State v. Hines

Decision Date01 December 1998
Docket NumberNo. COA97-1399.,COA97-1399.
Citation508 S.E.2d 310,131 NC App. 457
PartiesSTATE of North Carolina v. Shamar Rasheed HINES and Rodney Eugene Leak.
CourtNorth Carolina Court of Appeals

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, Durham, for defendant-appellant Shamar Rasheed Hines.

Jay H. Ferguson, Durham, for defendant-appellant Rodney Eugene Leak.

GREENE, Judge.

Shamar 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.

At 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 "and getting high" when she noticed a "heavy-set dude ... and another guy" walking toward them. Atwater heard gunshots and testified that "it did look like both men were firing weapons." 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 line-up and identified him as one of the shooters. A few weeks prior to trial, Atwater identified Leak as the second shooter.

Tora 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.

Smith 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 "owed me some money, and he had came up, you know, wanting some more stuff. And I wouldn't give it to him because he ain't paid me my money from the last time, and, you know, we got in a little argument." 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.

Johnson testified for the State that he sold cocaine, heroin, and marijuana for Leak (a.k.a."Smoke"), that he and Hines (a.k.a."Rock") 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 "put a gun to my head and demanded money and drugs." Johnson stated that he gave Smith "close to $500 and about seven bags of drugs," 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's 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's 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.

Following Johnson's testimony, over forty exhibits which had been admitted into evidence as part of the State's case were published to the jury. Included within these exhibits were portions of the prosecutor's 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's 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's 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.

The prosecutor's handwritten notes from his interview with Johnson contained the following pertinent notations following Hines' name: "`Rock' ... drugs—12 years IV; speed; 15 years II"; "crazy—beat him over $." The prosecutor's notes also contained information about Leak, or "Smoke," as follows: "Smoke didn't want to give money out, would give drugs"; and "Smoke—didn't do drugs—only a little." On the same pages were the following additional notations: "coke party ... 1/8 kilo—crack & powder"; "Rock came back with .357"; as well as several quotations listed after the initials "RL" (i.e., Leak's initials) and "RH" (i.e., Hines' initials) in the form of a transcript. Attributed to "RL" were comments such as: "Let me have the pistol"; "Dude put girl in front of him"; and "You going to take care of this or I am going to f___ you up." Attributed to "RH" were comments such as: "What did he do?" and "page Smoke." The prosecutor's notes contained a diagram drawn by hand labeled "Shoot Out" which placed the initials RH, RL, TJ (i.e., Johnson's initials), and the name Smith at their alleged respective locations between what appear to be representations of buildings. The prosecutor's notes also contained the following circled information: "Other times RL shot"; "he can get people to do things for him"; and "master plan—knows we are all down." The papers handed to the jury also contained two typewritten sheets, one labeled "Oral Statements Made to Non-Law Enforcement Witness by Rodney Leak," and one labeled "Oral Statements Made to Non-Law Enforcement Witness by Shamar Hines." Typewritten statements attributed to Hines included: "I got a gun"; "What we going to do about this?"; "I'm down for it"; and "We all down." Typewritten quotations attributed to Leak included: "We have pistols"; "You can show him to me, you don't have to shoot anybody"; "We gone take care of this dude"; and "He ain't going to get away with this s___."

Approximately 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's attention. Defendants each moved for a mistrial.

The trial court found that "none of these handwritten notes have anything to do with Mr. Leak." Because the trial court found that the notes did refer to Hines, however, the jurors were individually shown the prosecutor's 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's handwriting. He stated that he "couldn't understand it," and that he would be able to put it out of his mind. Juror Number Two stated that he had reviewed the prosecutor's handwritten notes. When asked if he retained any information from that document, he stated: "No, 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." He further stated that he could put it out of his mind. Juror Number Three stated that he "did run through it." When asked whether he retained any information from the prosecutor's notes, he stated: "Not a lot." He further stated that he thought he could put any information he had retained out of his mind. Juror Number Four "remember[ed] seeing that." The trial court then asked if she had retained any information from the prosecutor's notes.

Juror # 4: There was so much of all the other documents, I really—
Court: Yeah, I want to know about this document specifically. Did you retain any information about that document?
Juror # 4: Not specifically, no.

Juror Number Four further stated that although she did not specifically retain information from the prosecutor's notes, she could put the notes out of her mind.

The 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...

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  • Bauberger v. Haynes
    • United States
    • U.S. District Court — Middle District of North Carolina
    • October 27, 2009
    ...at trial. Under these circumstances, the juror misconduct did not violate defendant's right to confrontation. Cf. State v. Hines, 131 N.C.App. 457, 508 S.E.2d 310 (1998) (defendant's right to confrontation violated where prosecutor's notes and typewritten list of statements defendant made, ......
  • State v. Bauberger
    • United States
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    • March 7, 2006
    ...at trial. Under these circumstances, the juror misconduct did not violate defendant's right to confrontation. Cf. State v. Hines, 131 N.C.App. 457, 508 S.E.2d 310 (1998) (defendant's right to confrontation violated where prosecutor's notes and typewritten list of statements defendant made, ......
  • Hurst v. Branker
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    • U.S. District Court — Middle District of North Carolina
    • September 7, 2012
    ...162 N.C. App. 181 (table), 590 S.E.2d 333 (table), 2004 WL 26566, at *1-2 (Jan. 6, 2004) (unpublished); State v. Hines, 131 N.C. App. 457, 462-64, 508 S.E.2d 310, 313-15 (1998). Under these circumstances, the Court should not presume that the Supreme Court of North Carolina failed to adjudi......
  • State v. Coffey
    • United States
    • North Carolina Court of Appeals
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    ...are presumed to have done so." State v. Hauser , ––– N.C. App. ––––, ––––, 844 S.E.2d 319, 322 (2020) (quoting State v. Hines , 131 N.C. App. 457, 462, 508 S.E.2d 310, 314 (1998) ). When jurors are instructed on the general purpose of evidence which is followed by more specific instructions......
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