PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
TERRY ALVIN HYATT,
Petitioner-Appellant,
v.
GERALD BRANKER, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee.

No. 08-15

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(1:05-cv-00055-LHT)
Argued: May 14, 2009
Decided: June 23, 2009
Before NIEMEYER, MOTZ, and TRAXLER,
Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Niemeyer and Judge Traxler joined.

COUNSEL
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF,
WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for
Appellant. Valerie Blanche Spalding, NORTH CAROLINA

HYATT v. BRANKER

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellee. ON BRIEF: Faith S. Bushnaq, BUSHNAQ LAW
OFFICE, PLLC, Charlotte, North Carolina, for Appellant.
Roy Cooper, Attorney General of North Carolina, Raleigh,
North Carolina, for Appellee.

OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
After a North Carolina jury convicted Terry Alvin Hyatt of
two counts each of murder, rape, kidnapping, and robbery, a
state court sentenced him to death. Hyatt now appeals the district courts denial of his petition for federal habeas relief.
Hyatt obtained a certificate of appealability as to whether the
state court violated his (1) Fifth and Fourteenth Amendment
rights in refusing to suppress incriminating statements made
by Hyatt without the benefit of counsel, (2) his Sixth Amendment rights by denying his request to discharge his courtappointed attorneys after the trial began, and (3) his Fourteenth Amendment due process rights by failing to instruct the
jury on a lesser-included offense. For the reasons that follow,
we affirm the district courts denial of habeas relief.
I.
We begin with a summary of the factsfirst those relating
to Hyatts crimes and subsequent trial in state court and then
those relating to Hyatts post-conviction proceedings.
A.
On direct review of Hyatts conviction, the Supreme Court
of North Carolina fully set forth the facts relating to Hyatts
crimes. See State v. Hyatt, 566 S.E.2d 61, 6567 (N.C. 2002).
We briefly summarize those facts here and later set forth addi-

HYATT v. BRANKER

tional facts as necessary to understand each of Hyatts particular claims.

On August 13, 1998, while intoxicated, Jerry Harmon visited the sheriffs department in Buncombe County, North Carolina. He provided officers with information relating to the
murder of Betty Sue McConnell, which had occurred two decades earlier, in August 1979. Harmon stated that he and Terry
Hyatt abducted Ms. McConnell and that Hyatt then raped and
murdered her. Harmon also suggested that Lester Dean Helms
might have additional information about Hyatt. In October
1998, law enforcement officers interviewed Helms, who told
them that Hyatt kidnapped and murdered another woman
Harriet Delaney Simmonsin April 1979.
Law enforcement officers then questioned Hyatt with
respect to these crimes. After Hyatt made incriminating statements, the officers arrested him. A grand jury in Buncombe
County, North Carolina, subsequently indicted Hyatt for the
first-degree kidnapping, robbery with a dangerous weapon,
first-degree rape, and first-degree murder of both Ms. Simmons and Ms. McConnell.
At trial, the State offered evidence that just after midnight
on April 14, 1979, Ms. Simmons left Raleigh, North Carolina,
and began driving to Nashville, Tennessee. Helms and Hyatt
encountered Ms. Simmons at a rest stop where she was having car trouble. Ms. Simmons entered their van after they
offered to help. Helms and Hyatt then drove to a secluded,
wooded area, and Hyatt raped Ms. Simmons in the back of the
van. Hyatt, who was carrying a knife at the time, then took
Ms. Simmons into the woods. Helms heard Ms. Simmons
scream. Hyatt returned to the van alone with blood on his
shirt. A year later, the sheriffs department located Ms. Simmonss remains and personal effects. An autopsy revealed
that Ms. Simmons died from multiple stab wounds to her
chest.

HYATT v. BRANKER

Regarding the murder of Ms. McConnell, the State offered

evidence that, on August 24, 1979, Jerry Harmon and Terry
Hyatt spent the day together. While drinking and driving
around, they encountered Ms. McConnell. Hyatt drove his
truck into Ms. McConnells car, pushing it off the road. He
then forced Ms. McConnell into the passenger seat of her car
and drove her to an isolated, wooded area near a river. Harmon followed behind them, and he watched as Hyatt raped
Ms. McConnell. Hyatt, again armed with a knife, took Ms.
McConnell down to the river, out of Harmons sight. Harmon
heard Ms. McConnell scream. Upon his return, Hyatt told
Harmon that he had stabbed Ms. McConnell and thrown her
into the river. Hyatt then drove Ms. McConnells car into the
river some distance away. The next morning, a nearby resident discovered Ms. McConnell on his driveway. Ms.
McConnell was soaking wet, and her chest was covered with
blood. Prior to dying from the stab wounds to her chest, Ms.
McConnell stated that she "was picked up at work by two
guys" and then "stabbed and thrown into the river."
The jury convicted Hyatt on all counts and then recommended sentences of death for both murder convictions. The
trial court entered two capital sentences and six consecutive
sentences of life imprisonment for the noncapital offenses.
The Supreme Court of North Carolina affirmed on direct
appeal, Hyatt, 566 S.E.2d at 80, and the United States
Supreme Court denied certiorari, Hyatt v. North Carolina,
537 U.S. 1133 (2003).
B.
On October 31, 2003, Hyatt filed his first post-conviction
motion for appropriate relief in the Superior Court of Buncombe County. He amended the motion on December 23,
2003. The state trial court denied relief on January 23, 2004,
and the Supreme Court of North Carolina denied certiorari.

HYATT v. BRANKER

Hyatt filed a second post-conviction motion for appropriate

relief in state court on April 15, 2005. The court denied Hyatt
relief, and the state supreme court again denied certiorari.
On December 10, 2007, Hyatt filed this federal habeas petition in the United States District Court for the Western District of North Carolina pursuant to 28 U.S.C. 2254 (2006).
The district court denied relief but granted a certificate of
appealability on numerous issues, only two of which Hyatt
pursues before us, namely whether the state court denied
Hyatt counsel of his choice and whether that court erred in
failing to suppress certain incriminating statements that Hyatt
had made during his initial interrogation.
Hyatt noted a timely appeal. We granted a certificate of
appealability on one additional claim: whether the state court
committed constitutional error in refusing to instruct the jury
as to lesser-included offenses.
II.
We review the district courts denial of a habeas petition de
novo. Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003).
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), however, limits the scope of our review of state
convictions. See Williams v. Taylor, 529 U.S. 362, 40213
(2000). If the state court adjudicated a claim on its merits, a
federal court may only grant habeas relief if the state decision
"was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States," or "was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. 2254(d) (2006);
see also Larry v. Branker, 552 F.3d 356, 365 (4th Cir. 2009).
"AEDPA also requires federal habeas courts to presume the
correctness of state courts factual findings unless applicants
rebut this presumption with clear and convincing evidence."

HYATT v. BRANKER

Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting

28 U.S.C. 2254(e)(1) (2006)).
With this standard governing our review, we turn to Hyatts
contentions.
III.
Initially, Hyatt argues that North Carolina law enforcement
officers violated his rights under Miranda v. Arizona, 384
U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477
(1981), by denying him assistance of counsel during a custodial interrogation and by deceiving him during the course of
the interrogation. He further contends that the state court violated clearly established federal law by failing to suppress the
incriminating statements he made when interrogated in this
assertedly unconstitutional manner.
A.
Hyatts argument rests on the facts surrounding his initial
interrogation by law enforcement officers. On November 19,
1998, Tim Shook, a special agent with the North Carolina
State Bureau of Investigation, and Anne Benjamin, a detective
with the Buncombe County Sheriffs Department, visited
Hyatt at his home. They told Hyatt that they were investigating a murder that had occurred earlier in that year; Hyatt then
offered to provide a DNA sample to clear his name. Hyatt
voluntarily drove his truck to the Buncombe County Public
Health Department for a blood draw.
After Hyatt gave the blood sample, he and the officers
drove to the Buncombe County sheriffs office. Upon arrival
at the interview room, Agent Shook explained that the officers
were actually investigating the abduction, rape, and murder of
Betty Sue McConnell. The officers told Hyatt (falsely) that
they possessed fingerprint evidence connecting him to the
scene of the crime. Hyatts demeanor changed, and he became

HYATT v. BRANKER

silent. Agent Shook read Hyatt his Miranda rights, and Hyatt
signed an acknowledgement to this effect. Hyatt agreed to
speak with the officers, but he asked to speak with his father
first.
The officers handcuffed Hyatt, and Agent Shook, Detective
Benjamin, and Pat Hefner, the captain of the Buncombe
County Sheriffs Department, drove him to his fathers house.
He remained handcuffed throughout the visit. Hyatt and his
father first spoke on the back porch. Hyatt told his father that
he was in trouble for something that had occurred a long time
ago. According to Hyatts father, Hyatt stated, "I want you to
get me a lawyer." Although Hyatt and his father whispered,
Hyatts father testified that Agent Shook, who stood ten or
twelve feet away, was close enough to hear their conversation, including Hyatts request for a lawyer. Agent Shook
acknowledged that he "could hear most everything" but
unequivocally testified that he did not hear Hyatt ask for
counsel. Agent Shook did, however, recall that Hyatts father
instructed Hyatt to retain a lawyer. Detective Benjamin stood
farther away, approximately twenty feet, and testified that she
heard very little of the discussion. Captain Hefner remained
in the front yard.
Hyatt and his father then walked to the front porch, where
Hyatts girlfriend, Cindy Spalding, awaited. Agent Shook and
Detective Benjamin followed Hyatt around to the front. Spalding testified that at that time Hyatt asked his father to find
him an attorney. Agent Shook again testified that he did not
hear Hyatt request counsel. Once again, Detective Benjamin
and Captain Hefner stood too far away to hear their conversation.
Hyatt and the officers returned to the sheriffs department.
Hyatt remained in handcuffs during the trip. Once in the interrogation room, Hyatt stated that his "daddy wanted him to call
a lawyer." Detective Benjamin, however, told Hyatt that he
was 41 years old and that he needed to decide for himself

HYATT v. BRANKER

whether he wanted the assistance of counsel. Agent Shook

and Detective Benjamin both testified that Hyatt never
expressly asked for an attorney.
During the interrogation that followed, Hyatt made a series
of incriminating statements. He stated that he was guilty of
robbing someone but denied killing anyone. He nonetheless
asked what would happen to him if he did admit to killing Ms.
McConnell. He then acknowledged that he was present when
Ms. McConnell was murdered but contended that Harmon
raped and killed her. After Agent Shook asked him about the
murder of Ms. Simmons, Hyatt terminated the interview. The
officers then formally arrested Hyatt.
Meanwhile, after Hyatt left his fathers house, Hyatts
brother telephoned Hyatts father, who explained that "[the
police] have just taken your brother out of here in handcuffs
for murder." The brother then called a local attorney, Sean
Devereux, and asked him to represent Hyatt. Both Hyatts
father and his brother told Devereux that Hyatt had requested
the assistance of an attorney. Devereux called the sheriffs
department, stated that he represented Hyatt, and asked the
officers to cease the interrogation. But the officers at the sheriffs department refused, stating that Hyatt had not invoked
his right to counsel.
Devereux drove to the sheriffs office, again explained that
he represented Hyatt, and attempted to speak with him. But
the law enforcement officers and assistant district attorneys
refused Devereuxs request. During the interrogation, the officers did not inform Hyatt that Devereux had arrived at the
sheriffs office and claimed to represent him. Only after Hyatt
terminated the interrogation did the officers permit Devereux
to see him. Devereux then witnessed a conversation in which
Hyatt reportedly asked Detective Benjamin, "Why did you lie
to me about a lawyer? You know that I asked for a lawyer."
Detective Benjamin replied, "No, you didnt, Terry. You

HYATT v. BRANKER

asked to speak to your father, but you never asked for a lawyer."
B.
Prior to trial, Hyatt moved to suppress the incriminating
statements set forth above on the ground that the law enforcement officers denied his request for assistance of counsel. The
state trial court held a suppression hearing, during which
Agent Shook, Detective Benjamin, Sean Devereux, Hyatts
father, Hyatts brother, and Cindy Spalding testified.
After listening to their testimony and considering legal
arguments, the state trial court denied Hyatts motion to suppress. In so doing, the court made a series of factual findings:
[Hyatt] talked to his father on the porch of the residence where his father was, and [Agent] Shook was
close enough to hear whatsome of what he was
saying, that is, [Hyatt] said he was in trouble from
something a long time ago and that he was going to
have to go back to the Sheriffs Department with the
officers. And at that time, there was some discussion
between the Defendant and his father, wherein the
Defendant said to get him a lawyer, a hired lawyer,
meaning a private attorney.
And then he, the Defendant, told the officers that his
father wanted him to get an attorney. That this statement was repeated at that place.
....
[At the sheriffs department, Hyatt] did not ask for
a lawyer but rather repeated the statement that his
father wanted him to have a lawyer.
Thus, with respect to the conversation with his father, the
court found that Hyatt did ask his father "to get him a lawyer"

10

HYATT v. BRANKER

and that Agent Shook overheard parts of the conversation

between father and son. But the courts findings are ambiguous as to whether Shook actually heard Hyatt request an attorney. As to the conversation at the sheriffs office, the court
found that Hyatt did not invoke his right to counsel, "but
rather repeated the statement that his father wanted him to
have a lawyer."
The trial court did not rest its denial of Hyatts suppression
motion on any finding as to whether a law enforcement officer heard Hyatts request for counsel. Rather, the trial court
held that "up until [Hyatt] was formally arrested" at the conclusion of the interrogation, "he was not in custody." Thus,
the trial court found that Hyatts Miranda and Edwards rights
did not attach until the officers "formally arrested" him. The
court further concluded that Hyatt voluntarily waived any
rights he did possess.
On direct appeal, the Supreme Court of North Carolina
affirmed but on alternative grounds. The court assumed that
Hyatt was in custody during the interrogation but found no
error in admitting Hyatts incriminating statements because he
had not invoked his right to counsel. Hyatt, 566 S.E.2d at 6971. The state supreme court found that (1) "neither Agent
Shook nor Detective Benjamin heard [Hyatts] alleged invocation of his right to counsel" while at his fathers house, id.
at 71, (2) Hyatts statement that his "daddy wanted him to call
a lawyer" did not "constitute an unambiguous request for
counsel," id., and (3) because law enforcement officers need
not "inform a suspect of his lawyers efforts to contact him,"
id. at 72, the officers did not violate Hyatts right to counsel
by refusing to permit Devereux to meet with Hyatt during the
interrogation or by failing to inform Hyatt that Devereux had
arrived at the sheriffs office.
C.
During the course of a custodial interrogation, "if a suspect
requests counsel at any time during the interview, he is not

HYATT v. BRANKER

11

subject to further questioning until a lawyer has been made

available or the suspect himself reinitiates conversation."
Davis v. United States, 512 U.S. 452, 458 (1994) (citing
Edwards, 451 U.S. at 484-85). Whether a suspect has invoked
counsel is "an objective inquiry." Id. at 459. "It requires, at a
minimum, some statement that can reasonably be construed to
be an expression of a desire for the assistance of an attorney."
McNeil v. Wisconsin, 501 U.S. 171, 178 (1991). "But if a suspect makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be
invoking the right to counsel, [Supreme Court] precedents do
not require the cessation of questioning." Davis, 512 U.S. at
459. Rather, a suspect "must articulate his desire to have
counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement
to be a request for an attorney." Id.
1.
We first address Hyatts argument that he requested counsel during his conversations with his father. To invoke a right
to counsel, the suspect himself must request an attorney and
a representative of the state must hear that request. See id. at
458-59. Thus, this claim turns on a single question of fact
hotly disputed by the parties: whether a law enforcement officer heard Hyatt make an unequivocal request for counsel. As
noted above, under AEDPA, we must "presume the correctness of state courts factual findings unless applicants rebut
this presumption with clear and convincing evidence,"
Schriro, 550 U.S. at 473-74 (quotation omitted).
Here, Agent Shook and Detective Benjamin testified that
neither ever heard Hyatt request counsel. Hyatts father testified to the contrary. The state supreme court credited the testimony of Agent Shook and Detective Benjamin over that of
Hyatts father. Hyatt, 566 S.E.2d at 71. Although Hyatt challenges this finding, he fails to show that the state courts deci-

12

HYATT v. BRANKER

sion was "unreasonable" based on the evidence available, and

he offers no "clear and convincing evidence" that the state
court erred.1 Accordingly, we must defer to the state courts
finding that law enforcement officers did not hear Hyatt
request counsel while at his fathers house. Given this finding,
the state court did not err in holding that Hyatt did not then
invoke his right to counsel.
2.
Next, Hyatt maintains that his statement during the interrogation at the sheriffs officethat his "daddy wanted him to
call a lawyer"sufficed to invoke counsel and that the
Supreme Court of North Carolina erred in finding to the contrary. We disagree. Federal law requires a suspect to make an
unequivocal request for counsel. Davis, 512 U.S. at 46162.
The state courts holdingthat Hyatts statement at the sheriffs office did not unequivocally express a desire for an
attorneydoes not constitute an unreasonable application of
federal law.
3.
Finally, Hyatt claims that law enforcement officers
deceived him by failing to inform him of Devereuxs presence
at the sheriffs office during the interrogation and that this
deceit constitutes a constitutional violation. The Supreme
Courts decision in Moran v. Burbine, 475 U.S. 412 (1986),
compels us to reject this argument.
1

The state supreme court initially noted in passing that "[t]he states evidence was uncontroverted . . . that neither Agent Shook nor Detective
Benjamin heard [Hyatt] request an attorney while at his fathers residence." Hyatt, 566 S.E.2d at 68. Hyatt points out that his father testified
that Agent Shook stood near enough to hear Hyatts request for counsel.
The state supreme court, however, later specifically addressed the testimony of Hyatts father, but credited Agent Shooks sworn testimony that
he did not hear Hyatt request counsel. Id. at 7071.

HYATT v. BRANKER

13

In Moran, as here, police failed to inform a suspect that his

lawyer had attempted to contact him. Id. at 417-18. The
Supreme Court held that this event, "outside of the presence
of the suspect and entirely unknown to him . . . ha[d] no bearing on the [suspects] capacity to comprehend and knowingly
relinquish a constitutional right." Id. at 422. The Court recognized that this information "would have been useful" to the
suspect and that "it might have affected his decision to confess." Id. But the Court found that law enforcement officers
need not "supply a suspect with a flow of information to help
him calibrate his self-interest in deciding whether to speak or
stand by his rights." Id.
In the case at hand, the state court found that the law
enforcement officers had no constitutional obligation to
inform Hyatt of Devereuxs presence at the sheriffs department. Hyatt notes that Moran contains dicta suggesting that
"egregious . . . police deception might rise to a level of a due
process violation." Id. at 432. But the Supreme Court has not
yet found such "egregious" conduct to exist in any case and
has not otherwise provided standards to determine what constitutes such "egregious" conduct. Hyatt, therefore, can present no authority to demonstrate that the officers conduct
here was "egregious" under clearly established Supreme
Court precedent.2
In sum, Hyatt provides no basis for us to disturb the state
courts holding that Hyatt waived his right to counsel during
a custodial interrogation in "full awareness of both the nature
of the right being abandoned and the consequences of the
decision to abandon it." Moran, 475 U.S. at 421.
2

Moreover, Hyatt fails to cite Supreme Court precedent showing that

the officers use of rusesfirst misleading Hyatt about the subject of their
investigation and then falsely asserting the existence of fingerprint
evidenceviolated his constitutional rights.

14

HYATT v. BRANKER

IV.
Hyatt next maintains that the state court violated his Sixth
Amendment right to trial counsel of his choice by denying his
motion to dismiss his court-appointed attorneys.
A.
On the fifth day of trial, Friday, January 14, Hyatt interrupted jury selection and asked the court to dismiss his
appointed attorneys. He argued that his attorneys had a conflict of interest, evidenced by their failure to obtain certain
medical records. The court allowed a brief recess during
which Hyatt obtained counselagain Sean Devereuxto
argue this motion. Appearing for this limited purpose, Devereux asked the court to adjourn determination of Hyatts oral
motion until the next day of court, Tuesday, January 18, 2000.
The court agreed to do so.
On that Tuesday, Devereux filed a written motion on
Hyatts behalf, asking the court to discharge appointed counsel and substitute retained counsel. Devereux explained that
attorneys Tony Lynch and David Belser were "prepared to
step in" and that Hyatts family could retain them "immediately." Lynch and Belser were not, however, present in the
courtroom, and Hyatt admits that he had not yet actually
retained them. Nonetheless, Hyatt swore in an affidavit and
his attorney represented orally in open court that Hyatt was in
a position to retain them if permitted to do so by the trial
court. Hyatt also claimed that communication with his courtappointed lawyers had "broken down."
In support of Hyatts motion, Devereux argued that "the
Sixth Amendment right to counsel extends to counsel of ones
own choosing." But he also noted that "[c]learly the disposition of this motion is within the courts discretion. There are
countervailing concerns. . . . There are a number of cases that

HYATT v. BRANKER

15

have upheld the courts denial either of change of counsel or

continuance under similar circumstances."
Although the State argued that Hyatt had not shown his
appointed counsel to be ineffective, it did not oppose substitution of counsel. The State did, however, object to any continuance of the trial. The trial court then asked whether Hyatt
would request a continuance, and Devereux stated that "I
think that motion will probably be made by counsel in this
case. As your Honor knows, Ive limited my appearance to
arguing this motion. I dont want to make that decision for
anyone else."
B.
The trial court then denied Hyatts motion to substitute
counsel. First, the court found that "implicit in [Hyatts
motion] is a prospective motion to continue the case." And the
court decided that it would not delay or continue the trial to
allow Hyatt to change counsel. Second, the court determined
that Hyatt had not shown his appointed counsel ineffective
and that the court had cured the cause for Hyatts displeasure
with appointed counsel by issuing a subpoena for the medical
records. The court noted that Hyatt had offered nothing "substantively or inferentially" to show that his conflict with his
appointed counsel was "so great as to result in any lack or
total lack of communication between counsel and client so as
to prevent an adequate defense." Finally, the trial court stated
that Hyatt could, if he wished to do so, hire additional attorneys to assist his court-appointed counsel.
On direct appeal, the Supreme Court of North Carolina first
noted that Hyatt did not "allege ineffective assistance of counsel." Hyatt, 566 S.E.2d at 77. Then, quoting the trial courts
finding that Hyatts motion to substitute counsel contained an
"implicit . . . prospective motion to continue," the state
supreme court rejected Hyatts Sixth Amendment claim. Id. at
77-78. The court reasoned that a trial court may reject "a

16

HYATT v. BRANKER

defendants request to substitute retained counsel where he or

she offered no justifiable basis for the replacement and where
doing so would obstruct the orderly procedure of trial." Id. at
78.
C.
In United States v. Gonzalez-Lopez, the Supreme Court
held that the Sixth Amendment provides a criminal defendant
the right to "the counsel he believes to be best." 548 U.S. 140,
146 (2006).3 The court rejected the contention that, to show
a constitutional violation from a denial of substitution of
counsel, a criminal defendant must demonstrate that the original counsel "was ineffective within the meaning of Strickland
v. Washington." Id. at 144-48. Rather, because "[d]eprivation
of the right is complete when the defendant is erroneously
prevented from being represented by the lawyer he wants,"
"[w]here the right to be assisted by counsel of ones choice is
wrongly denied, . . . it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment
violation." Id. at 148. Indeed, "deprivation of the right to
counsel of choice . . . unquestionably qualifies as structural
error." Id. at 150 (citation omitted).
The Supreme Court clearly explained in Gonzalez-Lopez,
however, that the right to choose counsel is not without limit.
Particularly relevant here, a trial court maintains "wide latitude in balancing the right to counsel of choice against the
3

The Supreme Court issued its opinion in Gonzalez-Lopez four years

after the Supreme Court of North Carolina ruled on Hyatts direct appeal.
Nonetheless, citing Caplin & Drysdale, Chartered v. United States, 491
U.S. 617, 62425 (1989), and similar cases, Hyatt maintains that
Gonzalez-Lopez merely stated a rule dictated by precedent, and thus that
rule may form a basis for AEDPA relief. Because Hyatts challenge fails
even under Gonzalez-Lopez, we need not parse precisely what federal law
was "clearly established" on this point at the time of the Supreme Court
of North Carolinas ruling.

HYATT v. BRANKER

17

needs of fairness, and against the demands of its calendar." Id.

at 152 (citations omitted).
Recognizing that a trial court may deny a motion to substitute counsel to preclude delay of an ongoing trial, Hyatt rests
his argument on the contention that, in his case, the trial court
wrongly concluded that his motion to substitute counsel
would require a continuance. Hyatt directs us to portions of
the trial transcript where his counsel stated that substitute
counsel was immediately available, and he provides affidavits
asserting the same.4 But this evidence is insufficient to overcome the trial courts finding that a motion to continue was
"implicit" in Hyatts motion to change attorneys.
Hyatts own attorney admitted that new counsel would
"probably" file a motion to continue. The trial court certainly
could rely on this assertion. Moreover, in exercising its "wide
latitude," the trial court properly drew on its experience in
determining whether a motion to change counsel in the midst
of a capital case involving two victims, two murder charges,
and two different accomplices would require a delay of the
4

The parties dispute at length whether a federal court on habeas review

may consider these affidavitsone by Devereux and one by Belser. The
State contends that no state court considered them on the merits, and thus
we may not consider them on federal habeas; Hyatt disagrees. We need
not resolve this dispute, however, because the affidavits have no bearing
on the issue before us. In his affidavit, Devereux states that alternative
counsel could have "immediately assume[d] representation of Terry
Hyatt," even without a continuance. Belser similarly asserts that, although
"not completely comfortable with taking over a capital trial that had
already begun," he was willing to represent Hyatt if the court granted
Hyatts motion to discharge appointed counsel and Hyatt secured adequate
funds. Whether new counsel would have immediately "undertaken"
Hyatts representation is beside the point. Rather, the issue before us is
whether the trial court reasonably determinedbased on the nature of the
case before it and the representations of the partiesthat a motion to substitute counsel would likely require a continuance after new counsel had
"undertaken" the representation. The Devereux and Belser affidavits do
not address this issue.

18

HYATT v. BRANKER

trial. Given these facts, the trial court could reasonably

believe that, in order to be effective, any new attorney would
require a continuance after undertaking the defense. In such
a complicated and weighty case, new counsel would undoubtedly need time to study the states allegations and evidence,
the procedural history of the case, andin consultation with
the accusedformulate a defense strategy.
Accordingly, we have no basis to disturb the state courts
finding that Hyatts motion to substitute counsel contained an
"implicit" motion to continue. Because the state court reasonably believed that granting Hyatts motion would necessitate
delay, the court acted within its discretion in rejecting the
request.5 That decision was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.
V.
Finally, Hyatt argues that the trial court erred in denying
his request for a jury instruction on the lesser-included
offense of second-degree murder. On appeal, the Supreme
Court of North Carolina affirmed, finding that "there was no
evidence upon which the jury could find [Hyatt] guilty of
second-degree murder" because Hyatt "did not negate any of
the elements of first-degree murder." Hyatt, 566 S.E.2d at 73.
A.
In challenging this holding, Hyatt relies heavily on Beck v.
Alabama, 447 U.S. 625 (1980). There the Supreme Court held
5

Hyatt makes much of the fact that the trial court denied his motion not
only because of its finding with respect to delay, but also because Hyatt
had not shown that his court-appointed attorneys were ineffective. It is
true that the state court rejected Hyatts claim on multiple grounds. But its
finding with respect to delay provides an appropriate and sufficient basis
for its ruling.

HYATT v. BRANKER

19

that capital defendants have a constitutional right to receive a

jury instruction on a lesser-included offense "when the evidence unquestionably establishes that the defendant is guilty
of a serious, violent offensebut leaves some doubt with
respect to an element that would justify conviction of a capital
offense." Id. at 637. The Court found that the failure to give
the jury a "third option" other than conviction on a capital
charge or outright acquittal "would seem inevitably to
enhance the risk of an unwarranted conviction." Id. The
Supreme Court later cautioned, however, that "due process
requires that a lesser included offense instruction be given
only when the evidence warrants such an instruction." Hopper
v. Evans, 456 U.S. 605, 611 (1982).
A Beck challenge does not question whether the prosecutor
presented evidence sufficient to sustain a conviction of a capital offense. See Hogan v. Gibson, 197 F.3d 1297, 1305 (10th
Cir. 1999) ("A Beck claim is not the functional equivalent of
a challenge to the sufficiency of the evidence for conviction
. . . ."). Rather, Beck requires a lesser-included offense
instruction when the evidence at trial merely casts "some
doubt" on a necessary element of the capital charge. Beck,
447 U.S. at 637; see also Larry, 552 F.3d at 364.
North Carolina defines first-degree murder as the "unlawful
killing of another human being with malice and with premeditation and deliberation." State v. Bonney, 405 S.E.2d 145, 154
(N.C. 1991); see also N.C. Gen. Stat. 14-17 (2007). The
state defines second-degree murder as the "unlawful killing of
a human being with malice but without premeditation and
deliberation." State v. Thibodeaux, 532 S.E.2d 797, 806 (N.C.
2000) (quotation omitted; emphasis added). Thus, to have a
constitutional entitlement to a jury instruction for seconddegree murder under Beck, Hyatt must show that evidence
presented to the jury creates some doubt with respect to either
premeditation or deliberation. See Larry, 552 F.3d at 366-67.
In North Carolina, "[p]remeditation means that the act was
thought over beforehand for some length of time, however

20

HYATT v. BRANKER

short." State v. Taylor, 669 S.E.2d 239, 256 (N.C. 2008) (quotation omitted). And "[d]eliberation means an intent to kill,
carried out in a cool state of blood, . . . and not under the
influence of a violent passion or a sufficient legal provocation." Id. (quotation omitted).
B.
Hyatt maintains that, for several reasons, the state trial
court erred in failing to instruct the jury on second-degree
murder.
First, Hyatt argues that the two principal witnesses against
himHelms and Harmonwere unbelievable, and so the
jury could have doubted the reliability of their testimony that
Hyatt committed the murders. Hyatt presents an affidavit
from Harmons ex-wife in which she states that, after the trial,
Harmon told her that "he was so drunk and drugged up that
he may have raped [the victim] and killed her himself but he
just didnt remember." This argument misses the mark. The
evidence on which Hyatt relies may create some doubt as to
the identity of the murderer, but it does not speak to whether
the murderer of Ms. McConnell or Ms. Simmons acted with
premeditation or deliberation. That is, the evidence may have
diminished the strength of the States first-degree murder case
against Hyatt, but it did not suggest that Hyatt was guilty of
second-degree murder in lieu of the capital offense. Thus, this
provides no basis for a Beck claim.
Second, Hyatt maintains that the absence of certain kinds
of evidence in the States case establishes his entitlement to
a Beck claim. He asserts that the State presented no evidence
that he had previously known the victims, that he planned the
crimes or otherwise prepared to kill the victims, or that he
attempted to conceal the crimes. To be sure, these all constitute ways in which the State could have proven premeditation
and deliberation. See State v. Fisher, 350 S.E.2d 334, 33738
(N.C. 1986). But, if we accepted Hyatts argument, a capital

HYATT v. BRANKER

21

defendant would be entitled to a lesser-included jury instruction whenever the state fails to introduce evidence as to every
possible means of proving premeditation or deliberation. In
Hopper, however, the Supreme Court made clear that a capital defendant is entitled to a Beck instruction only when evidence warrants such an instruction. 456 U.S. at 611. Hyatts
argument here fails to present any evidence casting some
doubt as to premeditation and deliberation.
Finally, Hyatt directs us to Harmons trial testimony. Harmon testified that prior to killing Ms. McConnell, Hyatt told
her, "Were not going to hurt you. Were just going to f
you, and then Im going to let you go." Hyatt claims that this
evidence suffices under Beck to warrant a second-degree murder jury instruction with respect to the murder of Ms. McConnell. But this lone statement, in and of itself, casts no doubt
on premeditation or deliberation. Hyatt carried a knife while
making this statement. He also apparently raped Ms. McConnell after making the statement and then murdered her sometime after the rape, providing sufficient time to premeditate
and deliberate. Under these circumstances, we find that the
state court did not unreasonably apply federal law in finding
that the statement did not raise "some doubt" as to whether
Hyatt premeditated or deliberated.
VI.
For these reasons, the judgment of the district court is
AFFIRMED.