ELMORE, Judge.
On 16 September 2003, Terrence Lowell Hyman (defendant) was convicted of first-degree murder and sentenced to life in prison without parole. After a series of post-trial motions and appeals in state and federal court, defendant filed a motion for appropriate relief in Bertie County Superior Court claiming, inter alia , that he was denied his right to effective assistance of counsel based upon his trial counsels failure to withdraw and testify as a necessary witness. The trial court denied defendants motion.
We allowed defendants petition for writ of certiorari to review the trial courts order denying his motion for appropriate relief. Upon review, we hold the trial court erred in concluding that (1) defendants exculpatory witness claim was procedurally barred under N.C. Gen. Stat. § 15A-1419(a) ; (2) defendants exculpatory witness claim had no evidentiary support; and (3) defendant could demonstrate neither deficient performance nor prejudice which would entitle him to relief under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Reversed.
I. Background
On 30 July 2001, a Bertie County grand jury indicted defendant for the murder of Ernest Lee Bennett Jr., who was shot and killed during a brawl at a crowded nightclub. The trial court appointed Teresa Smallwood and W. Hackney High to represent defendant. He was tried capitally at the 25 August 2003 Special Criminal Session in Bertie County Superior Court, the Honorable Cy A. Grant presiding.
At trial, the State offered testimony from two eyewitnesses, Robert Wilson and Derrick Speller, who both testified that defendant shot Bennett. Wilson testified that he saw defendant enter the nightclub with a .380 caliber handgun. A few seconds later, Wilson heard two gunshots inside and saw Bennett run out of the door. A man following Bennett hit him in the head with a bottle, knocking him out. As Bennett lay on the ground, Wilson saw defendant exit the nightclub and shoot Bennett four times.
Speller testified that defendant walked into the nightclub with a handgun and shot Bennett during the fight. Bennett ran toward the door, clenching his side as defendant continued to shoot. Speller followed out the main entrance where he saw Bennett lying on the ground. He watched defendant kneel over Bennett and shoot him again. As Speller ran toward his car, he heard more gunshots behind him. He turned and saw another man, Demetrius Jordan, shooting a nine-millimeter handgun into the air.
The States medical examiner, Dr. Gilliland, 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. According to Dr. Gilliland, either of the two wounds to Bennetts back would have been fatal. A .380 caliber bullet was recovered from the wound to the right side of Bennetts back. Law enforcement found two .380 caliber casings inside the nightclub. More .380 caliber casings and bullets were recovered outside along with six nine-millimeter casings.
At the close of the States evidence, defendant offered testimony from two witnesses, Lloyd Pugh (L. Pugh) and Demetrius Pugh (D. Pugh), who testified that defendant was not the shooter. L. Pugh, the owner of the nightclub, testified that he heard two gunshots ring out as he was trying to break up the fight. When the shots were fired, he was looking at [defendant] telling him you all get out of here. Defendant did not have a gun. L. Pugh saw defendant and Bennett leave and heard more gunshots coming from outside. At that point or shortly thereafter, L. Pugh ran into defendant at the door as defendant was coming back inside to tend to his cousin, who had been knocked out during the fight. Defendant was still unarmed.
D. Pugh testified that he saw Demetrius Jordan shoot Bennett inside the nightclub with a .380 caliber handgun. Jordan shot Bennett again as Bennett broke for the door and two more times outside. Jordan then retrieved a nine-millimeter handgun from his car and shot Bennett one last time before firing the remaining rounds into the air. D. Pugh never saw defendant with a gun. He testified that defendant had already left through the back door when Jordan first shot Bennett inside the nightclub.
Derrick Spellers Cross-Examination
When the State called Speller to testify at trial, Smallwood informed High for the first time that she had interviewed Speller. She previously represented Speller in an unrelated probation matter and, around that time, had spoken to him about defendants case. During recess after Spellers direct examination, Smallwood retrieved a set of handwritten notes dictating their conversation:
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 dont know who it was.
I heard Demetrius shot him again outside but I dont 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 niggers are lethal.
Can you shoot me a couple of dollars.
Smallwood attempted to cross-examine Speller about their conversation to show that Speller had previously identified Demetrius Jordan as the shooter. Speller conceded that he spoke with Smallwood about the case before trial but denied making any of the statements reflected in her notes. He testified: I told you at that time that I couldnt help you on this case, that I would harm [defendant] more than I could help him if I was brought on the stand to testify. Thats the only conversation that you and I ever had about this case. The trial court did not allow Smallwood to show Speller her notes from the conversation or to admit the notes into evidence at trial.
First Appeal: Hyman I
After his conviction, defendant filed his first appeal with the North Carolina Court of Appeals.
State v. Hyman (Hyman I) , No. COA04-1058, 2005 WL 1804345 (N.C. Ct. App. Aug. 2, 2005). As characterized by the Court, defendant argued that the trial court failed to conduct a hearing when it became aware of a potential conflict of interest on the part of Smallwood, who had previously represented Speller in an unrelated case. Id. at *4. The Court determined:
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 *5 (citing State v. James , 111 N.C.App. 785, 791, 433 S.E.2d 755, 758 (1993) ). Because the Court could not find from the face of the record that defendants attorneys prior representation of Speller affected her representation of defendant, however, it remanded for an evidentiary hearing to determine if the actual conflict adversely affected [Smallwoods] performance. Id. at *6 (citation and internal quotation marks omitted).
Evidentiary Hearing on Remand
The evidentiary hearing was held on 3 October and 2 November 2005 before Judge Grant. Defendant and his trial counsel, Smallwood and High, were all present. The trial court had determined it was in defendants best interest to have new counsel for the hearing and appointed Jack Warmack to represent him.
Warmack had previously represented Telly Swain, a co-defendant charged with Bennetts murder. The State eventually dropped the first-degree murder charge as part of a plea agreement in which Swain pleaded guilty on two lesser offenses and agreed to testify truthfully against any co-defendant upon request by the State. On Warmacks advice, Swain also gave a written statement to police implicating defendant in the murder but Swain did not testify at trial.
Warmack expressed concern over the potential conflict of interest arising from his prior involvement in the case. He informed defendant that he had represented Swain and contacted the State Bar. Warmack ultimately determined he had no conflict of interest because he viewed his role at the remand hearing as a limited one: I didnt think my purpose was to establish that there were-there was no conflict, but to get what [Smallwood] had to say about it on the record so the Court of Appeals could determine whether in their opinion there was a conflict or not. If his appointment had required him to conduct his own investigation to prove that Smallwood had an actual conflict of interest, Warmack explained, then he himself would have been conflicted out.
At the evidentiary hearing, Smallwood testified about her interaction with Speller leading up to defendants trial. Speller had retained Smallwoods law partner, Tonza Ruffin, to represent him on a probation violation matter and at some point Smallwood stepped in for Ruffin to enter a plea on defendants behalf. Smallwood testified that the scope of her representation in the matter lasted maybe five or ten minutes. During that time, Smallwood did not speak to Speller about defendants case. She insisted there was nothing as a result of my representation of [Speller] that I would have obtained regarding [defendant]. Smallwood explained that the conversation with Speller which she alluded to at trial took place from an investigatory standpoint after her representation of Speller and incident to her preparation for defendants trial.
During a recess of the hearing, Judge Grant spoke with the deputy clerk of court about the dates of Spellers probation violation matter. The records indicated that Speller was served with an order of arrest on 18 July 2002 and he appeared in court for a hearing on 26 September 2002. Ruffin was listed as the attorney of record but Smallwood had represented Speller at the hearing. Smallwood was appointed to represent defendant on 14 May 2001.
The trial court entered an order on 28 November 2005 following the evidentiary hearing. In its order, the trial court found:
12. That Ms. Smallwood never spoke with Derrick Speller about his case prior to September 26, 2002 and only spoke with him five or ten minutes prior to the violation hearing.
13. That Attorney Smallwood during her five to ten-minute conversation with Derrick Speller never spoke with Derrick Speller concerning any matter relating to her representation of Terrence Hyman.
14. During her five to ten-minute conversation with Derrick Speller Attorney Smallwood did not obtain any information for or about Derrick Speller that she could have used to impeach or attack Derrick Spellers credibility as a witness during the trial of the defendant Terrence Hyman.
The court ultimately concluded that Smallwoods representation of defendant was not adversely affected by her previous representation of Speller.
Second Appeal: Hyman II
Defendant appealed the order to the North Carolina Court of Appeals, arguing that the trial court erred in concluding Smallwoods prior representation of Speller did not adversely affect her representation of defendant. State v. Hyman (Hyman II) , No. COA06-939, 2007 WL 968753, at *3 (N.C. Ct. App. Apr. 3, 2007). The Court affirmed the order because the uncontested findings showed, inter alia , that there was no overlap of representation, and that during her representation of Speller, Smallwood did not obtain any information about defendant from Speller that she could have used to impeach him at trial. Id. at *4-5. The North Carolina Supreme Court denied defendants petition for writ of certiorari. State v. Hyman , 362 N.C. 685, 671 S.E.2d 325 (2008).
Writ of Habeas Corpus in U.S. District Court
Defendant filed a petition for writ of habeas corpus in the U.S. District Court for the Eastern District of North Carolina pursuant to 28 U.S.C. § 2254. See Hyman v. Beck , No. 5:08-hc-02066-BO (E.D.N.C. Mar. 31, 2010). Defendant maintained that his Sixth Amendment right to effective assistance of conflict-free counsel was violated. The state courts decision to the contrary, he argued, was an objectively unreasonable application of clearly established federal law to the facts of his case.
Granting defendants petition, the court first concluded that defendant had exhausted his state remedies for purposes of § 2254 because the North Carolina Court of Appeals [and] the North Carolina Supreme Court were given a full and fair opportunity to consider the substance of his claim. The court focused its substantive discussion on whether Smallwood had a conflict of interest in that she could have served as a material witness at defendants trial and, in her role as counsel, her questions on cross-examination could not be considered evidence. The attorney-client privilege, the court noted, was not at issue because the lower court found that Smallwood did not obtain any information from Speller about defendant during her representation of Speller.
Guided by Cuyler v. Sullivan , 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the court concluded that defendant was entitled to relief and vacated his conviction. The court explained that Smallwood became a material witness with a conflict of interest when Speller testified in direct contravention to a conversation she had with him and for which she had taken contemporaneous notes. Smallwood ignored that her testimony may have changed the outcome of trial and chose instead to continue as counsel in light of the need to testify herself and proffer impeaching testimony.
Because Smallwoods actual conflict of interest adversely affected her performance, defendant was denied his Sixth Amendment right to effective assistance of conflict-free counsel and any contrary conclusion by the state courts was an objectively unreasonable application of clearly established federal law to the facts of his case.
Appeal to the U.S. Court of Appeals for the Fourth Circuit
The State appealed the district courts order granting the writ of habeas corpus, contesting both the substance and procedural posture of defendants Sixth Amendment claim in federal court. Hyman v. Keller , No. 10-6652, 2011 WL 3489092, at *8 (4th Cir. Aug. 10, 2011). The State argued that defendant procedurally defaulted federal review because he did not fairly raise the exculpatory witness component in the North Carolina courts. Id. at *8-9. The Fourth Circuit agreed that defendant had failed to exhaust his federal claim:
[N]either the Court of Appeals nor the Supreme Court of North Carolina has directly confronted the procedural or substantive propriety of the exculpatory witness component. Instead, the court of appeals decisions in Hyman I and Hyman II each focused on the dual representation conflict issue, and the state supreme court summarily denied Hymans petition for certiorari.
Unfortunately, the basis for the North Carolina courts lack of attention to the exculpatory witness conflict is unclear-perhaps they did not consider that component of Hymans Sixth Amendment claim to be fairly presented, perhaps they meant to implicitly reject it on the merits, or perhaps they simply overlooked it.
Id. at *9-10. In reaching its disposition, the Fourth Circuit explained that dismissing without prejudice mixed habeas petitions, i.e., those involving both exhausted and unexhausted constitutional claims, is no longer a feasible option for a federal court, in that the § 2254 petition could ultimately be adjudged time-barred under [the Antiterrorism and Effective Death Penalty Act of 1996]. Id. at *10. The court decided, based on the unusual circumstances of the case, to employ the stay and abeyance procedure approved by the Supreme Court in connection with unexhausted § 2254 claims. Id. (citing Rhines v. Weber , 544 U.S. 269, 275-78, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) ). Accordingly, the court stayed the appeal to provide the North Carolina courts with an opportunity to weigh in on the procedural and substantive issues. Id. at *11.
Motion for Appropriate Relief
After the Fourth Circuits decision, defendant filed a motion for appropriate relief (MAR) in Bertie County Superior Court. In defendants first and principal claim, characterized by the trial court as Claim 1, he argued that his Sixth Amendment right to effective, conflict-free counsel was violated because one of his trial attorneys was also a crucial defense witness who did not testify due [to] her conflict as his attorney. He separated his claim further into three components, maintaining that each independently entitled him to relief: (a) Smallwood had a conflict between her duties to her former client, the States witness, and her duties to [defendant] (the prior representation component); (b) Smallwood had a conflict in that she was a critical witness for [defendant] but could not testify because she was his attorney (the witness component); and (c) there was a conflict between [defendants] interest in having Smallwood withdraw and present impeachment evidence against a key States witness and Smallwoods own financial interest in remaining on [defendants] case (the financial component).
An evidentiary hearing for defendants MAR was held on 3 June 2014 before Judge Grant in Hertford County Superior Court. Defendant was present, represented by attorneys Mary Pollard and Nicholas C. Woomer-Deters, and offered testimony from W. Hackney High, defendants trial counsel; Tonza Ruffin, Smallwoods law partner; Andrew Warmack, defendants counsel from the evidentiary hearing; and Ravi Manne, an attorney with North Carolina Prisoner Legal Services. Despite his efforts, defendant was unable to produce Smallwood as a witness. Smallwood was disbarred almost three and a half years after defendants trial for separate misconduct and had since left the state.
Ruffins testimony tended to authenticate Smallwoods notes and confirm Smallwoods purported conversation with Speller. Prior to defendants trial, Ruffin was under the impression that [Derrick] Speller had information that would be helpful to the case. She was familiar with Smallwoods handwriting and identified the notes dated 20 November 2001 with Spellers name at the top as those written by Smallwood. She did not remember being present when the notes were written but she was present when Speller and Smallwood met in the parking lot of her law office:
A. I remember him coming having [sic] a conversation. I remember believing that he was going to be helpful to Ms. Smallwood. But I dont remember the exact conversation.
THE COURT: Do you remember anything Teresa may have said to you after he left about what he may have said?
A. Yes.
THE COURT: Go ahead.
A. I remember him-I mean, I remember Teresa saying that he claimed that he saw everything. I remember him-I dont remember her seeking him out. I remember him seeking her out saying that basically I can help you; I was there that night; I saw everything that went down.
BY MS. ASBELL:
Q. And thats your memory of what Ms. Smallwood told you?
A. Thats my memory of what Ms. Smallwood told me and thats my memory of his attitude when he was in the parking lot that day. But I cant tell you verbatim what he said in the parking lot. But he definitely wanted to be helpful in the case.
Ruffin later testified that Speller came over on other occasions but she did not participate in those meetings.
During Ruffins cross-examination, the State presented a copy of Smallwoods time sheet, which showed no entry for 20 November 2001 and no entry for an interview of Derrick Speller. (There was a 30 November 2001 entry for file review, witness interview.) Ruffin confirmed that attorneys submit their time sheets with Indigent Defense Services (IDS) to be paid and agreed that Smallwoods entries were otherwise very specific. But when asked if she would list every single thing that you do for a client, Ruffin replied, We try to but a lot of times we dont. Later at the hearing, Manne offered his own opinion about the time sheets: I dont know that I would view the time sheets as controlling. I know for my time keeping [ ] I dont put everything on the exact date at the same time.
High testified about his professional relationship with Smallwood and how the events involving Speller unfolded at trial. High and Smallwood had some problems when they first began working on defendants case. There was even an occasion when Smallwood attempted to have High removed as co-counsel but they were able to put that aside and work together fairly well from that point forward. Prior to trial, High had some indication that Speller would testify against defendant. Because Speller never provided a written statement to police, however, High did not know specifically what [Speller] was going to say.
High and Smallwood initially agreed that High would cross-examine Speller if the State called him as a witness. High explained that they had divided the witness list in a way that would even out the work but if Smallwood had a particular knowledge of a witness or what their style was she might say well its better for me to handle this one, why dont you get the next one. That plan changed in a spur of the moment decision when Smallwood revealed to High that she had previously spoken to Speller. High testified:
We do our best to anticipate the witness order that the state will call the witnesses in. But you never know for sure and so its always a crapshoot until you actually hear the District Attorney say the next witness who will be called will be so and so.
So when [Derrick] Spellers name was called as the next witness in that manner, Ms. Smallwood kind of leaned over to me and said dont worry about this one, Ive got it.
High recalled Smallwood leaving court during recess and returning from her office with several documents. She told High that she had notes from a prior conversation with Speller, and she would use her notes to impeach Speller on cross-examination.
The trial court also heard arguments at the hearing on the admissibility of Smallwoods testimony had it been offered at trial. The State argued that Smallwoods testimony would not have been admissible because once Speller denied the conversation, Smallwood was stuck with his answer and could not introduce extrinsic evidence as to what Speller allegedly told her. And even if she had withdrawn to take the stand, the extent of her permissible testimony would have been: [Derrick] Speller told me something different than what he testified to. Defendant, in response, argued that Smallwoods testimony would have been admissible because it went to a material fact in issue, i.e., the identity of the shooter.
After the hearing, the trial court notified the parties in writing that it would enter an order denying defendants MAR. As the sole basis for its denial, the court concluded that Smallwood could not have testified about Derrick Spellers prior inconsistent statement to her, and introduced her notes or the conversation where he made that statement, after Derrick Speller denied making the statement on cross-examination. The court thereafter adopted a forty-five-page order, prepared by the State, denying all claims within defendants MAR.
Notably, the trial court made the following findings in its order regarding the alleged conversation between Smallwood and Speller:
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 Defendants 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 purported conversation between Ms. Smallwood and Speller took place on the date appearing on Defendants 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 Defendants MAR Exhibit 1 and Ms. Smallwoods cross-examination of Speller at Defendants trial that Ms. Smallwood wrote the notes admitted as Defendants 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.
Although the court recognized the significance of Ruffins testimony at the hearing, evidence that Smallwoods time sheet contained no entry for 20 November 2001 and that High did not learn about the conversation until trial both indicated to the court that the conversation never took place.
Regarding defendants Claim 1(b) (the exculpatory witness claim), the trial court concluded that defendants claim was procedurally barred under N.C. Gen. Stat. § 15A-1419(a) and, alternatively, without merit. Applying the standard set forth in Strickland , 466 U.S. at 687, 104 S.Ct. 2052, the court concluded that defendant could demonstrate neither deficient performance nor prejudice based upon Smallwoods failure to withdraw and testify as a witness. And to the extent Sullivan , 446 U.S. at 350, 100 S.Ct. 1708, applied to defendants exculpatory witness claim, the court concluded that the claim was still meritless because he failed to present evidence establishing that any actual conflict of interest existed which had an adverse effect on Ms. Smallwoods representation of defendant.
Defendant filed a petition for writ of certiorari, which we allowed, seeking review of the trial courts order denying his MAR. Defendant contends that (1) he was not procedurally barred from raising the exculpatory witness claim and, alternatively, any failure to properly assert the claim in Hyman I was due to ineffective assistance of appellate counsel; (2) he was not procedurally barred from raising the dual representation claim and, alternatively, any failure to properly assert the claim in Hyman II was due to ineffective assistance of counsel owing to Warmacks conflict of interest; (3) the trial courts material factual findings were entered pursuant to an incorrect evidentiary standard and are not supported by the evidence; and (4) defendant was denied his right to effective assistance of counsel and is entitled to relief under Sullivan or, alternatively, under Strickland .
II. Discussion
We review the trial courts rulings on 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) ). The trial courts findings of fact are binding on appeal if they are supported by competent evidence. State v. Morganherring , 350 N.C. 701, 714, 517 S.E.2d 622, 630 (1999). The trial courts conclusions of law, however, are fully reviewable on appeal. State v. Lutz , 177 N.C.App. 140, 142, 628 S.E.2d 34, 35 (2006) (quoting State v. Wilkins , 131 N.C.App. 220, 223, 506 S.E.2d 274, 276 (1998) ).
A.
We first address whether the trial court erred in applying a procedural bar to defendants exculpatory witness claim.
N.C. Gen. Stat. § 15A-1419(a) (2015) provides four grounds for the denial of a motion for appropriate relief, including: Upon 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. Gen. Stat. § 15A-1419(a)(3). Where such grounds exist, the trial court must deny the motion unless the defendant can show (1) good cause for excusing the grounds for denial and actual prejudice resulting from the defendants claim; or that (2) the failure to consider the defendants claim will result in a fundamental miscarriage of justice. N.C. Gen. Stat. § 15A-1419(b) (2015).
The statute clarifies that good cause exists only where the defendant establishes by a preponderance of the evidence that his failure to raise the claim or file a timely motion was, among other reasons, due to ineffective assistance of trial or appellate counsel. N.C. Gen. Stat. § 15A-1419(c)(1) (2015). And to demonstrate actual prejudice, the defendant must show by a preponderance of the evidence that an error during the trial or sentencing worked to the defendants actual and substantial disadvantage, raising a reasonable probability, viewing the record as a whole, that a different result would have occurred but for the error. N.C. Gen. Stat. § 15A-1419(d) (2015). Finally, the trial courts failure to consider the otherwise barred claim results in a fundamental miscarriage of justice only if [t]he defendant establishes that more likely than not, but for the error, no reasonable fact finder would have found the defendant guilty of the underlying offense. N.C. Gen. Stat. § 15A-1419(e)(1) (2015).
The trial court concluded that defendants claim was procedurally barred under N.C. Gen. Stat. § 15A-1419(a)(3). In the record on appeal in Hyman I , defendant included the following assignment of error:
10. Defendant was denied the assistance of counsel because his attorney failed to withdraw from representation when it became apparent that she had a conflict of interest.
The trial court viewed defendants tenth assignment of error as a clear indication that defendant contemplated arguing an ineffective assistance of counsel claim based upon Ms. Smallwoods failure to withdraw and testify. In his appellate brief, however, defendant did not identify what he is now squarely raising in Claim 1(b) as a ground for reversal on appeal. While defendant made references in the body of his brief to Ms. Smallwoods failure to withdraw and testify, he did so under the following assignment of error: The trial court erred in failing to conduct a hearing when the court became aware of a conflict of interest on the part of one of defendants attorneys who had previously represented Derrick Speller, one of the States witnesses. The trial court concluded, therefore, that defendants claim was procedurally barred because he was in a position to adequately raise his claim in Hyman I but failed to do so. The court further concluded that because defendants claim was meritless, the procedural bar has not been excused pursuant to N.C.G.S. § 15A-1419(b) by showing good cause and actual prejudice, or that a fundamental miscarriage of justice would occur for this Courts failure to review the barred claim.
An examination of defendants references to the exculpatory witness claim within his first appellate brief, alluded to by the trial court, reveals the extent to which defendant attempted to raise the claim on appeal in Hyman I :
Defense 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 States most crucial witnesses. This information consisted of statements he made to her implicating Demetrius Jordan and exonerating Defendant, which directly contradicted his testimony at trial. Although 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. It is certainly arguable that the information she had to impart would have carried more weight had she been on the stand testifying under oath. Nor is it clear that Defendant was aware of the conflict and had acquiesced in counsels actions.
Reviewing defendants brief with the benefit of hindsight, it would have been more helpful had defendant argued his claim pursuant to the tenth assignment of error. Nevertheless, the foregoing excerpt from his brief and a fair reading of the cases cited for support therein, see, e.g. , State v. Green , 129 N.C.App. 539, 551-52, 500 S.E.2d 452, 459-60 (1998) (holding that trial court properly conducted an inquiry into conflict of interest owing to counsels decision not to pursue line of questioning which could have required counsel himself to withdraw and testify), indicates that the Court could have addressed the claim as it was presented despite the formerly rigid rule of appellate procedure requiring assignments of error. While perhaps unartfully, defendant adequately raised the exculpatory witness claim when he was first in a position to do so. That the issue was never explicitly addressed thereafter-for whatever reason-should not bar defendants claim under N.C. Gen. Stat. § 15A-1419(a), and the trial court erred in concluding otherwise.
B.
Next, we address defendants challenge to the trial courts material factual findings regarding the conversation between Smallwood and Speller.
The trial court found that defendant offered no credible evidence at the MAR hearing that Smallwood transcribed the handwritten notes contemporaneously with any conversation she had with Speller, that the purported conversation took place on 20 November 2001, or that the conversation ever took place. Based solely upon Smallwoods notes and her cross-examination of Speller at trial, the court also could not definitely find any of the foregoing had occurred, implying that Smallwood fabricated the evidence at trial. Relying on these findings, the court concluded that there was no evidence to support defendants exculpatory witness claim.
At an evidentiary hearing on a motion for appropriate relief, the moving party has the burden of proving by a preponderance of the evidence every fact essential to support the motion. N.C. Gen. Stat. § 15A-1420(c)(5) (2015) (emphasis added). As defendant points out, therefore, he was not required to definitely prove that Smallwood transcribed the handwritten notes contemporaneously with any conversation she had with Speller, that the purported conversation took place on 20 November 2001, or that the conversation ever took place. More importantly, that the court was unable to definitely find any of the foregoing occurred is not dispositive of defendants exculpatory witness claim.
It is undisputed that, at the time of defendants trial, Smallwood possessed evidence tending to show that Speller made a prior inconsistent statement concerning the identity of the shooter. The exculpatory witness claim raised in defendants MAR was whether Smallwoods failure to withdraw and testify as to that alleged prior inconsistent statement constitutes ineffective assistance of counsel. Evidence that Smallwood was privy to a conversation in which Speller identified the shooter as someone other than defendant would have been both relevant and material had it been offered at trial. Admissibility is, of course, a separate issue but one that does not depend upon a preliminary finding by the court that a witnesss testimony is credible. See N.C. Gen. Stat. § 8C-1, Rule 104(e) (2015) (This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.).
If otherwise competent, therefore, Smallwoods testimony would have been admissible and within the purview of the jury to assign weight and credibility thereto. See State v. Scott , 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988) (The credibility of the witnesses and the weight to be given their testimony is exclusively a matter for the jury. (citing State v. Wilson , 293 N.C. 47, 235 S.E.2d 219 (1977) )); State v. Gamble , --- N.C.App. ----, ----, 777 S.E.2d 158, 165 (2015) (The witnesss credibility is a matter for the court when the only testimony justifying submission of the case to the jury is inherently incredible and in conflict with [the proponents] own evidence. (citations and internal quotation marks omitted)). The jury could have believed Smallwoods testimony, in which case her failure to withdraw and testify would tend to support defendants claim for ineffective assistance of counsel. Because the trial courts findings were not germane to the adjudication of defendants exculpatory witness claim, they do not support its conclusion that defendants claim is meritless for lack of evidentiary support.
C.
Next, we address the substance of defendants exculpatory witness claim and his challenge to the trial courts conclusions that he received effective assistance of counsel despite Smallwoods failure to withdraw and testify at trial.
Defendant maintains that he received ineffective assistance of counsel due to Smallwoods failure to withdraw as counsel and testify as to Spellers alleged prior inconsistent statement regarding the identity of the shooter. In her role as counsel, Smallwoods questions on cross-examination could not be considered evidence by the jury. Therefore, defendant argues, when Speller denied the prior inconsistent statement during cross-examination, Smallwood had an actual conflict of interest between continuing as counsel or withdrawing to testify as a necessary witness. Defendant contends that because Smallwoods actual conflict of interest adversely affected her performance as counsel, he is entitled to relief under Sullivan , 446 U.S. at 348, 100 S.Ct. 1708. Alternatively, defendant claims he is entitled to relief under Strickland , 466 U.S. at 687, 104 S.Ct. 2052, because Smallwoods decision to remain as counsel fell below an objective standard of reasonableness and prejudiced his defense.
A criminal defendants Sixth Amendment right to counsel means the right to the effective assistance of counsel. McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Effective assistance of counsel includes a right to representation that is free from conflicts of interest. Wood v. Georgia , 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (citations omitted). In counsels role, he or she owes the client a duty of loyalty, which is perhaps the most basic of counsels duties. Strickland , 466 U.S. at 688, 692, 104 S.Ct. 2052.
To prevail on a claim of ineffective assistance of counsel, a defendant typically must show that counsels performance was deficient and the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052 ; see also State v. Braswell , 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985) (adopting the standard set forth in Strickland to review claims of ineffective assistance of counsel under the North Carolina Constitution). The U.S. Supreme Court has applied a different standard, however, to review claims of ineffective assistance of counsel based upon a conflict of interest. Sullivan , 446 U.S. at 349-50, 100 S.Ct. 1708. Under Sullivan , a defendant who shows that his counsel actively represented conflicting interests and that conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. Id. ; see also Mickens v. Taylor , 535 U.S. 162, 172-73, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) ; State v. Choudhry , 365 N.C. 215, 219, 717 S.E.2d 348, 352 (2011). A presumption of prejudice arises because it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Strickland , 466 U.S. at 692, 104 S.Ct. 2052.
The North Carolina Supreme Court has previously addressed whether an attorneys decision not to withdraw and testify as a witness for his client created an actual conflict of interest reviewable under Sullivan rather than Strickland . In State v. Phillips , 365 N.C. 103, 711 S.E.2d 122 (2011), the defendant moved to suppress evidence of his confession because he was substantially impaired from drugs and alcohol and unable to understand the consequences of his actions when he waived his Miranda rights. Id. at 109-11, 711 S.E.2d at 130-31. The police chief, Gary McDonald, had apparently told the defendants attorney, Bruce Cunningham, that the defendant was stoned out of his mind when he confessed to shooting four people. Id. at 115, 117, 711 S.E.2d at 133, 134. When Cunningham confronted Chief McDonald about the alleged statement on cross-examination and presented handwritten notes of the conversation, Chief McDonald testified that he did not recall making the statement. Id. at 117-18, 711 S.E.2d at 134-35.
The defendant appealed his conviction, arguing that he was deprived of his Sixth Amendment right to conflict-free counsel because Cunningham failed to withdraw and testify as a witness for defendant, depriving him of conflict-free counsel. Id. at 116-17, 711 S.E.2d at 134. He claimed that a withdrawal was necessary because attorney Cunningham remembered Chief McDonald making certain statements to Cunningham that Chief McDonald did not himself recall. And because Cunningham could not serve as both an advocate and a necessary witness at trial, see N.C. St. B. Rev. R. Prof. Conduct 3.7 (Lawyer as a Witness), 2017 Ann. R. N.C. 1242, Cunningham had an actual conflict of interest which entitled the defendant to relief under Sullivan . Id. at 117-18, 711 S.E.2d at 135. Our Supreme Court concluded, however, that the defendants claim should be reviewed under Strickland :
The applicability of the Sullivan line of cases has been carefully cabined by the United States Supreme Court. The purpose of our Holloway and Sullivan exceptions from the ordinary requirements of Strickland ... is not to enforce the Canons of Legal Ethics, but to apply needed prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of the defendants Sixth Amendment right to counsel. Here, unlike the circumstances posited in Holloway where counsel has been effectively silenced and any resulting harm difficult to measure, defendant has identified the single matter to which attorney Cunningham could have testified had he withdrawn as counsel. Because the facts do not make it impractical to determine whether defendant suffered prejudice, we conclude that Strickland s framework is adequate to analyze defendants issue.
Id. at 121-22, 711 S.E.2d at 137 (quoting Mickens , 535 U.S. at 176, 122 S.Ct. 1237 ).
Guided if not bound by Phillips , we believe Strickland provides an adequate framework to review defendants exculpatory witness claim. Despite Smallwoods prior representation of Speller, the record shows that the purported conversation between Smallwood and Speller took place from an investigatory standpoint in preparation for defendants trial. Because that conversation was outside the scope of her representation, Smallwood would not have bound by a duty of confidentiality. By the same token, Smallwood was not effectively silenced from testifying about the conversation and the information she learned from Speller. As the facts of this case do not make it impractical to determine whether defendant suffered prejudice, Phillips , 365 N.C. at 122, 711 S.E.2d at 137, we apply Strickland s framework to evaluate defendants exculpatory witness claim.
As stated above, Strickland requires a defendant to first show that counsels performance was deficient. Strickland , 466 U.S. at 687, 104 S.Ct. 2052. To establish deficient performance, the defendant must demonstrate that counsels representation fell below an objective standard of reasonableness. Wiggins v. Smith , 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland , 466 U.S. at 688, 104 S.Ct. 2052 ); see also State v. Allen , 360 N.C. 297, 316, 626 S.E.2d 271, 286, cert. denied , 549 U.S. 867, 127 S.Ct. 164, 166 L.Ed.2d 116 (2006).
The trial court concluded that defendant could not demonstrate deficient performance because Smallwoods testimony would not have been admissible at trial. And even if it would have been admissible, the court concluded, Smallwood could only have testified that Demet had a .380 and [h]e shot the guy and ran out the back door. We disagree.
Our common law rules have restricted the use of extrinsic evidence to impeach the credibility of a witness. As articulated in State v. Stokes , 357 N.C. 220, 581 S.E.2d 51 (2003), a case decided prior to defendants murder trial, 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. Id. at 226, 581 S.E.2d at 55 (citing State v. Green , 296 N.C. 183, 192-93, 250 S.E.2d 197, 203 (1978) ); see also 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence §§ 159-61 (7th ed. 2011). If the prior inconsistent statement relates to a material matter, then it may be proved by other witnesses without first calling [it] to the attention of the main witness on cross-examination. Green , 296 N.C. at 193, 250 S.E.2d at 203 (citations omitted). If it is collateral but tends to show bias, motive, or interest of the witness, the inquirer must first confront the witness with the prior statement so that he may have an opportunity to admit, deny or explain it. Id. ; see also State v. Long , 280 N.C. 633, 639, 187 S.E.2d 47, 50 (1972). If the witness denies making the statement, the inquirer is not bound by the witnesss answer and may prove the matter by other witnesses. Green , 296 N.C. at 193, 250 S.E.2d at 203.
It cannot seriously be disputed that the identity of the shooter was a material issue in defendants murder trial. Smallwood, who possessed evidence of Spellers prior inconsistent statement regarding the shooters identity, was not bound to accept Spellers answers on cross-examination. Smallwoods testimony, had it been offered, would have been admissible to impeach Speller by showing that he had previously identified Jordan as the shooter. And contrary to the trial courts conclusion, we do not believe such exculpatory evidence would have been inconsequential so as to justify Smallwoods failure to withdraw.
Smallwoods testimony would have also been admissible to show Spellers bias or interest in the trial. Jordan was initially charged with Bennetts murder and spent two years in jail before he was released. Speller testified that he and Jordan work[ed] the same job. After the charges against Jordan were dropped, he sent Speller to the district attorney to offer a statement implicating defendant in the murder. The trial court even expressed concern over this aspect of the case during the charge conference:
I think Mr. Jordans credibility is at issue in this case.... At least one of your witnesses-one of your very key witnesses ... Derrick Speller testified that he came to you as a result of what Demetrius Jordan said to him, if Im not mistaken. Demetrius Jordan told him to go see you. Had it not been for that he may not even have been involved in the case. So the question is, why is Demetrius Jordan running around rounding up witnesses for the State.
At the same time ... you have a situation where the State of North Carolina has dismissed very serious cases against Mr. Jordan-a case of second-degree murder-and allowed him to plea to something much less to the point where he is now out of jail....
Speller testified at trial that he never gave a statement to police because nobody never asked me. That explanation was different than what Smallwood had dictated in her notes: [Speller] never gave a statement to the police because he hustled for Demet and Turnell and them niggers are lethal.
While the admissibility of Smallwoods testimony does not in and of itself establish deficient performance, the circumstances surrounding her decision to remain as counsel leads us to that conclusion. Smallwood was the only witness to Spellers prior inconsistent statement. Her questions to Speller could not be considered as evidence and, after her ineffective cross-examination, she became a necessary witness at trial with a duty to withdraw. See N.C. St. B. Rev. R. Prof. Conduct 3.7(a) (A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness....), 2017 Ann. R. N.C. 1242. Her testimony undoubtedly related to a contested issue in the case and tended to discredit one of the States two key witnesses. High could have remained as defendants counsel and the court could have appointed a second attorney even if it meant declaring a mistrial. By failing to withdraw and testify, Smallwoods conduct fell below an objective standard of reasonableness and was deficient under Strickland .
Next, we address whether defendant satisfied the requisite showing of prejudice for relief under Strickland . To show prejudice, a defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland , 466 U.S. at 694, 104 S.Ct. 2052.
The trial court concluded that defendant could not establish prejudice in light of Smallwoods effective cross-examination of Speller, Wilsons testimony, and the States cross-examination of D. Pugh based upon his prior inconsistent statement to law enforcement. We disagree.
If Smallwood had properly withdrawn, she could have testified that Speller, one of only two key witnesses for the State, had previously told her that it was Jordan-not defendant-who shot Bennett. She could have attacked Spellers credibility through his prior inconsistent statement and evidence of his interest in the trial. Her testimony tended to discredit nearly half the States case and, in conjunction with the testimony of L. Pugh and D. Pugh, would have provided an evidentiary advantage to the defense.
Wilson, the only other witness to identity defendant as the shooter, had his own credibility issues. He had testified as a States witness in the past and, during defendants trial, revealed that he had been convicted of breaking and entering, two counts of second-degree burglary, larceny of a firearm, larceny of a motor vehicle, four counts of driving while license revoked, four counts of driving while impaired, two counts of injury to property, communicating threats, assault with a deadly weapon, and forgery and uttering-all within the last ten years . Judge Grant even remarked at the MAR hearing: We all know Robert Wilson.... And a record like that, right, we know him.
The States cross-examination of D. Pugh also does not foreclose a showing of prejudice. D. Pugh denied making a prior inconsistent statement to police, asserting that when he was arrested days after the murder on unrelated charges, police gave him a blank sheet of paper to sign and initial, which he did, and they later wrote out a statement implicating defendant. The statement was not introduced at trial, and despite the States cross-examination, D. Pughs testimony implicating Jordan as the shooter would nevertheless have bolstered Smallwoods impeachment evidence against Speller.
Finally, we agree with defendant that, as a practical matter, Smallwoods testimony could have rehabilitated her own credibility as an advocate at trial, which has been described as [a] cardinal tenet of successful advocacy. State v. Moorman , 320 N.C. 387, 400, 358 S.E.2d 502, 510 (1987). Even from a cold record we can tell that Smallwoods cross-examination was, in defendants own words, disastrous. Speller denied her every attempt to establish that he had given a prior inconsistent statement or that their conversation took place. His steadfast repudiation bolstered his own credibility and impeached Smallwoods credibility as an advocate. In a case that came down to the credibility of the witnesses, there is a reasonable probability that, had Smallwood withdrawn and testified as to Spellers prior inconsistent statement, the result would have been different.
III. Conclusion
We conclude that defendant was denied his right to effective assistance of counsel based upon Smallwoods failure to withdraw and testify as a necessary witness at trial. Because defendant is entitled to relief under Strickland on his exculpatory witness claim, we need not address his remaining arguments to this Court. The trial courts order denying his MAR is reversed.
REVERSED.
Judge HUNTER, JR. concurs.
Judge DILLON dissents by separate opinion.
The State and defendant had both consented to a change of venue from Bertie County to Hertford County.