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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