An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1058

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

STATE OF NORTH CAROLINA

v .                         Bertie County
                            No. 01CRS050423
TERRENCE LOWELL HYMAN

    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 gatheredand 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 thistime, 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 ofthe 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 thetestimony 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 denying the jury's request to review testimony in this case. There is no evidence in the record tending to show that the trial court was unaware of its discretion when it denied the request. To the contrary, the trial court's granting of the jury's request to review charts of the nightclub indicates that the trial court was fully aware of its ability to grant or deny the jury's request to review testimony or evidence. See id. at 232, 464 S.E.2d at 433. In addition, the transcript indicates that the trial court denied the jury's request to review testimony because it was impractical to produce testimony for the jury to review because of the length of time it would take to transcribe testimony that had beenrecorded on an audio tape. The testimony the jury requested occurred inconsecutively, on four different days, and spanned more than three hundred transcript pages. We find that the trial court was aware of its discretion and properly exercised that discretion when it denied the jury's request to review trial testimony.
    We also find that we are not bound by the holding in State v. Barrow, 350 N.C. 640, 517 S.E.2d 374 (1999). In Barrow, our Supreme Court granted the capital defendant a new trial because the trial court erred by failing to permit the defendant to make three arguments during closing arguments of the guilt phase. Id. at 645, 517 S.E.2d at 377. Despite granting the defendant a new trial on this issue, the Court addressed two of the defendant's remaining assignments of error "since they relate[d] to matters which may arise at a new trial." Id. at 645, 517 S.E.2d at 377. However, the Court explicitly acknowledged that "[s]ince [the] defendant [wa]s entitled to a new trial on the first issue, it [wa]s unnecessary to address defendant's remaining arguments." Id. at 645, 517 S.E.2d at 377.
    The Court considered the defendant's argument that the trial court did not exercise its discretion when it denied the jury's request for transcripts of trial testimony. Id. at 645, 517 S.E.2d at 377. The trial court told the jury: "[The testimony] has not yet been transcribed. And the [trial] [c]ourt doesn't have the ability to now present to you the transcription of what was said during the course of the trial." Id. at 647, 517 S.E.2d at 378. The Supreme Court stated: "[T]he trial court's statement. . . suggests a failure to exercise discretion." Id. at 647, 517 S.E.2d at 378 (emphasis added). However, the Court refrained from specifically holding that the trial court failed to exercise its discretion.
    We find that the Supreme Court's statement in Barrow was dicta and is not binding on this Court in this case. The statement was not the basis for granting the defendant a new trial, but was rather advisory to the trial court upon retrial. Therefore, the statement was dicta that does not control this case. See, e.g., State v. Jackson, 353 N.C. 495, 500, 546 S.E.2d 570, 573 (2001) (stating that dicta was not determinative of the issue before the Court); Collins v. Simms, 257 N.C. 1, 11, 125 S.E.2d 298, 305 (1962) ("In every case what is actually decided is the law applicable to the particular facts; all other legal conclusions therein are but obiter dicta."); State v. Cope, 240 N.C. 244, 246, 81 S.E.2d 773, 776 (1954) (finding that a trial court's statement that was not essential to its decision was dicta). Therefore, we elect to follow the explicit precedent as stated in Buckner and Lee.
II.

    Defendant next assigns error to the trial court's failure to conduct a hearing when the trial court became aware of a potential conflict of interest on the part of one of defendant's attorneys, Theresa Smallwood (Smallwood). During Smallwood's cross- examination of State's witness Speller, it became evident that Smallwood had previously represented Speller in an unrelated case. Defendant argues that once the trial court became aware of Smallwood's prior representation of Speller, the trial court should have conducted a hearing and inquired into a possible conflict of interest.
    Criminal defendants subject to imprisonment have a Sixth Amendment right to counsel. Argersinger v. Hamlin, 407 U.S. 25, 37, 32 L. Ed. 2d 530, 538 (1972). The Sixth Amendment right to counsel is applicable to the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 342-43, 9 L. Ed. 2d 799, 804 (1963); State v. Davis, 349 N.C. 1, 19, 506 S.E.2d 455, 464 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999). The right to counsel includes a right to be represented by counsel "that is free from conflicts of interests." Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230 (1981).
    When a defendant fails to object at trial, a defendant "must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Culyer v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333, 346-47 (1980); see also State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996). However, when a trial court is made aware of a possible conflict of interest prior to the conclusion of a trial, "the trial court must 'take control of the situation.'" State v. James, 111 N.C. App. 785, 791, 433 S.E.2d 755, 758 (1993) (citation omitted); see also State v. Hardison, 126 N.C. App. 52, 483 S.E.2d 459 (1997). Further, the trial court should conduct a hearing "'to determine whether there exists such a conflict of interest that the defendant will be prevented fromreceiving advice and assistance sufficient to afford him the quality of representation guaranteed by the [S]ixth [A]mendment.'" James, 111 N.C. App. at 791, 433 S.E.2d at 758 (citation omitted). We are bound by our Court's determination in James that failure to conduct such a hearing or inquiry "in and of itself, constitutes reversible error." Id. at 791, 433 S.E.2d at 759.
    In James, the defendant was charged with second degree murder. Id. at 786, 433 S.E.2d at 755. The victim died from a gunshot wound. Id. at 786, 433 S.E.2d at 756. A witness testified that he saw a gun in the defendant's hand and heard a gunshot. Id. at 787, 433 S.E.2d at 756. During cross-examination of the witness, the defendant's attorney acknowledged that he had previously represented the witness on an unrelated drug charge. Id. at 788, 433 S.E.2d at 757. Although the trial court was aware of the attorney's dual representation, the trial court did not conduct an inquiry into the possible conflict of interest. Id. at 788, 433 S.E.2d at 757. This Court held that the failure to conduct such an inquiry "in and of itself" was reversible error. Id. at 791, 433 S.E.2d at 759. We then found that although the ordinary course of action when a trial court fails to conduct an inquiry into a conflict of interest of a defendant's attorney is to "remand the case to the trial court for a hearing to determine if the actual conflict adversely affected the lawyer's performance[,]" the record in James "clearly show[ed] on its face that the conflict adversely affected counsel's performance[.]" Id. at 791, 433 S.E.2d at 759. We therefore ordered a new trial. Id.    Like the attorney in James, defendant's attorney in this case had also previously represented a witness for the State on an unrelated charge. 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 791, 433 S.E.2d at 758 (citation omitted). Under James, this failure to conduct an inquiry was reversible error. Id. at 791, 433 S.E.2d at 759.
    Despite finding error in this case, we cannot find from the face of the record that defendant's attorney's prior representation of Speller affected her representation of defendant. As a result, we remand for an evidentiary hearing "to determine if the actual conflict adversely affected [the attorney's] performance[.]" Id.
III.

    Defendant's final assignment of error contends that the trial court erred in preventing the nightclub owner from testifying on direct examination about what others told him regarding who was shooting a gun. At trial, the owner testified that he asked people outside the nightclub who had done the shooting. Defendant's counsel asked the owner what the owner was told. Before the owner could answer, the trial court held a bench conference. At the bench conference, defendant argued that although the owner's testimony would be hearsay, the testimony would be permissibleunder the excited utterance exception. The trial court responded that it would allow the testimony. After the bench conference, the following testimony occurred:
        Q.    DID THE PEOPLE RESPOND BACK TO YOU, SIR?
        A.    YES, THEY DID.
        Q.    WHAT KIND OF STATE WERE THEY IN WHEN THEY WERE TALKING BACK TO YOU?

        A.    I ASKED, WELL _
            THE COURT: JUST LISTEN TO THE QUESTION. ASK IT AGAIN.

        Q.    WERE THEY _ DESCRIBE HOW THEY WERE ACTING. WERE THEY SCREAMING AND YELLING, HOLLERING. WHAT WAS GOING ON? WAS IT AN EXCITED TIME?

        A.    IT WASN'T EXCITED.
            THE COURT: WHAT DID YOU SAY?
        A.    IT WASN'T EXCITED.
            THE COURT: IT WAS NOT?
        A.    NO.
            THE COURT: ALL RIGHT THEN, HE CAN'T ANSWER IT BASED UPON WHAT HE SAID.
    
    Hearsay testimony is generally inadmissible. N.C. Gen. Stat. § 8C-1, Rule 802 (2003). However, an "excited utterance" is not excluded as hearsay. State v. Littlejohn, 340 N.C. 750, 761, 459 S.E.2d 629, 636 (1995). An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." N.C. Gen. Stat. § 8C-1, Rule 803(2) (2003).         A statement is admissible as an excited utterance when there is "(1)a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication." State v. Pickens, 346 N.C. 628, 644, 488 S.E.2d 162, 171 (1997). In determining whether hearsay is admissible as an excited utterance, "[s]pontaneity and stress are the crucial factors." State v. Smith, 315 N.C. 76, 88, 337 S.E.2d 833, 842 (1985).
    We do not find that the trial court erred in excluding the owner's testimony. The owner testified that when he had asked who had done the shooting, the atmosphere was not "excited." In addition, the owner asked who had done the shooting and the individuals did not, of their own accord, state who had done the shooting. Therefore, the statements were not made spontaneously or under conditions that did not give the declarants time to manufacture or fabricate their statements.
    Defendant also argues that the testimony could have been acceptable under the present sense impression exception to the hearsay rule. See N.C. Gen. Stat. § 8C-1, Rule 803(1) ("[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter" is a present sense impression and not inadmissible hearsay). However, defendant did not rely on this theory at the trial court, but merely argued that the testimony was admissible as an excited utterance. "[I] t is well settled in this jurisdiction that defendant cannot argue for the first time on appeal this new ground for admissibility that he did not present to the trialcourt." State v. Sharpe, 344 N.C. 190, 195 , 473 S.E.2d 3, 6 (1996), cert. denied, 350 N.C. 848, 539 S.E.2d 647 (1999). Therefore, we do not consider whether the testimony was admissible under the present sense impression exception to the hearsay rule.
    No error in part; remanded.
    Judges BRYANT and STEELMAN concur.
    Report per Rule 30(e).

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