{ "id": 8526974, "name": "STATE OF NORTH CAROLINA v. FREDERICK LYLES", "name_abbreviation": "State v. Lyles", "decision_date": "1989-06-20", "docket_number": "No. 8811SC690", "first_page": "240", "last_page": "250", "citations": [ { "type": "official", "cite": "94 N.C. App. 240" } ], "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": "116 Wis. 2d 510", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8674904 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "529" }, { "page": "116-19" }, { "page": "530" }, { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/116/0510-01" ] }, { "cite": "403 F. 2d 77", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2129330 ], "year": 1968, "pin_cites": [ { "page": "84", "parenthetical": "\"[w]here an extraneous influence is shown, the court must apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/403/0077-01" ] }, { "cite": "271 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "277", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "301 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566430 ], "year": 1980, "pin_cites": [ { "page": "387", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0382-01" ] }, { "cite": "651 F. 2d 600", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1245227 ], "year": 1981, "pin_cites": [ { "page": "603", "parenthetical": "once it is established that extraneous material reached jury, a presumption of prejudice arises which may be overcome only by a showing that the error was harmless beyond a reasonable doubt" } ], "opinion_index": 0, "case_paths": [ "/f2d/651/0600-01" ] }, { "cite": "77 L.Ed. 2d 1318", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "461 U.S. 958", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11334464, 11334306, 11334660, 11334598, 11334206, 11334953, 11334799, 11334735, 11334866, 11334517, 11334007, 11334075, 11334142 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/461/0958-06", "/us/461/0958-05", "/us/461/0958-09", "/us/461/0958-08", "/us/461/0958-04", "/us/461/0958-13", "/us/461/0958-11", "/us/461/0958-10", "/us/461/0958-12", "/us/461/0958-07", "/us/461/0958-01", "/us/461/0958-02", "/us/461/0958-03" ] }, { "cite": "701 F. 2d 1052", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 12148718 ], "year": 1983, "pin_cites": [ { "page": "1063-64" } ], "opinion_index": 0, "case_paths": [ "/f2d/701/1052-01" ] }, { "cite": "748 F. 2d 1519", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 638647 ], "year": 1984, "pin_cites": [ { "page": "1533-34" } ], "opinion_index": 0, "case_paths": [ "/f2d/748/1519-01" ] }, { "cite": "369 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "322 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518818 ], "year": 1988, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0591-01" ] }, { "cite": "244 S.E. 2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "396", "parenthetical": "bailiffs remarks to jurors were of nature to require a new trial as matter of law; not analyzed on confrontation grounds" }, { "page": "396" } ], "opinion_index": 0 }, { "cite": "295 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562067 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "235", "parenthetical": "bailiffs remarks to jurors were of nature to require a new trial as matter of law; not analyzed on confrontation grounds" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0227-01" ] }, { "cite": "732 F. 2d 7", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1947663 ], "year": 1984, "pin_cites": [ { "parenthetical": "jurors unmasked portions of photographs, revealing defendant's prior crimes" } ], "opinion_index": 0, "case_paths": [ "/f2d/732/0007-01" ] }, { "cite": "567 F. Supp. 467", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3577800 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "469" }, { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/f-supp/567/0467-01" ] }, { "cite": "428 F. 2d 178", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2239903 ], "year": 1970, "pin_cites": [ { "page": "181-82", "parenthetical": "jury discovered cash in pocket of shirt inside attache case introduced in evidence" } ], "opinion_index": 0, "case_paths": [ "/f2d/428/0178-01" ] }, { "cite": "58 L.Ed. 2d 263", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "pin_cites": [ { "parenthetical": "jurors read newspaper story giving defendant's address which discredited his explanation for being near scene of crime" } ], "opinion_index": 0 }, { "cite": "439 U.S. 915", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11404226, 11404547, 11404580, 11404388, 11404038, 11404134, 11404176, 11403985, 11404276, 11404087, 11404439, 11404347 ], "year": 1978, "pin_cites": [ { "parenthetical": "jurors read newspaper story giving defendant's address which discredited his explanation for being near scene of crime" } ], "opinion_index": 0, "case_paths": [ "/us/439/0915-06", "/us/439/0915-11", "/us/439/0915-12", "/us/439/0915-09", "/us/439/0915-02", "/us/439/0915-04", "/us/439/0915-05", "/us/439/0915-01", "/us/439/0915-07", "/us/439/0915-03", "/us/439/0915-10", "/us/439/0915-08" ] }, { "cite": "575 F. 2d 407", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 930299 ], "year": 1978, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/f2d/575/0407-01" ] }, { "cite": "662 F. 2d 450", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1185374 ], "year": 1981, "pin_cites": [ { "page": "458", "parenthetical": "jury exposed to extraneous materials suggesting defendant's involvement with \"Mexican Mafia\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/662/0450-01" ] }, { "cite": "379 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11731209 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "472-73" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/us/379/0466-01" ] }, { "cite": "385 U.S. 363", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11337414 ], "weight": 4, "year": 1966, "pin_cites": [ { "page": "364" }, { "page": "422-23" }, { "page": "364" }, { "page": "420, 422-23", "parenthetical": "bailiff told jurors that defendant was \"wicked\"" } ], "opinion_index": 0, "case_paths": [ "/us/385/0363-01" ] }, { "cite": "203 S.E. 2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "55", "parenthetical": "statute controls when language in caption conflicts with clear language in statute" } ], "opinion_index": 0 }, { "cite": "285 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561713 ], "year": 1974, "pin_cites": [ { "page": "71", "parenthetical": "statute controls when language in caption conflicts with clear language in statute" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0064-01" ] }, { "cite": "146 U.S. 140", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3564613 ], "weight": 2, "year": 1892, "pin_cites": [ { "page": "148-49", "parenthetical": "established long-standing rule that \"[a] jurfor] may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated on his mind\"" }, { "page": "921", "parenthetical": "established long-standing rule that \"[a] jurfor] may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated on his mind\"" } ], "opinion_index": 0, "case_paths": [ "/us/146/0140-01" ] }, { "cite": "340 S.E. 2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "416", "parenthetical": "Rule 606(b) permits juror testimony regarding \"the fact that extraneous prejudicial information was acquired by [a] juror,\" but prohibits testimony as to \"the effect. . . this information had upon her vote\"" }, { "page": "416", "parenthetical": "recognizing that verdict may be impeached in criminal case when confrontation right is implicated" } ], "opinion_index": 0 }, { "cite": "315 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4713937 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "535-36", "parenthetical": "Rule 606(b) permits juror testimony regarding \"the fact that extraneous prejudicial information was acquired by [a] juror,\" but prohibits testimony as to \"the effect. . . this information had upon her vote\"" }, { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0523-01" ] }, { "cite": "370 S.E. 2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "363" } ], "opinion_index": 0 }, { "cite": "322 N.C. 826", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518874 ], "year": 1988, "pin_cites": [ { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0826-01" ] }, { "cite": "374 S.E. 2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563557, 2560313, 2565768, 2560333, 2560473 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0623-04", "/nc/323/0623-05", "/nc/323/0623-03", "/nc/323/0623-02", "/nc/323/0623-01" ] }, { "cite": "371 S.E. 2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "721-22" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 315", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525474 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "322-23" }, { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0315-01" ] }, { "cite": "64 L.Ed. 2d 796", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "446 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6277664, 6275708, 6276260, 6274984, 6278967, 6278350, 6275343, 6278644, 6279286, 6277367, 6276539, 6275996, 6278014 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0941-08", "/us/446/0941-03", "/us/446/0941-05", "/us/446/0941-01", "/us/446/0941-12", "/us/446/0941-10", "/us/446/0941-02", "/us/446/0941-11", "/us/446/0941-13", "/us/446/0941-07", "/us/446/0941-06", "/us/446/0941-04", "/us/446/0941-09" ] }, { "cite": "257 S.E. 2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "298 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568503 ], "year": 1979, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0086-01" ] } ], "analysis": { "cardinality": 953, "char_count": 23776, "ocr_confidence": 0.729, "pagerank": { "raw": 1.6708379070016164e-07, "percentile": 0.6959386435270937 }, "sha256": "4de1163435d9e64f2082424aea5ecd76f173a4ff8f836e3f13a661910a7418d0", "simhash": "1:0b767822f6bdfb75", "word_count": 3790 }, "last_updated": "2023-07-14T20:07:12.068465+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges PARKER and Orr concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FREDERICK LYLES" ], "opinions": [ { "text": "BECTON, Judge.\nFollowing his conviction of robbery with a firearm, the defendant, Frederick Lyles, filed a Motion for Appropriate Relief, seeking a new trial on the ground that his constitutional right of confrontation had been violated by the jury\u2019s exposure to certain extraneous evidence. Evidence presented at the hearing on defendant\u2019s motion showed that the jury members tampered with a photographic exhibit during deliberations. As a result, they were exposed to information not introduced in evidence which contradicted defendant\u2019s alibi witnesses. Until that information was revealed, the jury had been split on the issue of defendant\u2019s guilt. The hearing judge denied defendant\u2019s Motion for Appropriate Relief, and this court granted certiorari. For the reasons that follow, we reverse, and order that defendant receive a new trial.\nI\nThe relevant facts are as follows: Two men robbed a jewelry store in Kenly, North Carolina, in November 1982. Three years later, in November 1985, eyewitnesses identified defendant from a photographic line-up as one of the robbers. Based on this identification, defendant was indicted and tried for robbery with a dangerous weapon.\nAt trial, the State\u2019s case rested solely on the eyewitnesses\u2019 identification of defendant. The photographic line-up used by the witnesses in 1985 was introduced in evidence as State\u2019s Exhibit 1. In its original condition, the exhibit consisted of several \u201cmug shots,\u201d of defendant and five other men, taped to a manila folder, with paper taped over the lower portion of the photographs to conceal writing that appeared there. To challenge the State\u2019s identification testimony, defendant presented evidence that he had been in another state when the robbery was committed and that he differed in several respects from the eyewitnesses\u2019 description of the perpetrator.\nThe jury deliberated for four hours before it asked to see Exhibit 1, the photographic line-up. Neither party objected, and the exhibit was delivered to'the jury room. While viewing the exhibit, one of the jurors peeled back the paper over the bottom of defendant\u2019s photograph, revealing the words, \u201cPolice Department, Wilson, North Carolina \u201412291, 12-07-81.\u201d The jurors discussed the writing on the photograph as evidence that defendant had been in the area in December 1981, a fact which, if true, contradicted the testimony of defendant\u2019s alibi witnesses that he lived in another state from 1980 to 1984 and had not returned to North Carolina during that time. Less than one hour after this information was revealed, the jury returned a unanimous guilty verdict.\nFollowing his conviction, and while an appeal was pending before this court, defendant filed his Motion for Appropriate Relief. We ordered the case remanded to the superior court for an eviden-tiary hearing on the motion.\nAt the hearing, eleven of the twelve jurors testified. All admitted seeing and discussing the information revealed on the photograph. The hearing judge sustained objections to questions concerning the effect of the information on the jury\u2019s verdict, but allowed that testimony to be elicited for purposes of the record. The hearing judge concluded as a matter of law that defendant failed to show he was prejudiced by the jury\u2019s actions and that, therefore, he was not entitled to the relief sought.\nDefendant appealed, and this court granted certiorari. Defendant\u2019s primary contentions on appeal are: (1) that he was entitled to a new trial because his constitutional right of confrontation was violated by the jury\u2019s consideration of information not in evidence; (2) that the hearing judge erred by excluding evidence of the effect the information had upon the jury\u2019s verdict; and (3) that the hearing judge improperly placed the burden of showing prejudice upon the defendant. Given our disposition of this appeal, we will not address defendant\u2019s remaining assignments of error.\nII\nWe must first decide whether this was a case in which jurors could testify to impeach their verdict. We conclude that it was.\nGenerally speaking, once a verdict is rendered, jurors may not impeach it. State v. Cherry, 298 N.C. 86, 100, 257 S.E. 2d 551, 560 (1979), cert. denied, 446 U.S. 941, 64 L.Ed. 2d 796 (1980). Substantial policy considerations supporting this anti-impeachment rule include freedom of deliberation, stability and finality of verdicts, and protection of jurors from harassment and embarrassment. See N.C. Gen. Stat. Sec. 8C-1, comment to R. Evid. 606 (1988); Chandler v. U-Line Corp., 91 N.C. App. 315, 322-23, 371 S.E. 2d 717, 721-22, disc. rev. denied, 323 N.C. 623, 374 S.E. 2d 583 (1988); see generally, Weinstein, 3 Weinstein\u2019s Evidence para. 606[03] (1987). However, harsh injustice has sometimes resulted from the view that jury verdicts are beyond challenge. Thus, as an \u201caccommodation between policies designed to safeguard the institution of trial by jury and policies designed to insure a just result in [an] individual case,\u201d certain exceptions to the rule have been carved out. Weinstein\u2019s Evidence para. 606[03].\nSection 15A-1240 of the General Statutes and Rule 606(b) of the Rules of Evidence provide limited exceptions to the anti-impeachment rule. Section 15A-1240 allows impeachment of a verdict only in a criminal case, and only when (1) the verdict was reached by lot; (2) a juror was subjected to bribery, intimidation, or attempted bribery or intimidation; or (3) \u201cmatters not in evidence . . . came to the attention of one or more jurors under circumstances which would violate the defendant\u2019s constitutional right to confront the witnesses against him. . . .\" N.C. Gen. Stat. Sec. 15A-1240 (1988) (emphasis added). Rule 606(b), which applies in both criminal and civil cases, provides that a juror is competent to testify when the validity of a verdict is challenged, but only \u201con the question [1] whether extraneous prejudicial information was improperly brought to the jury\u2019s attention or [2] whether any outside influence was improperly brought to bear upon any juror.\u201d N.C. Gen. Stat. Sec. 8C-1, R. Evid. 606(b) (1988) (emphasis added). See generally, Brandis, 1 Brandis on North Carolina Evidence Sec. 65 (3d ed. 1988).\nWe hold that the writing on defendant\u2019s photograph was both \u201cextraneous information\u201d within the meaning of Rule 606(b) and was a \u201cmatter not in evidence\u201d which implicated defendant\u2019s confrontation right within the meaning of Section 15A-1240(c)(l) because it was \u201cinformation dealing with the defendant [and] the case . . . being tried . . . which . . . reachefd] a juror without being introduced in evidence.\u201d State v. Rosier, 322 N.C. 826, 832, 370 S.E. 2d 359, 363 (1988). Our Supreme Court made it clear in Rosier that once the jury receives extraneous information pertinent to the defendant or the case, the jurors are competent to impeach their verdict. Id. The Rosier court reached a different result than the one we reach today because the information which came to the jury\u2019s attention, although not introduced in evidence, was not \u201cextraneous\u201d since it did not concern that defendant or the evidence in that case. Id.\nIll\nDefendant contends that the hearing judge erred by excluding juror testimony regarding how the extraneous information affected the jury\u2019s decision. We disagree.\nDefendant correctly points out that the official comment to Rule 606 suggests that a juror is competent to testify regarding the effect of extraneous prejudicial information upon the jurors\u2019 mental processes. The comment states in relevant part:\nThe exclusion [in Rule 606(h)] is intended to encompass testimony about mental processes and any testimony about any matter or statement occurring during the deliberations, except that testimony of either of these two types can he admitted if it relates to extraneous prejudicial information or improper outside influence. . . . G.S. 15A-1240 . . . should be amended to conform to Rule 606.\nN.C. Gen. Stat. Sec. 8C-1, comment to R. Evid. 606 (1988). See also Chandler, 91 N.C. App. at 322, 371 S.E. 2d at 721 (citing comment to R. Evid. 606 for quoted principle). It appears, however, that the comment inadvertently misstates the rule since both Rule 606(b) and Section 15A-1240 unambiguously prohibit inquiry into the effect of anything occurring during deliberations upon jurors\u2019 minds.\nRule 606(b) plainly states that \u201ca juror may not testify as to .. . the effect of anything upon his or any other juror\u2019s mind or emotions as influencing him to assent to or dissent from the verdict... or concerning his mental processes in connection therewith. . . .\u201d N.C. Gen. Stat. Sec. 8C-1, R. Evid. 606(b) (emphasis added). Similarly, Section 15A-1240(a) provides that \u201cno evidence may he received to show the effect of any statement, conduct, event, or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined.\u201d N.C. Gen. Stat. Sec. 15A-1240(a) (emphasis added). Thus, it is clear that jurors may testify regarding the objective events listed as exceptions in the statutes, but are prohibited from testifying to the subjective effect those matters had on their verdict. See Smith v. Price, 315 N.C. 523, 535-36, 340 S.E. 2d 408, 416 (1986) (Rule 606(b) permits juror testimony regarding \u201cthe fact that extraneous prejudicial information was acquired by [a] juror,\u201d but prohibits testimony as to \u201cthe effect. . . this information had upon her vote\u201d) (emphasis added); accord Mattox v. United States, 146 U.S. 140, 148-49, 36 L.Ed. 917, 921 (1892) (established long-standing rule that \u201c[a] jurfor] may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated on his mind\u201d); see also Weinstein\u2019s Evidence para. 606[04] and cases cited therein.\nFinally, although Rule 606(b) is broader in some respects than Section 15A-1240, we do not agree with any suggestion that the two statutes conflict. In our view, the exceptions to the anti-impeachment rule listed in Section 15A-1240 are designed to protect the same interests as, and are entirely consistent with, the exceptions in Rule 606(b). Accord Brandis Sec. 65, n.95 (\u201c[I]t seems that with the possible exception of \u2018by lot,\u2019 everything admissible under 15A-1240 is also admissible under the Rule\u201d).\nAlthough official commentary is useful to determine legislative intent when an ambiguity exists, it cannot control when, as here, the language of the statute itself is clear and unambiguous. Cf. In re Forsyth County, 285 N.C. 64, 71, 203 S.E. 2d 51, 55 (1974) (statute controls when language in caption conflicts with clear language in statute). Thus, to the extent that the comment contradicts the plain language of Rule 606(b) and Section 15A-1240 and is inconsistent with the Supreme Court\u2019s statement of the current rule in Smith, we decline to follow the comment.\nAccordingly, we hold that the hearing judge did not err by excluding testimony regarding jurors\u2019 subjective reactions to the written information appearing on defendant\u2019s photograph.\nIV\nDefendant next contends that the jury\u2019s exposure to the information on the photograph violated his constitutional right of confrontation. We agree.\nA criminal defendant\u2019s right to confront the witnesses and evidence against him is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 23 of the North Carolina Constitution. A fundamental aspect of that right 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. See, e.g., Parker v. Gladden, 385 U.S. 363, 364, 17 L.Ed. 2d 420, 422-23 (1966); Turner v. Louisiana, 379 U.S. 466, 472-73, 13 L.Ed. 2d 424, 429 (1965) (rights conferred by the Sixth Amendment \u201cnecessarily impl[y] at the very least that the \u2018evidence developed\u2019 against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant\u2019s right of confrontation, of cross-examination, and of counsel\u201d).\nIn this case, it is undisputed that information about the defendant, which had not been admitted in evidence, came to the attention of the jury and that this evidence directly contradicted defendant\u2019s alibi witnesses. Because this exposure occurred during the jury\u2019s deliberations, defendant had no opportunity to challenge the evidence by cross-examination or to minimize its impact in his closing argument or through a curative instruction by the trial judge. Moreover, the evidence implied that defendant had prior criminal involvement, and the jury was allowed to draw this inference notwithstanding that this is a subject intricately regulated by the rules of evidence.\nUnder these circumstances, the jury\u2019s exposure to the extraneous information clearly abridged defendant\u2019s constitutional right of confrontation. Accord Parker, 385 U.S. at 364, 17 L.Ed. 2d at 420, 422-23 (bailiff told jurors that defendant was \u201cwicked\u201d); United States v. Bruscino, 662 F. 2d 450, 458 (7th Cir. 1981) (jury exposed to extraneous materials suggesting defendant\u2019s involvement with \u201cMexican Mafia\u201d); Bulger v. McClay, 575 F. 2d 407, 411 (2d Cir. 1978), cert. denied, 439 U.S. 915, 58 L.Ed. 2d 263 (1978) (jurors read newspaper story giving defendant\u2019s address which discredited his explanation for being near scene of crime); Farese v. United States, 428 F. 2d 178, 181-82 (5th Cir. 1970) (jury discovered cash in pocket of shirt inside attache case introduced in evidence); Lacy v. Gabriel, 567 F. Supp. 467, 469 (D. Mass. 1983), aff'd, 732 F. 2d 7 (1st Cir. 1984) (jurors unmasked portions of photographs, revealing defendant\u2019s prior crimes). See also Smith, 315 N.C. at 536, 340 S.E. 2d at 416 (recognizing that verdict may be impeached in criminal case when confrontation right is implicated); cf. State v. Johnson, 295 N.C. 227, 235, 244 S.E. 2d 391, 396 (1978) (bailiffs remarks to jurors were of nature to require a new trial as matter of law; not analyzed on confrontation grounds). Our remaining question is whether this violation sufficiently prejudiced defendant to warrant granting him a new trial.\nV\nWe agree with defendant\u2019s final contentions that the hearing judge erred by placing the burden of showing prejudice on the defendant, and that, under the circumstances, the judge erred by denying him a new trial.\nGenerally, a new trial motion is addressed to the sound discretion of the trial judge, and unless his ruling is clearly erroneous or an abuse of discretion, it will not be disturbed on appeal. See, e.g., Johnson, 295 N.C. at 234, 244 S.E. 2d at 396. When, however, the motion is based on a constitutional right, the ruling becomes a question of law, fully reviewable on appeal. See State v. Gardner, 322 N.C. 591, 593, 369 S.E. 2d 593, 596 (1988). Here, defendant\u2019s motion was grounded on \u2014 and the evidence presented at the hearing unquestionably established \u2014 a violation of his Sixth Amendment right of confrontation.\nWe hold that the hearing judge erred by placing the burden of showing prejudice upon defendant. Under North Carolina law, the violation of any right guaranteed by the United States Constitution is presumed to be prejudicial, and the burden is then on the State to show that it was harmless beyond a reasonable doubt. N.C. Gen. Stat. Sec. 15A-1443(b) (1988). Cases based upon federal Rule 606(b) are in accord with this standard. See, e.g., United States v. Perkins, 748 F. 2d 1519, 1533-34 (11th Cir. 1984); United States v. Hilliard, 701 F. 2d 1052, 1063-64 (2d Cir. 1983), cert. denied, 461 U.S. 958, 77 L.Ed. 2d 1318 (1983); United States v. Bassler, 651 F. 2d 600, 603 (8th Cir. 1981) (once it is established that extraneous material reached jury, a presumption of prejudice arises which may be overcome only by a showing that the error was harmless beyond a reasonable doubt).\nWe turn now to the question whether the evidence presented at the hearing established that the error was \u201charmless beyond a reasonable doubt.\u201d\nAn error of constitutional magnitude will be held to be harmless beyond a reasonable doubt only when \u201cthe court can declare a belief . . . that there is no reasonable possibility that the violation might have contributed to the conviction.\u201d State v. Lane, 301 N.C. 382, 387, 271 S.E. 2d 273, 277 (1980) (emphasis added). In the context of jury exposure to extraneous information, because inquiry into jurors\u2019 mental processes is prohibited, the test for determining harmlessness generally has been whether there was \u201cno reasonable possibility\u201d that \u201can average juror\u201d could have been affected by it. See, e.g., Miller v. United States, 403 F. 2d 77, 84 (2d Cir. 1968) (\u201c[w]here an extraneous influence is shown, the court must apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror\u201d); Lacy, 567 F. Supp. at 469 (because jurors\u2019 thought processes \u201care not properly matters for judicial review,\u201d the prejudicial effect of extraneous information \u201cmust be evaluated in the context of the \u2018average\u2019 juror, or a \u2018reasonable\u2019 juror, rather than attempting to measure the actual effect on the jurors who were involved\u201d); State v. Poh, 116 Wis. 2d 510, 529, 343 N.W. 2d 108, 116-19 (1984).\nIn assessing the impact of the extraneous evidence on the mind of the hypothetical \u201caverage juror,\u201d the court should consider: (1) the nature of the extrinsic information and the circumstances under which it was brought to the jury\u2019s attention; (2) the nature of the State\u2019s case; (3) the defense presented at trial; and (4) the connection between the extraneous information and a material issue in the case. See Poh, 116 Wis. 2d at 530, 343 N.W. 2d at 119. Applying these factors to the case before us, we conclude that there was more than a reasonable possibility that an average juror could have been affected by the information revealed on the photograph, and, therefore, that the State failed to show that the error was harmless beyond a reasonable doubt.\nHere, the implication of the words printed at the bottom of the official police department \u201cmug shot\u201d was that defendant had been in Wilson in 1981, and that he had been charged with a crime while there. Not only would this unauthenticated evidence have been inadmissible at trial as hearsay and incompetent character evidence, but, more importantly, the evidence went to the heart of defendant\u2019s alibi defense. The State\u2019s case rested on the identification of defendant as one of the perpetrators; defendant\u2019s challenge to that evidence was that he lived out-of-state for several years, including the year the robbery was committed. In all likelihood, defendant\u2019s alibi and the credibility of the witnesses who testified in his behalf were undermined by the jury\u2019s exposure to this evidence. Moreover, the jury, which had been split as to defendant\u2019s guilt after four hours of deliberation, reached the unanimous guilty verdict less than one hour after the information came to their attention. In circumstances such as this, the possibility that the jury\u2019s verdict was tainted by exposure to the extraneous evidence was obvious. Accordingly, we hold that defendant is entitled to a new trial.\nVI\nIn summary, we hold that: (1) the jurors were competent to impeach their verdict within the terms of Rule 606(b) and Section 15A-1240(c)(l); (2) the hearing judge did not err in excluding evidence of the effect the extraneous information had on the verdict; (3) the jury\u2019s exposure to the information violated defendant\u2019s constitutional right of confrontation; (4) the hearing judge erred in putting the burden on defendant to establish prejudice; and (5) the jury\u2019s exposure to the information was not harmless beyond a reasonable doubt. The order denying defendant\u2019s Motion for Appropriate Relief is\nReversed; new trial.\nJudges PARKER and Orr concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Randy Meares and Assistant Attorney General D. David Steinbock, for the State.", "Office of the Appellate Defender, by Malcolm Ray Hunter, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FREDERICK LYLES\nNo. 8811SC690\n(Filed 20 June 1989)\n1. Criminal Law \u00a7 126.3\u2014 jurors\u2019 impeachment of verdict \u2014 exposure to extraneous evidence\nJurors could testify to impeach their verdict in an armed robbery case pursuant to N.C.G.S. \u00a7 15A-1240 and Rule of Evidence 606(b) where one juror removed paper from the bottom of defendant\u2019s photograph in a photographic lineup to reveal that it was taken at the Wilson Police Department on 7 December 1981, and the jurors discussed the writing on the photograph as evidence that defendant had been in the area in December 1981 contrary to testimony by defendant\u2019s alibi witnesses. The writing on the photograph was \u201cextraneous information\u201d within the meaning of Rule 606(b) and was a \u201cmatter not in evidence\u201d which implicated defendant\u2019s confrontation right within the meaning of N.C.G.S. \u00a7 15A-1240(c)(1).\n2. Criminal Law \u00a7 126.3\u2014 jurors\u2019 impeachment of verdict \u2014 exposure to extraneous evidence \u2014 effect on verdict \u2014 evidence properly excluded\nThe judge hearing a motion for appropriate relief properly excluded juror testimony regarding how extraneous information considered by the jury during its deliberations affected the jury\u2019s decision. While jurors may testify regarding the objective events listed in N.C.G.S. \u00a7 15A-1240(a) and N.C.G.S. \u00a7 8C-1, Rule 606(b) as exceptions to the anti-impeachment rule, those statutes prohibit jurors from testifying to the subjective effect those matters had on their verdict.\n3. Criminal Law \u00a7 101.2\u2014 jury\u2019s exposure to extraneous evidence \u2014 denial of right to confrontation\nDefendant\u2019s constitutional right to confrontation was violated in an armed robbery case by the jury\u2019s exposure to extraneous evidence during deliberations when a juror removed paper covering the bottom of defendant\u2019s photograph in a photographic lineup to reveal that the photograph was taken at the Wilson Police Department on 7 December 1981, and the writing on the photograph contradicted testimony by defendant\u2019s alibi witnesses that defendant lived in another state from 1980 to 1984 and did not return to North Carolina during that time. Sixth Amendment to the United States Constitution; Art. I, \u00a7 23 of the North Carolina Constitution.\n4. Constitutional Law \u00a7 65; Criminal Law \u00a7 101.2\u2014 jury\u2019s exposure to extraneous evidence \u2014 denial of constitutional right to confrontation \u2014 burden of proving harmless error\nWhere the evidence established that defendant\u2019s Sixth Amendment right of confrontation was violated by the jury\u2019s improper consideration of extraneous evidence, the trial judge erred by placing the burden of showing prejudice upon defendant. Rather, the violation of a right guaranteed by the United States Constitution was presumed to be prejudicial, and the burden was on the State to show that it was harmless beyond a reasonable doubt. N.C.G.S. \u00a7 15A-1443(b).\n5. Constitutional Law \u00a7 65; Criminal Law \u00a7 101.2\u2014 jury\u2019s exposure to extraneous evidence \u2014 prejudicial error\nThe jury\u2019s exposure to extraneous evidence during deliberations when a juror removed paper covering writing on a mug shot of defendant revealing that the photograph had been taken at the Wilson Police Department at a time defendant\u2019s alibi witnesses testified he was living in another state constituted prejudicial error since there was more than a reasonable possibility that an average juror could have been affected by the information revealed in the photograph.\nAppeal by defendant from J. B. Allen, Jr., Judge. Order entered 18 May 1987 in Superior Court, JOHNSTON County. Heard in the Court of Appeals 14 February 1989.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Randy Meares and Assistant Attorney General D. David Steinbock, for the State.\nOffice of the Appellate Defender, by Malcolm Ray Hunter, Jr., for defendant-appellant." }, "file_name": "0240-01", "first_page_order": 270, "last_page_order": 280 }