                IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 245A08-2

                                Filed 17 August 2018

STATE OF NORTH CAROLINA

               v.
TERRENCE LOWELL HYMAN



        Appeal pursuant to N.C.G.S. § 7A-30(2) and on writ of certiorari pursuant to

N.C.G.S. § 7A-32(b) to review the decision of a divided panel of the Court of Appeals,

___ N.C. App. ___, 797 S.E.2d 308 (2017), reversing an order denying defendant’s

motion for appropriate relief signed on 12 May 2015 by Judge Cy A. Grant, Sr., and

entered in Superior Court, Bertie County. Heard in the Supreme Court on 5 February

2018.


        Joshua H. Stein, Attorney General, by Mary Carla Babb and Nicholaos G.
        Vlahos, Assistant Attorneys General, for the State-appellant.

        Glenn Gerding, Appellate Defender, by Nicholas C. Woomer-Deters, Assistant
        Appellate Defender, for defendant-appellee.


        ERVIN, Justice.

        The question before us in this case is whether the record supports the trial

court’s decision to deny defendant’s motion for appropriate relief. After carefully

considering the record in light of the applicable law, we hold that, while the claim

asserted in defendant’s motion for appropriate relief is not subject to the procedural

bar established by N.C.G.S. § 15A-1419(a)(3), the trial court did not err by denying
                                   STATE V. HYMAN

                                  Opinion of the Court



defendant’s motion for appropriate relief for the reasons stated by the Court of

Appeals. As a result, we affirm the decision of the Court of Appeals, in part; reverse

that decision, in part; and remand this case to the Court of Appeals for consideration

of defendant’s remaining challenges to the trial court’s order denying his motion for

appropriate relief.

      At approximately 10:00 p.m. on 5 May 2001, Earnest Bennett arrived at the

L and Q nightclub with his friends Shelton Lamont Gilliam, Tyrone Knight, and

Alton Bennett. As the night progressed and early morning arrived, a man confronted

Mr. Bennett, leading to an argument between the two men that escalated into an

altercation after a “crew of people” approached Mr. Bennett and began to hit him with

“bottles, chairs and basically everything that they could find.”

      Derrick Speller testified for the State at defendant’s trial that, after the

altercation had been in progress for approximately fifteen minutes, he observed

defendant Terrence Lowell Hyman enter the nightclub with a firearm and shoot it at

Mr. Bennett. At that point, Mr. Speller observed Mr. Bennett “clench his side and

run for the door.” As Mr. Bennett reached the nightclub door, defendant shot him

again in the small of his back. According to Mr. Speller, Mr. Bennett and defendant

exited the nightclub once defendant had shot Mr. Bennett a second time. Outside the

nightclub, Mr. Speller saw defendant “kneeling down over” Mr. Bennett, who was on




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the ground, and shoot Mr. Bennett a third time.1 Mr. Bennett died as a result of the

gunshot wounds that he sustained on this occasion.

      On the other hand, Demetrius Pugh testified on defendant’s behalf that he

observed Demetrius Jordan shoot Mr. Bennett multiple times inside and outside of

the nightclub. According to Demetrius Pugh, Mr. Jordan had a .38 caliber handgun

inside the nightclub and procured a nine millimeter handgun from his van after

leaving the nightclub’s interior.2 In addition, Lloyd Pugh testified on defendant’s

behalf that he heard two gunshots inside the nightclub. Although Lloyd Pugh could

not see who had fired these shots, he knew that defendant had not fired them because

he could see defendant, who was leaving the nightclub at that time, and observed

that he did not have a firearm on his person when the shots were fired. As Lloyd

Pugh attempted to bring the fight inside the nightclub under control, he heard

additional gunshots outside.      Simultaneously, Lloyd Pugh observed defendant

reentering the nightclub without a firearm in his possession.

      On 30 July 2001, the Bertie County grand jury returned a bill of indictment

charging defendant with first-degree murder. The charges against defendant came

on for trial before the trial court and a jury at the 25 August 2003 criminal session of

Superior Court, Bertie County.


      1  Robert Wilson, another witness for the State, also identified defendant as the
individual who shot Mr. Bennett.

      2  Mr. Speller admitted that Mr. Jordan fired a nine millimeter handgun into the air
outside the nightclub.

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      During the trial, Mr. Speller testified on direct examination that defendant’s

trial counsel, Teresa Smallwood, had spoken with him before the trial and asked for

his help with the case.3 In the course of a cross-examination conducted by Ms.

Smallwood, Mr. Speller testified that he had sought assistance from Ms. Smallwood’s

law firm with respect to a probation violation proceeding at some point prior to the

time that this case came on for trial. In addition, Mr. Speller testified that:

                   Q.:   At some point in time during that
             conversation it came up that you had been at the L and Q,
             do you remember that?

                    A.:    No

                    ....

                    Q.:    Do you remember when you told the members
             of the jury this earlier that I wanted you to help me, it was
             because you told me a story on that particular occasion as
             to what you say happened; isn’t that correct?

                    A.:    No, it’s not.

                    ....

                   Q.:    You sat in my office and you told me across
             the desk from me that you had seen Demetrius Jordan . . . .
             shoot a weapon; isn’t that correct?

                    A.:    No, it’s not.

                   Q.:   And you told me that the reason you didn’t
             want to come forward is because you had been hustling for


      3  Defendant’s other trial counsel, W. Hackney High, stated during a bench conference
that he had not known that Mr. Speller and Ms. Smallwood had conversed prior to trial until
that fact emerged during Mr. Speller’s testimony.

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                     Opinion of the Court



Turnell Lee and Demetrius Jorden and them dudes was
lethal. Do you recall saying that?

      A.:    No, I did not.

     Q.:   They would off you in a minute. You don’t
remember that?

      A.:    No.

       Q.:     I didn’t either. Until I went back and got the
notes. Then in the course of the conversation when you and
I were talking, you said that you would help in any way you
could; isn’t that correct?

      A.:    No, it’s not.

      ....

       Q.:    Well earlier you told the members of the jury
that I said I needed you to help?

      ....

      A.:    Not in the conversation that you’re referring
to.

      ....

     Q.:    Do you recall that at the point in time when
we were talking about what it was you knew about the L
and Q, do you recall telling me that Turnell Lee and
Demetrius Jordan were after you to go and tell the police
something that you knew wasn’t true?

      A.:    No, we never had that conversation.

      ....

      When I spoke to you about that case, that was when
you sent Tyrone Watson to say that you wanted to talk to


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                                      Opinion of the Court



               me, Turnell and a few other people. I went to your office
               and seen—and talked to you and Tanza [Ruffin]4 in the
               parking lot at your office. You all was leaving. I told you
               at that time I couldn’t help you on this case, that I would
               harm him 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.

                     Q.:     Derrick, that’s the second time we talked
               about this; isn’t that correct?

                      ....

                      Didn’t I represent you in ’01?

                      A.:    No, Tanza [Ruffin] represented me.

                      ....

                       Q.:   And I ultimately represented you in that case;
               isn’t that correct?

                      ....

                      Before the judge, you and I stood before the judge on
               that case?

                      A.:    Yes, we stood before the judge.

                     Q.:     And it was in the occurrence of that that you
               talked about all these things as to why you never came
               forward; isn’t that correct?

                      A.:    No, it is not.

At one point in her cross-examination of Mr. Speller, Ms. Smallwood attempted to

question Mr. Speller using a one-page document that had Mr. Speller’s name at the



      4   At the time of defendant’s trial, Ms. Ruffin was Ms. Smallwood’s law partner.

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                                    Opinion of the Court



top and writing on the right-hand side, but was precluded from doing so by the trial

court.

         On 12 September 2003, the jury returned a verdict convicting defendant of

first-degree murder. On 16 September 2003, the jury returned a verdict determining

that no aggravating circumstances existed and that defendant should be sentenced

to a term of life imprisonment without the possibility of parole. Based upon the jury’s

verdicts, the trial court entered a judgment sentencing defendant to a term of life

imprisonment without parole.

         In seeking relief from the trial court’s judgment before the Court of Appeals,

defendant argued that the trial court had erred by failing “to conduct a hearing when

the trial court became aware of a potential conflict of interest on the part of” Ms.

Smallwood arising from the fact “that [Ms.] Smallwood had previously represented

[Mr.] Speller in an unrelated case.” State v. Hyman, 172 N.C. App. 173, 616 S.E.2d

28, 2005 WL 1804345, at *4 (2005) (unpublished) (Hyman I). After determining that

it could not “find from the face of the record that defendant’s attorney’s prior

representation of [Mr.] Speller affected her representation of defendant,” id. at *6,

the Court of Appeals remanded this case to the Superior Court, Bertie County, “for

an evidentiary hearing ‘to determine if the actual conflict adversely affected [the

attorney’s] performance,’ ” id. (alteration in original) (quoting State v. James, 111

N.C. App. 785, 791, 433 S.E.2d 755, 759 (1993)).




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                                      Opinion of the Court



        An evidentiary hearing was conducted before the trial court on remand on 3

October 2005 and 2 November 2005. At the remand hearing, Ms. Smallwood testified

that the information that she used during her cross-examination of Mr. Speller

stemmed from a meeting that she had had with Mr. Speller, during which she had

taken notes. According to available court records, Ms. Smallwood appeared on Mr.

Speller’s behalf at a probation revocation hearing on 26 September 2002, although

Ms. Ruffin was listed as Mr. Speller’s attorney of record in that case.5           On 28

November 2005, the trial court entered an order concluding that Ms. Smallwood’s

“representation of [defendant] was not adversely affected by her previous

representation of [Mr.] Speller.” On appeal to the Court of Appeals from the trial

court’s remand order, defendant argued that “[Ms.] Smallwood’s actual conflict of

interest adversely affected her representation of him.” State v. Hyman, 182 N.C. App.

529, 642 S.E.2d 548, 2007 WL 968753, at *2 (2007) (unpublished) (Hyman II). The

Court of Appeals rejected defendant’s challenge to the trial court’s remand order on

the grounds that defendant had not challenged any of the trial court’s findings of fact,

rendering them conclusive for purposes of appellate review, id. at *4, and that

“[d]efendant [had] failed to show [that] the trial court [had] erred when it concluded

that [Ms.] Smallwood’s representation of him was not adversely affected by her




        5   Ms. Smallwood had been appointed to represent defendant in this case on 14 May
2001.

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                                  Opinion of the Court



previous representation of [Mr.] Speller,” id. at *5. As a result, the Court of Appeals

affirmed the trial court’s remand order. Id. at *6.

      On 8 May 2008, defendant filed a petition seeking the issuance of a writ of

habeas corpus with the United States District Court for the Eastern District of North

Carolina. On 31 May 2008, defendant filed a petition seeking the issuance of a writ

of certiorari by this Court authorizing review of the Court of Appeals’ decisions in

Hyman I and Hyman II and the trial court’s remand order. This Court denied

defendant’s certiorari petition on 22 December 2008. On 31 March 2010, United

States District Judge Terrence W. Boyle entered an order opining that “[Ms.]

Smallwood’s actual conflict of interest adversely affected her performance” and

issuing the requested writ of habeas corpus. The State noted an appeal to the United

States Court of Appeals for the Fourth Circuit from the District Court’s order. On 21

July 2011, the Fourth Circuit released an opinion staying further federal appellate

proceedings in order “to provide the North Carolina courts with an opportunity to

weigh in on the procedural and substantive issues.” Hyman v. Keller, No. 10-6652,

2011 WL 3489092, at *11 (4th Cir. Aug. 10, 2011) (per curiam).

      On 15 July 2013, defendant filed a motion for appropriate relief in Superior

Court, Bertie County, in which he asserted, among other things, that his

“constitutional right to effective, conflict-free trial counsel [had been] violated.”

Defendant argued that “[Ms.] Smallwood was a critical defense witness because she

could have testified concerning a prior statement by [Mr.] Speller, a key State’s


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                                    Opinion of the Court



witness, that both impeached his testimony and tended to exculpate [defendant]” and

requested that an evidentiary hearing be held at which he could “present evidence,

which has never been considered by any court, that establishes a prima facie claim

that his right to effective, conflict-free counsel was violated.” On 16 July 2013, the

trial court entered an order granting defendant’s request that an evidentiary hearing

be held.

       On 3 June 2014, the trial court held an evidentiary hearing for the purpose of

considering the issues raised by defendant’s motion for appropriate relief. On 12 May

2015, the trial court signed an order denying defendant’s motion for appropriate

relief. In its order, the trial court found as a fact that:

                    11.    At the MAR evidentiary hearing held June 3,
              2014, Defendant introduced as evidence a page out of a
              legal notepad which contained handwritten notes, the
              contents of which were as follows:

                     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.”
                     “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 [n*******]
                     are lethal.
                     can you shoot me a couple of dollars




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                     Opinion of the Court



The handwritten notes had an exhibit stamp on them
reading “Defendant’s Exhibit 1.” This is an indication that
at trial Ms. Smallwood placed the exhibit stamp on the
notes, marking them as Defendant’s Exhibit 1, when she
attempted to show the notes to Speller, but the
undersigned would not allow her to do so. . . .

      ....

        13.   Former NCPLS attorney Ravi Manne
testified at the MAR evidentiary hearing that he . . . .
located Defendant’s MAR Exhibit 1 among Ms.
Smallwood’s files on Defendant’s case.

      ....

       17.    At the MAR evidentiary hearing, Defendant
introduced an October 9, 2003 letter Ms. Smallwood sent
the Office of Indigent Defense Services (“IDS”), which
appeared with other documents admitted into evidence
collectively as Defendant’s MAR Exhibit 30. . . . Attached
to the letter was an “Attorney Time Sheet,” detailing in
eight pages Ms. Smallwood’s daily hours in Defendant’s
case. The first entry on the time sheet is for May 14, 2001,
at which time Ms. Smallwood noted that she reviewed her
appointment notice and talked to Defendant’s family.
There is no entry on the time sheet for November 20, 2001,
the date listed on the handwritten notes purportedly from
the conversation Ms. Smallwood had with Speller admitted
at the MAR evidentiary hearing as Defendant’s MAR
Exhibit 1.

      ....

      19.    At the MAR evidentiary hearing, W. Hackney
High testified that he was appointed, along with Ms.
Smallwood, to represent Defendant at trial. According to
Mr. High, Ms. Smallwood was first-chair counsel, and he
was second-chair counsel. In preparing for trial, Mr. High
and Ms. Smallwood reviewed the State’s witness list and
together determined which attorney would cross-examine


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                    Opinion of the Court



which witness, depending on several factors including
whether either attorney knew the witness. Mr. High and
Ms. Smallwood had decided prior to trial that Mr. High
would cross-examine Speller.       A witness list Ms.
Smallwood and Mr. High prepared from information
conveyed to them by the State was admitted into evidence
at the MAR evidentiary hearing as Defendant’s MAR
Exhibit 21. The list contained a notation indicating that
“Hack,” meaning Mr. High, was to cross-examine Speller.

      20.    According to Mr. High’s MAR evidentiary
hearing testimony, prior to trial he and Ms. Smallwood did
not have a substantive conversation about Speller. Mr.
High testified that he had some indication what Speller
would testify to, but did not recall knowing specifically
what he was going to say. Mr. High further testified that
he was not aware of any conversation between Speller and
Ms. Smallwood or any notes regarding a conversation
between the two before trial. Mr. High testified that if he
had the notes Ms. Smallwood would subsequently claim
she had at trial, he would have provided them to his co[-
]counsel. Moreover, Mr. High noted that if he had known
about the notes when preparing for trial, he would have
told Ms. Smallwood that she needed to cross-examine
Speller, or they would have approached his cross-
examination differently.

       21.   According to Mr. High’s MAR evidentiary
hearing testimony, when Speller’s name was called at trial,
Ms. Smallwood leaned over to Mr. High and said, “[D]on’t
worry about this one, I’ve got it.” When Mr. High inquired
as to why, Ms. Smallwood told him that he had spoken with
Speller about the case and to let her handle it.

        22.   At the MAR evidentiary hearing, Mr. High
testified that after District Attorney Asbell concluded her
direct examination of Speller at trial, Ms. Smallwood left
the courtroom during the recess and returned with some
papers. Ms. Smallwood told Mr. High that she had talked
to Speller prior to trial and that she had some notes she
was going to use to cross-examine him. This was the first


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                     Opinion of the Court



time Mr. High heard of the notes. Mr. High testified that
with Speller’s cross-examination, Ms. Smallwood tried to
establish that the events on the night in question were
different than how Speller testified to them on direct
examination. According to Mr. High, Ms. Smallwood had
a piece of paper in her hand when she was cross-examining
Speller. Mr. High testified that the decision to have Ms.
Smallwood, rather than himself, cross-examine Speller
was a strategic decision based on her having prior
knowledge concerning the witness that Mr. High did not
have.

      23.    . . . . Mr. High recalled that the [trial court]
would not admit the notes because Speller had denied that
the conversation which Ms. Smallwood was referring to
during the cross-examination ever took place.

       24.    At the MAR evidentiary hearing, Mr. High
could not positively identify Defendant’s MAR Exhibit 1 as
the piece of paper Ms. Smallwood had with her when she
came back into the courtroom after the recess.

      ....

      27.    At the MAR evidentiary hearing, Ms. Ruffin
stated that she was aware that Speller had testified at
defendant’s trial and that his trial testimony was not
helpful to Defendant’s case. However, she was under the
impression that Speller had information which would be
helpful. Ms. Ruffin remembered being in the parking lot
when Speller was speaking with Ms. Smallwood and that
he indicated he could be helpful to the case, but she could
not remember exactly what he said. Ms. Ruffin also
remembered Ms. Smallwood telling her that Speller
claimed that he was there the night of the murder, that he
saw everything, and that he sought her out and indicated
to her that he could help. Ms. Ruffin testified that Ms.
Smallwood may have had a conversation with Speller other
than the one in the parking lot.




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                    Opinion of the Court



       28.   At the MAR evidentiary hearing, Ms. Ruffin
identified the handwriting on Defendant’s MAR Exhibit 1
as that of Ms. Smallwood.

      29.    . . . . Ms. Ruffin testified that just because
Defendant’s MAR Exhibit 2 was found in a box of
Defendant’s case files did not mean they were related to
Defendant; rather, they could have simply been notes
taken on a notepad used in Defendant’s case that were
never torn out.

      ....

      31.    Defendant called neither Ms. Smallwood nor
Speller as a witness at the MAR evidentiary hearing.

      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 purposed 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. The
undersigned acknowledged that Ms. Ruffin did testify as to
how she remembered, based upon Speller’s attitude in the


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                                   Opinion of the Court



             parking lot and from talking to Ms. Smallwood, that
             Speller would be helpful to the case. However, other
             evidence indicated that the conversation purportedly
             memorialized in Defendant’s MAR Exhibit 1 never took
             place. First, Ms. Smallwood did not inform her co-counsel
             Mr. High of her conversation with Speller, despite the fact
             that she and Mr. High had decided that he would be the
             attorney cross-examining Speller. In fact, Mr. High did not
             learn about the purported conversation until Speller
             testified at trial several days after the trial began.
             Secondly, despite keeping detailed notes of the time she
             spent working on Defendant’s case, the time sheet Ms.
             Smallwood submitted to IDS for fee payment approval did
             not contain an entry for November 20, 2001, the date on
             Defendant’s MAR Exhibit 1.

                     36.   At trial, Ms. Smallwood attempted to show
             Speller what she identified as her notes from their
             conversation. The undersigned finds upon a review of the
             trial transcript that he would not allow Ms. Smallwood to
             do so because Speller had denied that the conversation
             which Ms. Smallwood was referring to during the cross-
             examination ever took place.

Based upon these findings of fact, the trial court concluded, in pertinent part, that

defendant’s ineffective assistance of counsel claim stemming from “Ms. Smallwood’s

failure to withdraw and testify” concerning her alleged prior conversation with Mr.

Speller was “procedurally barred because [d]efendant was in a position to adequately

raise it in Hyman I, but failed to do so.” In the alternative, the trial court concluded

that defendant’s ineffective assistance of counsel claim lacked merit given that he

“can demonstrate neither deficient performance nor prejudice in regard to trial

counsel’s failure to withdraw from representing [d]efendant and to testify as a

witness regarding a prior conversation she had with Speller in which he made


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                                    Opinion of the Court



remarks inconsistent with his direct trial testimony,” citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692 (1984).

More specifically, the trial court concluded that it could not find that Ms. Smallwood’s

performance had been deficient because the trial court could not find, based upon the

evidence contained in the transcript of defendant’s trial and the evidence presented

at   the   evidentiary   hearing,    that    Ms.    Smallwood’s   notes   were   written

contemporaneously with any alleged conversation that Ms. Smallwood had with Mr.

Speller, that the alleged conversation between Ms. Smallwood and Mr. Speller took

place on 20 November 2001, or that the alleged conversation between Ms. Smallwood

and Mr. Speller ever actually occurred.         Finally, the trial court concluded that

“[d]efendant can demonstrate neither deficient performance nor prejudice even

assuming that the conversation which Ms. Smallwood claimed [that] she had with

[Mr.] Speller took place” “because Ms. Smallwood would not have been allowed to

testify to the substance of the conversation [that] she allegedly had with [Mr.] Speller

had she withdrawn and testified at trial” or “introduced her notes of the conversation”

“because [Mr.] Speller categorically denied having had the alleged conversation with

Ms. Smallwood.” In light of that fact, “any testimony by Ms. Smallwood would have

been limited to impeaching only [Mr.] Speller’s denial that any conversation took

place, and would not have included the substance of the alleged conversation.” For

that reason, the trial court determined that “the absence of Ms. Smallwood’s limited

testimony did not prejudice [d]efendant, particularly in light of her effective cross-


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                                  Opinion of the Court



examination of [Mr.] Speller” and the fact that “other evidence established defendant,

not Demetrius Jordan, was the shooter.”

      In seeking relief from the trial court’s order before the Court of Appeals,

defendant argued that the trial court had erroneously relied upon the ineffective

assistance of counsel test enunciated in Strickland and should, instead, have relied

upon the test enunciated in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L.

Ed. 2d 333 (1980). According to defendant, “the test for determining ineffective

assistance of counsel based on an attorney’s conflict of interest is whether ‘an actual

conflict of interest adversely affected his lawyer’s performance,’ ” quoting Sullivan,

446 U.S. at 350, 100 S. Ct. at 1719, 64 L. Ed. 2d at 348. Defendant contended that

the record developed at the evidentiary hearing demonstrated that Ms. Smallwood

had been subject to an actual conflict of interest at the time that she represented

defendant. In the alternative, defendant argued that, even if the trial court had

properly relied upon the Strickland, rather than the Cuyler, test, the trial court’s

order should still be overturned because Ms. Smallwood’s failure to withdraw from

her representation of defendant in order to testify concerning her conversation with

Mr. Speller constituted ineffective assistance of counsel, citing Strickland, 466 U.S.

at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. In support of this

contention, defendant argued that Finding of Fact Nos. 32, 33, 34, and 35 lacked

sufficient evidentiary support in light of the overwhelming and unrebutted evidence

tending to show that the alleged conversation between Ms. Smallwood and Mr.


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Speller actually took place. In addition, defendant contends that Ms. Smallwood’s

testimony concerning Mr. Speller’s statements would have been admissible given that

“[e]xtrinsic evidence is admissible to prove a witness’s prior inconsistent statement,

where the inconsistency goes to a material issue,” citing State v. Green, 296 N.C. 183,

192-93, 250 S.E.2d 197, 203 (1978). Finally, defendant argued that, to the extent that

defendant was procedurally barred from raising the ineffective assistance of counsel

claim asserted in his motion for appropriate relief because he could have asserted it

in Hyman I, his failure to do so should be excused because he had received ineffective

assistance from his appellate counsel.

      The State, on the other hand, argued that the trial court had correctly

concluded that defendant’s ineffective assistance of trial counsel claim was

procedurally barred given that, even though defendant was in a position to

adequately raise the claim in question on direct appeal, he had failed to do so and had

opted, instead, to argue “that the trial court [had] erred in failing to conduct a hearing

when it became aware of a conflict of interest.” In addition, the trial court correctly

rejected defendant’s ineffective assistance of counsel claim on the merits given the

existence of sufficient record evidence to support the trial court’s determination that

the alleged conversation between Ms. Smallwood and Mr. Speller never took place

and given that the trial court had correctly determined that, even if the conversation

in question had occurred, Ms. Smallwood would not have been allowed to testify to

the substance of the alleged conversation before the jury.


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      After summarizing the procedural history of the case, the Court of Appeals

rejected the State’s contention that defendant’s ineffective assistance of counsel claim

was procedurally barred on the grounds that, “[w]hile perhaps unartfully, defendant

adequately raised the exculpatory witness claim when he was first in a position to do

so” by arguing in Hyman I that “[d]efense 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,” and that, “[a]lthough 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.” State v. Hyman,

___ N.C. App. ___, ___, 797 S.E.2d 308, 317 (2017) (Hyman III). Secondly, the Court

of Appeals held that, the trial court’s findings to the contrary notwithstanding,

defendant had proved by a preponderance of the evidence that “[Ms.] Smallwood was

privy to a conversation in which [Mr.] Speller identified the shooter as someone other

than defendant” and that the presentation of evidence concerning this conversation

“would have been both relevant and material had it been offered at trial.” Id. at ___,

797 S.E.2d at 318 (citing N.C.G.S. § 15A-1420(c)(5) (2015)). For that reason, the

Court of Appeals held that the trial court’s findings of fact to the effect that the

alleged conversation between Ms. Smallwood and Mr. Speller never took place “were

not germane to the adjudication of defendant’s exculpatory witness claim” and did




                                          -19-
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                                   Opinion of the Court



not, for that reason, “support its conclusion that defendant’s claim is meritless for

lack of evidentiary support.” Id. at ___, 797 S.E.2d at 318.

      After making these preliminary determinations, the Court of Appeals

proceeded to consider the merits of defendant’s ineffective assistance of counsel claim.

As an initial matter, the Court of Appeals determined, in reliance upon this Court’s

decision in State v. Phillips, 365 N.C. 103, 711 S.E.2d 122 (2011), cert. denied, 565

U.S. 1204, 132 S. Ct. 1541, 182 L. Ed. 2d 176 (2012), that “Strickland provides an

adequate framework to review defendant’s exculpatory witness claim.” Id. at ___,

797 S.E.2d at 320 (citing Phillips, 365 N.C. at 121-22, 711 S.E.2d at 137); see also id.

at ___, 797 S.E.2d at 319-20 (quoting Phillips, 365 N.C. at 121-22, 711 S.E.2d at 137

(explaining that “[t]he purpose of our Holloway and Sullivan exceptions from the

ordinary requirements of Strickland . . . is . . . to apply needed prophylaxis in

situations where Strickland itself is evidently inadequate to assure vindication of the

defendant’s Sixth Amendment right to counsel” (first ellipsis in original) (quoting

Mickens v. Taylor, 535 U.S. 162, 176, 122 S. Ct. 1237, 1246, 152 L. Ed. 2d 291, 307

(2002)), and that, “[b]ecause 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”)). According to the Court of Appeals, since

“the facts of this case do not ‘make it impractical to determine whether defendant

suffered prejudice,’ ” id. at ___, 797 S.E.2d at 320 (quoting Phillips, 365 N.C. at 122,




                                          -20-
                                   STATE V. HYMAN

                                   Opinion of the Court



711 S.E.2d at 137), the Strickland framework is adequate “to evaluate defendant’s

exculpatory witness claim,” id. at ___, 797 S.E.2d at 320.

      In addition, the Court of Appeals held that, contrary to the result reached by

the trial court, Ms. “Smallwood’s testimony, had it been offered, would have been

admissible to impeach [Mr.] Speller by showing that he had previously identified

[Mr.] Jordan as the shooter,” which “was a material issue in defendant’s murder

trial.” Id. at ___, 797 S.E.2d at 320; see State v. Stokes, 357 N.C. 220, 226, 581 S.E.2d

51, 55 (2003) (stating that, “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”).           In

addition, even if testimony concerning the statements that Mr. Speller allegedly

made to Ms. Smallwood concerned a collateral matter, her “testimony would have

also been admissible to show [Mr.] Speller’s bias or interest in the trial.” Id. at ___,

797 S.E.2d at 320; see Green, 296 N.C. at 193, 250 S.E.2d at 203 (stating that, if the

cross-examination relates to a collateral matter, “but tends to show bias, motive, or

interest of the witness, the [examiner] must first confront the witness with the ‘prior

statement so that he may have an opportunity to admit, deny or explain it.’ ”).

      The Court of Appeals further concluded that, “[w]hile the admissibility of [Ms.]

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


                                          -21-
                                   STATE V. HYMAN

                                   Opinion of the Court



conclusion.” Id. at ___, 797 S.E.2d at 321. More specifically, the Court of Appeals

noted that “[Ms.] Smallwood was the only witness to [Mr.] Speller’s prior inconsistent

statement” and determined that, “after her ineffective cross-examination, she became

a necessary witness at trial with a duty to withdraw.” Id. at ___, 797 S.E.2d at 321

(citation omitted). In addition, the Court of Appeals concluded that defendant was

prejudiced by Ms. Smallwood’s failure to withdraw as one of defendant’s trial counsel

and testify as a witness on defendant’s behalf because “she could have testified that

[Mr.] Speller, one of only two key witnesses for the State, had previously told her that

it was [Mr.] Jordan—not defendant—who shot [Mr.] Bennett,” id. at ___, 797 S.E.2d

at 321; because “[s]he could have attacked [Mr.] Speller’s credibility through his prior

inconsistent statement and evidence of his interest in the trial,” id. at ___, 797 S.E.2d

at 321; and because “[Ms.] Smallwood’s testimony could have rehabilitated her own

credibility as an advocate at trial.” Id. at ___, 797 S.E.2d at 322.

      In a dissenting opinion, Judge Dillon concluded that the trial court had

properly denied defendant’s motion for appropriate relief on the grounds that the

ineffective assistance of counsel claim that defendant had asserted in his motion for

appropriate relief was procedurally barred. Id. at ___, 797 S.E.2d at 323 (Dillon, J.,

dissenting). More specifically, Judge Dillon asserted that defendant’s brief before the

Court of Appeals in Hyman I “failed to make an exculpatory witness claim” and, even

if the brief “did raise an exculpatory witness claim, [d]efendant is still procedurally

barred because he failed to raise it through a petition for rehearing to [the Court of


                                          -22-
                                   STATE V. HYMAN

                                   Opinion of the Court



Appeals] following the issuance of our prior opinion, which ostensibly ignored his

claim.” Id. at ___, 797 S.E.2d at 323 (citing N.C. R. App. P. 31 (providing that a party

may file a petition for rehearing arguing “the points of fact or law that, in the opinion

of the petitioner, the [Court of Appeals] overlooked or misapprehended” “contain[ing]

such argument in support of the petition as petitioner desires to present” (first

alteration in Hyman III))). According to Judge Dillon, “[d]efendant 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,’ ” id. at ___, 797 S.E.2d at

323 (quoting N.C.G.S. § 15A-1419(e)(1) (2015)), given his failure to “present evidence

to show exactly what Ms. Smallwood would have said had she taken the stand,” id.

at ___, 797 S.E.2d at 323. In Judge Dillon’s opinion, defendant did not establish that

there was a reasonable probability that a different result would have occurred had

Ms. Smallwood withdrawn as counsel and attempted to testify as a witness or had

defendant’s appellate counsel sought rehearing with respect to his exculpatory

witness claim. Id. at ___, 797 S.E.2d at 323. Judge Dillon believed that, in order to

establish the necessary prejudice, defendant would have had “to show exactly what

the substance of Ms. Smallwood’s testimony would have been,” id. at ___, 797 S.E.2d

at 323, and failed to do so at the hearing held for the purpose of considering the issues

raised by defendant’s motion for appropriate relief, id. at ___, 797 S.E.2d at 323-24.

Finally, Judge Dillon concluded that the copy of Ms. Smallwood’s notes of her alleged

conversation with Mr. Speller was not admissible to show the contents of Ms.


                                          -23-
                                   STATE V. HYMAN

                                  Opinion of the Court



Smallwood’s testimony had she withdrawn from her representation of defendant in

order to testify. Id. at ___, 797 S.E.2d at 324. This Court undertook review of the

Court of Appeals’ decision in light of Judge Dillon’s dissenting opinion and our

decision to allow the State’s petition seeking the issuance of a writ of certiorari

authorizing review of issues in addition to those addressed in Judge Dillon’s dissent.

      In seeking to persuade us to reverse the Court of Appeals’ decision, the State

argues that, in order to establish that his ineffective assistance of counsel claim had

merit, defendant had to establish that the conversation that allegedly occurred

between Ms. Smallwood and Mr. Speller actually took place and the content of the

testimony that Ms. Smallwood would have given had she withdrawn from her

representation of defendant and testified. According to the State, the trial court’s

finding that defendant “presented no credible evidence that the conversation which

Ms. Smallwood claimed she had with [Mr.] Speller ever took place” had adequate

evidentiary support.    In view of the fact that the record contains no evidence

concerning the substance of Ms. Smallwood’s potential testimony, the State claims

that a reviewing court lacks the ability to determine whether Ms. Smallwood’s

testimony would have been admissible or affected the jury’s deliberations at trial.

      The State contends that defendant failed to show either deficient performance

or prejudice as required by Strickland. According to the State, defendant did not

establish any deficient performance on Ms. Smallwood’s part given his failure to

“present any evidence as to what Ms. Smallwood would have testified to had she


                                         -24-
                                   STATE V. HYMAN

                                  Opinion of the Court



withdrawn and taken the stand” or to present any “credible evidence establishing

[that] Ms. Smallwood’s conversation with [Mr.] Speller ever took place.” In the State’s

view, even if Ms. Smallwood had withdrawn as one of defendant’s trial counsel and

testified, she “could not have testified to the content of her notes,” citing State v.

Moore, 275 N.C. 198, 213-14, 166 S.E.2d 652, 662-63 (1969) (determining that

extrinsic evidence of a witness’s prior inconsistent statement, which constituted

double hearsay, was not admissible to impeach that witness after the witness denied

making the statement).      Similarly, the State argued that defendant was not

prejudiced by Ms. Smallwood’s failure to withdraw as one of his trial counsel and to

testify on his behalf even if she was entitled to testify to the entirety of her

conversation with Mr. Speller as reflected in the notes admitted into evidence at the

hearing held with respect to defendant’s motion for appropriate relief given that, even

though the questions that Ms. Smallwood posed to Mr. Speller on cross-examination

were not evidence, the posing of those questions necessarily created the impression

that Mr. Speller had made statements to Ms. Smallwood that were inconsistent with

Mr. Speller’s trial testimony.   In addition, the State contends that, even if Ms.

Smallwood had withdrawn and testified, there is no way to know what impact her

testimony would have had upon the jury.          The State contends that the record

contained ample support for the jury’s decision to convict defendant, including

testimony from additional witnesses aside from Mr. Speller and evidence casting

doubt upon the credibility of the witnesses upon whose testimony defendant relied.


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                                   STATE V. HYMAN

                                   Opinion of the Court



      Finally, the State contends that the trial court correctly determined that the

ineffective assistance of counsel claim asserted in defendant’s motion for appropriate

relief was procedurally barred. After acknowledging that defendant had listed a

claim like the one upon which he now relies in the record on appeal submitted for

consideration by the Court of Appeals in Hyman I, the State points out that defendant

did not argue the merits of this claim in his brief and had argued, instead, that the

trial court had erred by failing to conduct a hearing upon learning that Ms.

Smallwood had previously represented Mr. Speller. Moreover, the State contends

that defendant failed to establish any justification for a decision to excuse the

procedural bar to which defendant’s claim was subject.

      In seeking to persuade us to uphold the Court of Appeals’ decision, defendant

contends that the extent to which the alleged conversation between Mr. Speller and

Ms. Smallwood actually occurred is irrelevant to the validity of defendant’s ineffective

assistance of counsel claim given that the jury, rather than the trial court, bore

ultimate responsibility for determining the credibility of Ms. Smallwood’s testimony,

citing State v. Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988) (explaining that

“[t]he credibility of the witnesses and the weight to be given their testimony is

exclusively a matter for the jury”). In addition, defendant contends that, even if the

extent to which the conversation between Mr. Speller and Ms. Smallwood actually

occurred is relevant to the issues that are before the Court in this case, the substance

of that conversation was established in the record developed at trial and at the


                                          -26-
                                   STATE V. HYMAN

                                   Opinion of the Court



hearing held for the purpose of considering defendant’s motion for appropriate relief.

According to defendant, Ms. Smallwood’s testimony at the remand hearing

established that she could have testified about the prior inconsistent statements that

Ms. Speller made to her had she withdrawn from her representation of defendant for

the purpose of testifying on defendant’s behalf. More specifically, defendant notes

that Ms. Smallwood testified at the remand hearing that she took contemporaneous

notes of her conversation with Mr. Speller and described the substance of the

information contained in those notes, which were found in Ms. Smallwood’s file

concerning defendant’s case and admitted into evidence at the hearing held for the

purpose of considering the issues raised by defendant’s motion for appropriate relief.

In addition, defendant notes that the questions that Ms. Smallwood posed to Mr.

Speller on cross-examination at trial consisted of a “nearly verbatim” recitation of the

information contained in the notes admitted into evidence at the hearing held in

connection with defendant’s motion for appropriate relief and that Ms. Ruffin

testified to her understanding that Mr. Speller had stated during a conversation

between Ms. Smallwood and Mr. Speller that he could be helpful to defendant’s

defense. Although Ms. Smallwood’s time sheet did not indicate that she had spent

any time working on defendant’s case on 20 November 2001, her time sheet did

indicate that Ms. Smallwood spent time working on defendant’s case on 30 November

2001, a fact that suggests that a recordkeeping error might have occurred.




                                          -27-
                                  STATE V. HYMAN

                                  Opinion of the Court



      Defendant maintains that, in view of the fact that Ms. Smallwood was the only

witness to Mr. Speller’s prior inconsistent statements concerning the identity of the

individual that murdered Mr. Bennett and the fact that Mr. Speller’s prior

inconsistent statements concerned facts that were material to the issue of defendant’s

guilt, Ms. Smallwood’s failure to withdraw from her representation of defendant and

to testify on his behalf constituted deficient performance. Ms. Smallwood’s testimony

concerning her conversation with Mr. Speller would not have amounted to an attempt

“to prove the truth of the matter asserted,” quoting N.C.G.S. § 8C-1, Rule 701.

Instead, Ms. Smallwood’s testimony concerning her conversation with Mr. Speller,

which included an account of the shooting for which defendant was on trial, would

have been admissible to impeach Mr. Speller’s testimony concerning a material issue

of fact. In defendant’s view, the fact that this case was a close one that hinged upon

the credibility of the State’s witnesses demonstrates that Ms. Smallwood’s failure to

withdraw from her representation of defendant and to testify concerning her

conversation with Mr. Speller prejudiced defendant’s chances for a more favorable

outcome at trial.

      Finally, defendant argues that the claim that he had asserted in his motion for

appropriate relief was not procedurally barred. According to defendant, a fair reading

of the argument that he advanced before the Court of Appeals in Hyman I

demonstrates that the claim asserted in his motion for appropriate relief was

adequately presented for the Court of Appeals’ consideration.         The brief that


                                         -28-
                                   STATE V. HYMAN

                                   Opinion of the Court



defendant submitted to the Court of Appeals in Hyman I summarized several conflict

of interest cases, described Ms. Smallwood’s conflict of interest as involving her

“possession of information which could be used to impeach” Mr. Speller, and stated

that, “[w]here an actual conflict exists which adversely affects counsel’s performance,

a new trial is necessary.”

      According to well-established North Carolina law, appellate courts review trial

court orders deciding 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)). “[T]he trial

court’s findings of fact ‘are conclusive on appeal if supported by competent evidence,

even if the evidence is conflicting.’ ” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d

823, 826 (2001) (quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501

(2000), cert. denied, 531 U.S. 1165, 121 S. Ct. 1126, 148 L. Ed. 2d 992 (2001)). “If no

exceptions are taken to findings of fact [made in a ruling on a motion for appropriate

relief], such findings are presumed to be supported by competent evidence and are

binding on appeal.”    State v. Mbacke, 365 N.C. 403, 406, 721 S.E.2d 218, 220

(alteration in original) (quoting State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673

(1984)), cert. denied, 568 U.S. 864, 133 S. Ct. 224, 184 L. Ed. 2d 116 (2012).




                                          -29-
                                  STATE V. HYMAN

                                  Opinion of the Court



Conclusions of law, on the other hand, are fully reviewable. State v. Bush, 307 N.C.

152, 168, 297 S.E.2d 563, 573 (1982) (citation omitted).

      As an initial matter, we must address the validity of the State’s contention that

the claim asserted in defendant’s motion for appropriate relief is procedurally barred

pursuant to N.C.G.S. § 15A-1419(a)(3), which provides that a claim asserted in a

motion for appropriate relief must be denied if, “[u]pon 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.G.S. § 15A-1419(a)(3) (2017). As we have

previously indicated, N.C.G.S. § 15A-1419(a)(3) “is not a general rule that any claim

not brought on direct appeal is forfeited on state collateral review” and requires the

reviewing court, instead, “to determine whether the particular claim at issue could

have been brought on direct review.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500,

525 (2001) (quoting McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000), cert. denied,

531 U.S. 1089, 121 S. Ct. 809, 148 L. Ed. 2d 694 (2001)), cert. denied, 535 U.S. 1114,

122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002). “[Ineffective assistance of counsel] claims

brought on direct review will be decided on the merits when the cold record reveals

that no further investigation is required, i.e., claims that may be developed and

argued without such ancillary procedures as . . . an evidentiary hearing.” Id. at 166,

557 S.E.2d at 524 (citations omitted). Although, “to avoid procedural default under

N.C.G.S. § 15A-1419(a)(3), defendants should necessarily raise those [ineffective

assistance of counsel] claims on direct appeal that are apparent from the record,”


                                         -30-
                                      STATE V. HYMAN

                                     Opinion of the Court



“defendants likely will not be in a position to adequately develop many [ineffective

assistance of counsel] claims on direct appeal.” Id. at 167, 557 S.E.2d at 525 (citing

McCarver, 221 F.3d at 589-90). As a result, in order to be subject to the procedural

default specified in N.C.G.S. § 15A-1419(a)(3), the direct appeal record must have

contained sufficient information to permit the reviewing court to make all the factual

and legal determinations necessary to allow a proper resolution of the claim in

question.

       A careful review of the record demonstrates that defendant was not in a

position to adequately raise the ineffective assistance of counsel claim asserted in his

motion for appropriate relief on direct appeal.6 “A convicted defendant’s claim that

counsel’s assistance was so defective as to require reversal of a conviction . . . has two

components.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.


       6 Although the Court of Appeals held that defendant did, in fact, adequately assert his
ineffective assistance of counsel claim on direct appeal in Hyman I, we do not find that
argument persuasive. The mere fact that defendant stated that Ms. Smallwood labored
under a conflict of interest at defendant’s trial by virtue of the fact that she allegedly
possessed information that could be used to impeach Mr. Speller and pointed out that “it
[was] not at all clear” that Ms. Smallwood’s decision “to remain as counsel and use[ ] the
information [that] she acquired in her representation of [Mr.] Speller to impeach his
testimony, rather than withdrawing as counsel and testifying as a witness,” “was the correct
decision” cannot be understood as the assertion of an explicit claim that Ms. Smallwood’s
failure to withdraw from her representation of defendant and to take the stand as a witness
in his behalf constituted ineffective assistance of counsel given the well-established legal
principle that “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696 (citation
omitted). As a result, while we agree with the Court of Appeals that the ineffective assistance
of counsel claim that defendant raised in his motion for appropriate relief is not procedurally
barred by N.C.G.S. § 15A-1419(a)(3), we reach that result for a different reason than that
found persuasive by the Court of Appeals.

                                             -31-
                                    STATE V. HYMAN

                                   Opinion of the Court



             First, the defendant must show that counsel’s performance
             was deficient. This requires showing that counsel made
             errors so serious that counsel was not functioning as the
             “counsel” guaranteed the defendant by the Sixth
             Amendment. Second, the defendant must show that the
             deficient performance prejudiced the defense.          This
             requires showing that counsel’s errors were so serious as to
             deprive the defendant of a fair trial[.]

Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. As a result, in order to successfully

challenge the trial court’s judgment on the basis of the ineffective assistance of

counsel claim asserted in his motion for appropriate relief, defendant would have had

to establish that Ms. Smallwood was in a position to provide favorable testimony on

defendant’s behalf, that her failure to withdraw from her representation of defendant

in order to testify on his behalf constituted deficient performance, and that, had Ms.

Smallwood acted as defendant contends that she should have acted, there is a

reasonable probability that defendant would have been found not guilty of the first-

degree murder of Mr. Bennett.

      The record developed at trial did not contain any information affirmatively

tending to show that the alleged conversation between Ms. Smallwood and Mr.

Speller actually occurred or whether Ms. Smallwood had a strategic or tactical reason

for failing to withdraw from her representation of defendant and testify before the

jury concerning the statements that Mr. Speller allegedly made to her. Although the

trial court ultimately found that Ms. Smallwood and Mr. Speller never had the

conversation upon which defendant’s ineffective assistance of counsel claim relies,

the fact that the trial court ultimately rejected this aspect of defendant’s claim should

                                          -32-
                                   STATE V. HYMAN

                                   Opinion of the Court



not cause us to overlook the fact that defendant had no hope of making a viable

showing to the contrary based upon the evidentiary record developed at trial, which

consisted of nothing more than Mr. Speller’s denial that the alleged conversation had

ever occurred. Similarly, while defendant made no effort to elicit testimony from Ms.

Smallwood concerning the extent, if any, to which she had a strategic or tactical

reason for refraining from withdrawing from her representation of defendant and

testifying on his behalf, the extent to which her acts or omissions had such a strategic

or tactical motivation was a relevant issue about which the trial record is completely

silent. Finally, the record presented for consideration by the Court of Appeals in

Hyman I is devoid of any affirmative evidence concerning the nature of the

statements that Mr. Speller allegedly made to Ms. Smallwood or the content of the

testimony that Ms. Smallwood would have given had she withdrawn from her

representation of defendant and testified on defendant’s behalf. Although the trial

transcript does contain the questions that Ms. Smallwood posed to Mr. Speller on

cross-examination at defendant’s trial and although these questions do track the

contents of the notes that defendant introduced into evidence at the hearing held for

the purpose of considering defendant’s motion for appropriate relief, the fact that Ms.

Smallwood posed certain questions to Mr. Speller on cross-examination does not

constitute the existence of evidence sufficient to support a finding of fact concerning

the contents of the testimony that Ms. Smallwood would have been able to deliver

had she withdrawn from her representation of defendant and testified on his behalf.


                                          -33-
                                      STATE V. HYMAN

                                      Opinion of the Court



As a result, we hold that defendant was not, in fact, in a position to adequately raise

his ineffective assistance of counsel claim on direct appeal in Hyman I and is not, for

that reason, subject to the procedural bar created by N.C.G.S. § 15A-1419(a)(3) with

respect to the ineffective assistance of counsel claim that is before us in this case.7

       In view of our determination that defendant’s ineffective assistance of counsel

claim is not procedurally barred pursuant to N.C.G.S. § 15A-1419(a)(3), we must next

address the merits of defendant’s ineffective assistance of counsel claim. At the

beginning of our analysis of this issue, we must acknowledge that the trial court

determined that defendant failed to establish that the conversation between Ms.

Smallwood and Mr. Speller, upon which defendant’s ineffective assistance of counsel

claim rests, actually occurred. More specifically, the trial court found as a fact that

defendant presented no credible evidence during the hearing held for the purpose of


       7  The dissenting judge in the Court of Appeals determined that defendant was
procedurally barred from raising the ineffective assistance of counsel claim set out in his
motion for appropriate relief claim because, even if defendant had raised that claim before
the Court of Appeals, as the majority held that he had, defendant “is still procedurally barred
because he failed to raise it through a petition for rehearing to this Court following the
issuance of our prior opinion, which ostensibly ignored his claim,” citing N.C. R. App. P. 31
(authorizing a party to “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’ ”). Hyman III, ___ N.C. App. at ___, 797 S.E.2d at 323. As a result of the
fact that rehearing petitions pursuant to N.C. Rule of Appellate Procedure 31 are only
available in civil cases, defendant had no right to seek rehearing of the Court of Appeals’
decision in Hyman I or Hyman II and cannot be held to have been subject to a procedural bar
for failing to file an unauthorized rehearing petition. Moreover, nothing in N.C.G.S. § 15A-
1419(a)(3) provides any support for a determination that a failure to seek rehearing following
an appellate decision works any sort of procedural bar. As a result, the fact that defendant
did not file any sort of rehearing petition with the Court of Appeals following its decisions in
Hyman I and Hyman II has no bearing on the proper resolution of the procedural default
issue that is before us in this case.

                                             -34-
                                    STATE V. HYMAN

                                   Opinion of the Court



considering defendant’s motion for appropriate relief 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.”

      “A defendant who seeks relief by motion for appropriate relief must show the

existence of the asserted grounds for relief,” N.C.G.S. § 15A-1420(c)(6) (2017), with

“the moving party ha[ving] the burden of proving by a preponderance of the evidence

every fact essential to support the motion,” id. § 15A-1420(c)(5) (2017). As a result,

in order to sustain the ineffective assistance of counsel claim asserted in his motion

for appropriate relief, defendant was required to persuade the trial court, by a

preponderance of the evidence, of the nature and extent of the testimony that Ms.

Smallwood would have provided had she withdrawn from her representation as

defendant’s trial counsel and testified on defendant’s behalf.

      As the record clearly reflects, the trial court found that the alleged

conversation between Ms. Smallwood and Mr. Speller upon which defendant’s

ineffective assistance of counsel claim rests never occurred. Although defendant

contends that the trial court’s findings to this effect lack adequate evidentiary

support,8 we believe that the record contains adequate evidentiary support for the


      8 The record does, of course, contain ample evidence from which a contrary finding
could have been made, including, but not limited to, the content of the questions that Ms.
Smallwood posed to Mr. Speller on cross-examination, the content of the notes found in Ms.

                                          -35-
                                      STATE V. HYMAN

                                      Opinion of the Court



trial court’s findings. We note, as an initial matter, that, while defendant introduced

a document consisting of notes written in Ms. Smallwood’s handwriting dated 20

November 2001, neither Ms. Smallwood nor anyone else ever testified that a

conversation of the nature allegedly memorialized in these notes actually occurred.

Although Ms. Ruffin was able to verify that Mr. Speller and Ms. Smallwood had a

conversation9 and that Ms. Smallwood believed that Mr. Speller would be helpful to

defendant’s defense, Ms. Ruffin acknowledged that she did not hear Mr. Speller make

the statements recounted in the notes that defendant introduced during the

proceedings before the trial court. As a related matter, the fact that the notes in

question were found in Ms. Smallwood’s trial files, while suggestive of a conversation,

does not, without more, tend to establish that a conversation of the type upon which

defendant’s ineffective assistance of counsel claim hinges ever actually occurred. On

the other hand, the fact that Ms. Smallwood and Mr. High had decided before trial


Smallwood’s file concerning defendant’s case, the resemblance of the notes that Ms.
Smallwood utilized during her cross-examination of Mr. Speller at trial to the document
found in Ms. Smallwood’s file, and Ms. Smallwood’s testimony at the remand hearing held as
a result of the Court of Appeals’ decision in Hyman I. However, the fact that such evidence
exists has little to no bearing on the issue that is actually before us, which is whether the
findings of fact that the trial court actually did make had sufficient evidentiary support.
Although the members of this Court might have found the facts differently than the trial
court did, the trial judge, rather than an appellate court, is responsible for resolving factual
disputes in the record given the trial judge’s superior opportunity to make such
determinations.

       9 The conversation that Ms. Ruffin described in her testimony before the trial court,
which allegedly took place in the parking lot outside the law office that she and Ms.
Smallwood utilized, appears to be a different conversation than the one which allegedly took
place in Ms. Smallwood’s office, during which Mr. Speller allegedly told Ms. Smallwood that
Mr. Bennett was killed by Mr. Jordan, rather than defendant.

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                                   STATE V. HYMAN

                                   Opinion of the Court



that Mr. High would assume responsibility for cross-examining Mr. Speller, the fact

that one of the criteria that Ms. Smallwood and Mr. High utilized in determining

which of them would cross-examine each of the State’s witnesses was the extent to

which either Ms. Smallwood or Mr. High knew the witness, and the fact that Ms.

Smallwood had not told Mr. High that she had had a conversation with Mr. Speller

at any point prior to the time that Mr. Speller took the witness stand at defendant’s

trial raises questions about the validity of defendant’s claim that the alleged

conversation between Ms. Smallwood and Mr. Speller ever actually occurred. The

trial court’s finding that the alleged conversation did not, in fact, take place is also

supported by the fact that the time records that Ms. Smallwood submitted to Indigent

Defense Services at the time that she sought payment for the services that she

provided during the course of her representation of defendant contained no indication

that she did any work on defendant’s behalf on the date shown on the notes that Ms.

Smallwood allegedly made during her conversation with Mr. Speller. Finally, Mr.

Speller adamantly insisted during his trial testimony that he never made any

statement to Ms. Smallwood consistent with the information contained in the

handwritten notes found in Ms. Smallwood’s file relating to defendant’s case. As a

result, for all of these reasons, we conclude that the record contains sufficient

evidence to support the trial court’s findings of fact to the effect that the alleged

conversation between Ms. Smallwood and Mr. Speller never occurred.




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                                   STATE V. HYMAN

                                   Opinion of the Court



      Although the Court of Appeals was correct in pointing out that defendant “was

not required to ‘definitely’ prove that [Ms.] Smallwood transcribed the handwritten

notes contemporaneously with any conversation she had with [Mr.] Speller, that the

purported conversation took place on 20 November 2001, or that the conversation

ever took place,” ___ N.C. App. at ___, 797 S.E.2d at 318 (majority), we do believe that

the viability of defendant’s ineffective assistance of counsel claim hinges upon the

extent to which Ms. Smallwood was in a position to properly testify that Mr. Speller

made the statements attributed to him in the notes that were admitted into evidence

at the hearing held in connection with defendant’s motion for appropriate relief. In

the event that the conversation between Ms. Smallwood and Mr. Speller never

happened, Ms. Smallwood could not have properly contradicted Mr. Speller’s trial

testimony from the witness stand because any testimony that she might have given

to that effect would have been perjured. Similarly, in the event that the notes upon

which defendant relies for the purpose of showing the contents of the testimony that

Ms. Smallwood would have been able to deliver had she withdrawn from her

representation of defendant and testified on his behalf did not reflect an actual

conversation between Ms. Smallwood and Mr. Speller, they cannot serve as a basis

for showing the contents of the testimony that she would have been able to provide

had she acted in accordance with the theory that underlies the ineffective assistance

of counsel claim asserted in defendant’s motion for appropriate relief. Although we

agree with defendant’s contention that the mere fact that Ms. Smallwood and Mr.


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                                   STATE V. HYMAN

                                   Opinion of the Court



Speller disagree about the extent to which Mr. Speller made certain statements to

Ms. Smallwood concerning the events that happened at the time of Mr. Bennett’s

death does not, without more, suffice to preclude the allowance of defendant’s motion

for appropriate relief, the complete absence of any testimony from Ms. Smallwood or

some other witness to the effect that the conversation in question did occur and

describing the contents of the conversation that occurred at that time, coupled with

the existence of ample evidentiary support for the trial court’s determination, based

upon its observations during the original trial and subsequent hearings, that the

alleged conversation never took place, suffices to support the trial court’s decision to

deny defendant’s motion for appropriate relief. As a result, for all of these reasons,

we affirm the Court of Appeals’ decision that defendant’s ineffective assistance of

counsel claim is not procedurally barred pursuant to N.C.G.S. § 15A-1419(a)(3),

reverse the Court of Appeals’ decision to overturn the trial court’s order denying

defendant’s motion for appropriate relief, and remand this case to the Court of

Appeals for consideration of remaining challenges to the trial court’s order denying

defendant’s motion for appropriate relief.


      AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.




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