, we issued our decision in Hyman I , in part remanding to the superior court for an evidentiary hearing on the Smallwood dual-representation-conflict claim "to determine if the actual conflict adversely affected [Smallwood's] performance[.]" Id. at *6 (quoting State v. James , 111 N.C. App. 785, 791, 433 S.E.2d 755, 759 (1993) ).
That remand hearing occurred on 3 October and 2 November 2005. The trial court appointed A. Jackson Warmack to represent defendant. Warmack had previously represented Telly Swain, a co-defendant also charged with Bennett's murder. Warmack advised the trial court before the remand hearing that there might be a potential conflict with his later representation of defendant, but Warmack explained that he had previously contacted the North Carolina State Bar and determined no actual conflict would exist given the limited scope of the remand hearing. After defendant confirmed to the trial court he did not object to Warmack's representation, Warmack proceeded as defendant's counsel at the remand hearing.
After the remand hearing, the trial court entered an order concluding "Smallwood's representation of defendant was not adversely affected by her prior representation of Speller." Hyman II , at *2. Defendant appealed, arguing "Smallwood's actual conflict of interest adversely affected her representation of him." Id. On 3 April 2007, this Court issued its decision in Hyman II , directly addressing and rejecting the Smallwood dual-representation-conflict component of defendant's ineffective assistance of trial counsel claim, and holding that defendant "failed to show the trial court erred when it found and concluded Smallwood's representation of him was not adversely affected by her previous representation of Speller." Id. at *6. The Hyman II panel thus affirmed the trial court's remand order. Id.
In July 2013, defendant filed an MAR in the superior court, asserting "his right to effective, conflict-free trial counsel was violated" and, "[t]o the extent this claim is in any way procedurally barred, ... his right to effective, conflict-free counsel was violated on remand and/or ineffective assistance of appellate counsel." Relevant to defendant's remaining challenges presented on remand, he argued he received ineffective assistance of (1) trial counsel based upon Smallwood's dual-representation conflict "between her duties to her former client, the State's witness [Speller], and her duties to defendant"; (2) remand counsel based upon Warmack's dual-representation conflict "from having previously represented [co-defendant] Swain"; and (3) appellate counsel to the extent his failure to raise Warmack's dual-representation conflict on appeal in Hyman II procedurally defaulted that claim. The trial court granted defendant's request for an evidentiary MAR hearing.
After that evidentiary hearing, the trial court entered an order on 12 May 2015 denying defendant's MAR. In its order, the trial court concluded defendant was procedurally barred from (1) reasserting Smallwood's dual-representation conflict as grounds to support his MAR because this Court in Hyman II previously addressed and rejected that claim, see N.C. Gen. Stat. § 15A-1419(a)(2) ; and (2) raising Warmack's dual-representation conflict because defendant failed to raise it on appeal in Hyman II , see N.C. Gen. Stat. § 15A-1419(a)(3). Alternatively, the trial court concluded (3) the Warmack dual-representation remand counsel conflict claim was meritless because (a) defendant waived Warmack's potential conflict at the remand hearing; (b) defendant failed to establish Warmack had an actual conflict when representing him at the remand hearing; and (c) even if an actual conflict existed, defendant failed to establish it adversely affected Warmack's representation of him at the remand hearing. The trial court also concluded (4) to the extent defendant was procedurally barred from raising Warmack's dual-representation conflict because his appellate counsel did not raise it on appeal in Hyman II , he did not receive ineffective assistance of appellate counsel because the underlying claim was meritless.
Defendant's remaining challenges presented on remand concerned the propriety of the trial court's denial of his MAR as to the Smallwood dual-representation-conflict component of his ineffective assistance of trial counsel claim. He argued he was "not procedurally barred from asserting Smallwood's dual representation conflict" because "Warmack provided ineffective assistance of counsel at the remand hearing." Specifically, defendant challenged the trial court's conclusions that (1) the Smallwood dual-representation trial counsel conflict claim was rejected by this Court in Hyman II ; (2) the findings in its 2005 remand order as to the timing of Smallwood's representations of Speller and defendant were binding at the 2013 evidentiary MAR hearing; (3) defendant "properly waived Warmack's conflict" at the 2005 remand hearing; (4) "any claim regarding Warmack's conflict is procedurally barred because appellate counsel did not raise it in Hyman II "; (5) "Warmack provided effective representation" at the 2005 remand hearing; and (6) "[defendant] would not have suffered prejudice even if his appellate counsel had argued Warmack's conflict in Hyman II because the conflict claim is meritless." Because these challenges concern three related but independent ineffective assistance of counsel claims, we reorganize our discussion accordingly.
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