{ "id": 11201285, "name": "STATE OF NORTH CAROLINA v. SHAMAR RASHEED HINES and RODNEY EUGENE LEAK", "name_abbreviation": "State v. Hines", "decision_date": "1998-12-01", "docket_number": "No. COA97-1399", "first_page": "457", "last_page": "464", "citations": [ { "type": "official", "cite": "131 N.C. App. 457" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "423 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "772" } ], "opinion_index": 0 }, { "cite": "333 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548569 ], "year": 1992, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0128-01" ] }, { "cite": "203 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "829", "parenthetical": "noting that overwhelming evidence of a defendant's guilt may render a constitutional error harmless beyond a reasonable doubt" } ], "opinion_index": 0 }, { "cite": "285 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562672 ], "year": 1974, "pin_cites": [ { "page": "172", "parenthetical": "noting that overwhelming evidence of a defendant's guilt may render a constitutional error harmless beyond a reasonable doubt" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0167-01" ] }, { "cite": "272 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "854-55" } ], "opinion_index": 0 }, { "cite": "301 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570135 ], "year": 1981, "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0695-01" ] }, { "cite": "137 L. Ed. 2d 708", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "171 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "458" } ], "opinion_index": 0 }, { "cite": "276 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560417 ], "year": 1970, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0142-01" ] }, { "cite": "476 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "343", "parenthetical": "quoting State v. Moore, 276 N.C. 142, 149, 171 S.E.2d 453, 458 (1970)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867670 ], "year": 1996, "pin_cites": [ { "page": "472", "parenthetical": "quoting State v. Moore, 276 N.C. 142, 149, 171 S.E.2d 453, 458 (1970)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0445-01" ] }, { "cite": "219 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "537" }, { "page": "537" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554838 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "533" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0531-01" ] }, { "cite": "385 U.S. 363", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11337414 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "364" }, { "page": "422-23" } ], "opinion_index": 0, "case_paths": [ "/us/385/0363-01" ] }, { "cite": "380 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "394-95" }, { "page": "395" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 240", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526974 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "247" }, { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0240-01" ] } ], "analysis": { "cardinality": 813, "char_count": 18815, "ocr_confidence": 0.775, "pagerank": { "raw": 7.578117548149566e-08, "percentile": 0.449011506076223 }, "sha256": "0d89eeee8d323b76b38005b71aaaa97fa9c94e024560197debd1533bafe942d3", "simhash": "1:db707628b6cadfbf", "word_count": 3058 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and SMITH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SHAMAR RASHEED HINES and RODNEY EUGENE LEAK" ], "opinions": [ { "text": "GREENE, Judge.\nShamar Rasheed Hines (Hines) and Rodney Eugene Leak (Leak) (collectively, Defendants) appeal from entry of judgments on a jury verdict finding them each guilty of assault with a deadly weapon inflicting serious injury and of first-degree murder.\nAt trial, Antoinette Atwater (Atwater) testified that she, her two-year-old daughter (Shaquana), Antonio Smith (Smith), and a few others were sitting on the back porch of her apartment building on the evening of 22 October 1994. Atwater and the others had been smoking a marijuana cigarette laced with cocaine \u201cand getting high\u201d when she noticed a \u201cheavy-set dude . . . and another guy\u201d walking toward them. Atwater heard gunshots and testified that \u201cit did look like both men were firing weapons.\u201d After the shooting ended, Atwater realized that Shaquana had been wounded. Shaquana was still breathing when the police and medical help arrived, but died within ten to fifteen minutes of her arrival at the emergency room. Shortly after the incident, Atwater picked Tony Johnson (Johnson) out of a photographic lineup and identified him as one of the shooters. A few weeks prior to trial, Atwater identified Leak as the second shooter.\nTora Bostic (Bostic) testified that she was sitting on her porch with two friends when Johnson walked over and asked her if Smith was in the group sitting on a porch farther down the complex. After Bostic replied that it was, Johnson walked back around the corner of her apartment building in the direction in which he had come. Bostic then walked around the building in the same direction to get to the front of her apartment. She saw Johnson, Leak, and Hines standing beside the building as she walked around it. Johnson appeared to be holding a revolver. Bostic testified that the three men did not appear to be conversing with each other. Shortly after she entered her apartment, she heard several shots, and she remained inside until the shoot-out ended.\nSmith testified that he sold drugs for a living. Smith stated that Johnson had approached him earlier on the afternoon of 22 October 1994 seeking drugs. Johnson \u201cowed me some money, and he had came up, you know, wanting some more stuff. And I wouldn\u2019t give it to him because he ain\u2019t paid me my money from the last time, and, you know, we got in a little argument.\u201d Smith testified that about an hour or two later, while he was sitting with a group of people, two men began firing in his direction. Smith received three gunshot wounds during the shoot-out. On the way to the hospital, Smith told emergency medical personnel in the ambulance that he did not know who had shot him. Smith subsequently identified Johnson as one of the shooters, but could not identify the second shooter.\nJohnson testified for the State that he sold cocaine, heroin, and marijuana for Leak (a.k.a. \u201cSmoke\u201d), that he and Hines (a.k.a. \u201cRock\u201d) had engaged in the use of cocaine, crack, and heroin, and that he had seen both Leak and Hines with guns in the past. Johnson testified that he was stopped by Smith and two other men on the afternoon of 22 October 1994. Smith \u201cput a gun to my head and demanded money and drugs.\u201d Johnson stated that he gave Smith \u201cclose to $500 and about seven bags of drugs,\u201d and that he went to his apartment after the altercation ended. Johnson contacted Hines and Leak, and the three men drove to the vicinity of Johnson\u2019s recent encounter with Smith. They stopped on the way and Hines went inside an apartment building and returned with a gun. Leak and Johnson each already had guns with them. When Johnson, Hines, and Leak arrived at the area near Johnson\u2019s apartment, Smith was sitting in a group on a nearby porch. Johnson testified that he, Hines, and Leak pulled hoods over their heads and went towards Smith. Smith fired at Johnson, Hines, and Leak, each of whom returned fire several times before fleeing the scene.\nFollowing Johnson\u2019s testimony, over forty exhibits which had been admitted into evidence as part of the State\u2019s case were published to the jury. Included within these exhibits were portions of the prosecutor\u2019s case file which had not been admitted into evidence. The evidence reveals, and the trial court found, that the inclusion of these materials with the admitted exhibits was inadvertent. Among the papers inadvertently published to the jury were eight pages of the prosecutor\u2019s handwritten notes from his interview with Johnson and two pages of a typewritten transcription of statements Johnson alleged Defendants had made to others. The prosecutor\u2019s handwritten notes of the Johnson interview were not labeled or otherwise identified as such, and the typewritten transcription of comments allegedly made by Defendants did not identify Johnson as its source.\nThe prosecutor\u2019s handwritten notes from his interview with Johnson contained the following pertinent notations following Hines\u2019 name: \u201c \u2018Rock\u2019 . . . drugs \u2014 12 years IV; speed; 15 years II\u201d; \u201ccrazy \u2014 beat him over $.\u201d The prosecutor\u2019s notes also contained information about Leak, or \u201cSmoke,\u201d as follows: \u201cSmoke didn\u2019t want to give money out, would give drugs\u201d; and \u201cSmoke \u2014 didn\u2019t do drugs \u2014 only a little.\u201d On the same pages were the following additional notations: \u201ccoke party ... 1/8 kilo \u2014crack & powder\u201d; \u201cRock came back with .357\u201d; as well as several quotations listed after the initials \u201cRL\u201d (i. e., Leak\u2019s initials) and \u201cRH\u201d (i. e., Hines\u2019 initials) in the form of a transcript. Attributed to \u201cRL\u201d were comments such as: \u201cLet me have the pistol\u201d; \u201cDude put girl in front of him\u201d; and \u201cYou going to take care of this or I am going to f\u2014 you up.\u201d Attributed to \u201cRH\u201d were comments such as: \u201cWhat did he do?\u201d and \u201cpage Smoke.\u201d The prosecutor\u2019s notes contained a diagram drawn by hand labeled \u201cShoot Out\u201d which placed the initials RH, RL, TJ (i.e., Johnson\u2019s initials), and the name Smith at their alleged respective locations between what appear to be representations of buildings. The prosecutor\u2019s notes also contained .the following circled information: \u201cOther times RL shot\u201d; \u201che can get people to do things for him\u201d; and \u201cmaster plan \u2014 knows we are all down.\u201d\nThe papers handed to the jury also contained two typewritten sheets, one labeled \u201cOral Statements Made to Non-Law Enforcement Witness by Rodney Leak,\u201d and one labeled \u201cOral Statements Made to Non-Law Enforcement Witness by Shamar Hines.\u201d Typewritten statements attributed to Hines included: \u201cI got a gun\u201d; \u201cWhat we going to do about this?\u201d; \u201cI\u2019m down for it\u201d; and \u201cWe all down.\u201d Typewritten quotations attributed to Leak included: \u201cWe have pistols\u201d; \u201cYou can show him to me, you don\u2019t have to shoot anybody\u201d; \u201cWe gone take care of this dude\u201d; and \u201cHe ain\u2019t going to get away with this s \u2014 .\u201d\nApproximately twenty to thirty minutes after the evidence had been published to the jury, the prosecutor noticed that the jury was reviewing materials which had not been admitted into evidence, immediately had a deputy retrieve the documents, and promptly brought the situation to the trial court\u2019s attention. Defendants each moved for a mistrial.\nThe trial court found that \u201cnone of these handwritten notes have anything to do with Mr. Leak.\u201d Because the trial court found that the notes did refer to Hines, however, the jurors were individually shown the prosecutor\u2019s handwritten notes and polled as to whether they had seen the notes, and, if they had, whether they could put the contents of those notes out of their minds. Several jurors testified that they had not seen the notes. Juror Number One stated that he had tried to read the notes, but could not decipher the prosecutor\u2019s handwriting. He stated that he \u201ccouldn\u2019t understand it,\u201d and that he would be able to put it out of his mind. Juror Number Two stated that he had reviewed the prosecutor\u2019s handwritten notes. When asked if he retained any information from that document, he stated: \u201cNo, it was pretty difficult to read, and with all due respect, it was difficult to read that. But I did read it, and I did not come away with anything.\u201d He further stated that he could put it out of his mind. Juror Number Three stated that he \u201cdid run through it.\u201d When asked whether he retained any information from the prosecutor\u2019s notes, he stated: \u201cNot a lot.\u201d He further stated that he thought he could put any information he had retained out of his mind. Juror Number Four \u201cremember[ed] seeing that.\u201d The trial court then asked if she had retained any information from the prosecutor\u2019s notes.\nJuror #4: There was so much of all the other documents, I really\u2014\nCourt: Yeah, I want to know about this document specifically. Did you retain any information about that document?\nJuror #4: Not specifically, no.\nJuror Number Four further stated that although she did not specifically retain information from the prosecutor\u2019s notes, she could put the notes out of her mind.\nThe trial court did not poll the jurors as to the typewritten statements allegedly made by Defendants, instead finding that the substance of those statements were testified to by Johnson and thus were already before the jury. The trial court did'not make clear to the jurors that Johnson was the source of the prosecutor\u2019s handwritten notes and the typewritten statements. The trial court denied Defendants\u2019 motions for mistrial.\nHines did not testify or present any evidence. Leak did not testify, but did present evidence tending to show that Johnson had told a fellow inmate that Leak did not participate in the shoot-out, and that Hines did participate. Another inmate testified that Johnson had told him that Leak \u201cwas on the other side of the building\u201d when the shootout occurred, and that Johnson had said that \u201cif he going down, he\u2019s taking all them [(i.e., Leak and Hines)] down with him.\u201d In an attempt to impeach Atwater\u2019s identification of him as one of the shooters, Leak also presented evidence that Atwater recognized him based on events unrelated to the shoot-out.\nThe jury subsequently found both Hines and Leak guilty of the assault with a deadly weapon inflicting serious injury on Smith, and with the first-degree murder of two-year-old Shaquana during the commission of a felony.\nThe issue is whether the publication to the jury of extrinsic materials was substantially and irreparably prejudicial to Hines and Leak.\nThe Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution guarantee a criminal defendant\u2019s right to confront the witnesses and evidence against him. U.S. Const. amend. VI; N.C. Const. art. I, \u00a7 23; State v. Lyles, 94 N.C. App. 240, 247, 380 S.E.2d 390, 394-95 (1989). \u201cA fundamental aspect of [this right to confrontation] is that a jury\u2019s verdict must be based on evidence produced at trial, not on extrinsic evidence which has escaped the rules of evidence, supervision of the court, and other procedural safeguards of a fair trial.\u201d Id. (citing Parker v. Gladden, 385 U.S. 363, 364, 17 L. Ed. 2d 420, 422-23 (1966)).\nIn this case, it is undisputed that the jury was exposed to extrinsic evidence. The prosecutor\u2019s notes and a typewritten list of statements allegedly made by Defendants were inadvertently published to the jury without being admitted by the trial court. These documents contained generally inadmissible information, notably hearsay testimony implicating both Hines and Leak in the shoot-out, see N.C.G.S. \u00a7 8C-1, Rules 802 through 805 (1992), and what appeared to be Hines\u2019 criminal record of drug-related convictions, see N.C.G.S. \u00a7 8C-1, Rule 404(b) (Supp. 1997); State v. Foster, 27 N.C. App. 531, 533, 219 S.E.2d 535, 537 (1975). Defendants\u2019 confrontational rights were therefore violated by the publication of these documents to the jury.\nAppropriate instructions from the trial court, however, may cure even constitutional errors. \u201c[0]ur system of justice is based upon the assumption that trial jurors are women and men \u201c \u2018of character and of sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so.\u201d \u2019 \u201d State v. Hartman, 344 N.C. 445, 472, 476 S.E.2d 328, 343 (1996) (quoting State v. Moore, 276 N.C. 142, 149, 171 S.E.2d 453, 458 (1970)), cert. denied, \u2014 U.S. \u2014, 137 L. Ed. 2d 708 (1997). Accordingly, our courts have generally held that where inadmissible evidence is published to the jury, a trial court may cure this error by instructing the jury not to consider that specific evidence. State v. Smith, 301 N.C. 695, 697, 272 S.E.2d 852, 854-55 (1981). In some cases, however, \u201cthe cautionary admonitions of the trial judge are ineffective to erase from the minds of a jury the effects of prejudicial [errors].\u201d Foster, 27 N.C. App. at 533, 219 S.E.2d at 537.\nIn this case, the instructions of the trial court were insufficient to cure the prejudicial effect of the evidence inadvertently published to the jury. The trial court\u2019s questioning of the jurors as to the prosecutor\u2019s handwritten notes revealed that some of the jurors had read the notes while reviewing over forty documents, but that they could not specifically recall what information they had retained from the notes. Although the jurors stated that they could exclude inadmissible material from their minds, some jurors could not specifically recall what information they were being asked to exclude, and therefore faced an impossible task. Furthermore, the trial court did not instruct the jury to disregard the typewritten list of statements allegedly made by Leak and Hines which was also inadvertently published to the jury. Finally, it could have appeared to a reasonable juror that at least one unknown witness corroborated Johnson\u2019s testimony, because neither the trial court nor the documents themselves indicated that Johnson was the source of the information contained therein. The trial court\u2019s admonition to the jurors to exclude any information they may have retained from their review of the prosecutor\u2019s handwritten notes was insufficient to cure these errors.\nConstitutional errors that have not been cured by the trial court are presumed prejudicial under North Carolina law; however, the State may rebut this presumption by showing that the error was harmless beyond a reasonable doubt. Lyles, 94 N.C. App. at 248, 380 S.E.2d at 395; see N.C.G.S. \u00a7 15A-1443(b) (1997). To do so, the State must show that there is no reasonable possibility that the error complained of contributed to the conviction. State v. Heard and Jones, 285 N.C. 167, 172, 203 S.E.2d 826, 829 (1974) (noting that overwhelming evidence of a defendant\u2019s guilt may render a constitutional error harmless beyond a reasonable doubt).\nIn this case, the State has failed to show that the publication to the jury of the prosecutor\u2019s notes and the typewritten list of statements allegedly made by Hines and Leak was harmless beyond a reasonable doubt. The jury viewed what appeared to be Hines\u2019 arrest record and statements tending to show that Hines had a history of violence \u2014 information which was not otherwise before the jury. The jury also viewed statements and a diagram implicating both Hines and Leak in the shoot-out, and was never made aware that Johnson was the source of this information. Furthermore, there was not overwhelming evidence of the guilt of either Hines or Leak. Although other testimony placed Hines in the vicinity immediately preceding the shoot-out, Johnson\u2019s testimony was the only evidence that implicated Hines as an actual participant in the shoot-out (Johnson testified that he, Hines, and Leak returned Smith\u2019s fire). Smith, who was shot during the exchange, testified that there were two shooters, and he could only identify Johnson. Atwater, Shaquana\u2019s mother, testified that there were two shooters and identified Johnson within days of the shooting. She was unable to identify Leak, however, until approximately two years later. Although neither Hines nor Leak testified, Leak presented evidence that tended to impeach both Johnson\u2019s testimony and Atwater\u2019s identification. Accordingly, the State has not shown that the inadvertent publication of extrinsic evidence was harmless beyond a reasonable doubt, and has failed to convince this Court that there is no reasonable possibility that the publication to the jury of these documents contributed to the convictions of Hines and Leak. Under these circumstances, Defendants were substantially and irreparably prejudiced by the publication to the jury of extrinsic evidence; it was therefore an abuse of the trial court\u2019s discretion to deny Defendants\u2019 motions for mistrial. See N.C.G.S. \u00a7 15A-1061 (1997) (noting that on a defendant\u2019s motion, the trial court must declare a mistrial \u201cif there occurs during the trial an error or legal defect in the proceedings . . . resulting in substantial and irreparable prejudice to the defendant\u2019s case\u201d); State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 772 (1992). This error requires that we grant Defendants a new trial; we therefore do not address Defendants\u2019 remaining contentions as they may not recur.\nNew Trial.\nJudges TIMMONS-GOODSON and SMITH concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General John F. Maddrey, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant Shamar Rasheed Hines.", "Jay H. Ferguson, for defendant-appellant Rodney Eugene Leak." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SHAMAR RASHEED HINES and RODNEY EUGENE LEAK\nNo. COA97-1399\n(Filed 1 December 1998)\nConstitutional Law\u2014 right of confrontation \u2014 unadmitted evidence \u2014 inadvertent publication to jury\nDefendants\u2019 rights of confrontation were violated in a trial for murder and aggravated assault by the inadvertent publication to the jury of portions of the prosecutor\u2019s case file which had not been admitted into evidence, including handwritten notes and a typewritten list of statements allegedly made by defendants which implicated both defendants in the crimes and which appeared to state one defendant\u2019s record of drug-related convictions. Furthermore, the prejudicial effect of the evidence inadvertently published to the jury was not cured by the trial court\u2019s instruction that the jury should disregard such evidence where jurors could not recall what information they retained from these documents and what information they were being asked to exclude; an accomplice was not identified as the source of the information in the documents and it may have appeared to jurors that an unknown witness corroborated the accomplice\u2019s trial testimony; and evidence of defendants\u2019 guilt was not overwhelming. U.S. Const, amend. VI; N.C. Const, art. I, \u00a7 23.\nAppeal by defendants from judgments dated 29 October 1996 by Judge Orlando F. Hudson in Durham County Superior Court. Heard in the Court of Appeals 15 September 1998.\nAttorney General Michael F. Easley, by Assistant Attorney General John F. Maddrey, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant Shamar Rasheed Hines.\nJay H. Ferguson, for defendant-appellant Rodney Eugene Leak." }, "file_name": "0457-01", "first_page_order": 491, "last_page_order": 498 }