Sherman v. Smith ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TIMOTHY SCOTT SHERMAN,
Petitioner-Appellant,
v.
WILLIAM L. SMITH, Warden,
No. 94-6831
Maryland House of Correction-
Annex; JOHN JOSEPH CURRAN,
Attorney General for the State of
Maryland,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-91-2006)
Argued: April 2, 1996
Decided: July 17, 1996
Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges, sitting en banc.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
majority opinion, in which Judges Russell, Widener, Hall, Wilkins,
Niemeyer, Hamilton, Luttig, and Williams joined. Judge Murnaghan
wrote a dissenting opinion, in which Judges Ervin and Michael
joined. Judge Motz wrote a concurring and dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Andrew Lewis Frey, MAYER, BROWN & PLATT,
Washington, D.C., for Appellant. Ann Norman Bosse, Assistant
Attorney General, Criminal Appeals Division, OFFICE OF THE
ATTORNEY GENERAL, Baltimore, Maryland, for Appellees. ON
BRIEF: Roy T. Englert, Jr., James G. Duncan, MAYER, BROWN
& PLATT, Washington, D.C.; Stuart J. Robinson, Bel Air, Maryland,
for Appellant. J. Joseph Curran, Jr., Attorney General of Maryland,
Criminal Appeals Division, OFFICE OF THE ATTORNEY GEN-
ERAL, Baltimore, Maryland, for Appellees.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
We granted en banc review in this case to consider whether the dis-
trict court properly denied Timothy Sherman's petition for a writ of
habeas corpus. In 1988, a state jury convicted Sherman of killing his
mother and adopted father, Ann and Stevenson Sherman, and sen-
tenced him to two consecutive terms of life. Sherman asks this court
to overturn his conviction due to one juror's unauthorized visit to the
crime scene during the course of his trial. Because we find that the
juror's excursion was not a structural error requiring a per se reversal
of Sherman's conviction, and that the effect of the juror's visit was
harmless, we affirm.
I.
Early in the morning of October 12, 1987, Ann and Stevenson
Sherman were shot to death as they slept. Each died from a fatal shot-
gun blast. When police arrived, Timothy Sherman, Ann and Steven-
son's eighteen-year-old son, was in the house with his maternal
grandfather, William Gibson. Timothy told the officers that he had
heard gun shots and then had run to his grandfather's nearby home.
The two of them returned to the Sherman house, where Gibson sum-
moned the police.
2
Timothy was in his parents' house when the murders occurred. The
house, which was equipped with an extensive alarm system, revealed
no signs of forced entry or theft. The burglar alarm system was turned
off. Police officers found two expended Remington 12-gauge shotgun
shells in the hallway outside Ann and Stevenson's bedroom. In Timo-
thy's bedroom, officers uncovered a box of Remington 12-gauge
shotgun shells stuffed under the mattress of his bed. The box held five
shells, and two were missing; the three remaining shells matched the
expended shells found outside the Shermans' bedroom.
Police deputies also found a 12-gauge shotgun, which belonged to
the Shermans, lodged in a pine tree near Gibson's house. The gun was
pushed inside the branches of the tree, with the barrel pointing down-
ward toward the trunk of the tree and the butt pointing upward. Tests
confirmed that the two shells that police found in the hallway outside
the Shermans' bedroom had been fired from this shotgun. Three latent
fingerprints matching those of Timothy Sherman were also found on
the weapon, including a fingerprint above the trigger assembly.
Timothy Sherman was charged and tried for the murder of his par-
ents. At trial, the state relied heavily on the evidence gathered at the
crime scene. The defense emphasized that Sherman had no apparent
motive for the murders, no gunshot residue on his hands or clothing,
and no pine needles or sap on his clothing even though he allegedly
hid the weapon in the tree. After a lengthy trial, the jury convicted
Sherman of two counts of first-degree murder.
Sherman thereafter moved for a new trial based, in part, on allega-
tions of juror misconduct during the course of the trial. Specifically,
he alleged that one of the jurors, Blane Miller, had made an unautho-
rized visit to the crime scene on the second or third day of the trial.
Sherman argued that he was entitled to a new trial because the juror's
visit infringed his Sixth Amendment rights.
The trial judge held an evidentiary hearing on the motion for a new
trial. At the hearing, juror Miller testified that one evening two or
three days into the trial he and his wife drove to the crime scene,
which was located in a development called Gibson Manor. As he
explained, he "went to the Sherman house and then[ ] drove back the
streets from the Sherman house, back to the entrance of Gibson
3
Manor in looking for a tree that was so involved in the case." Miller
confirmed that he saw the tree and the house. He visited the site, he
said, "so I could see the tree that was so much in question."
At the close of the hearing, the trial judge rejected the motion for
a new trial. Sherman appealed this ruling, and alleged nine other
assignments of error. The Maryland Court of Special Appeals, how-
ever, declined to grant relief. The Maryland Court of Appeals and the
United States Supreme Court declined to review Sherman's convic-
tion. Sherman v. Maryland, 498 U.S. 950 (1990).
Sherman then filed a federal habeas petition alleging that the
juror's site visit warranted reversal of his conviction. In August, 1992,
the district court denied his petition. A panel of this court vacated the
district court's judgment and remanded to the district court for a de
novo review of the record to determine "the nature of the error" and
whether it "influenced the jury's deliberations." Sherman v. Smith, 8
F.3d 820 (Table), No. 92-6947, slip op. at 7 (4th Cir. 1993) (per
curiam).
On remand, following a de novo review of the record, the district
court again denied the petition, and Sherman filed the instant appeal.
A panel of this court reversed and granted Sherman's petition. 70
F.3d 1263 (Table), No. 94-6831 (4th Cir. 1995) (per curiam). The
court then voted to hear the case en banc.
II.
Sherman contends that juror Miller's unsupervised visit to the
crime scene violated his Sixth Amendment rights to confront and
cross-examine witnesses against him and to be judged by an impartial
jury. We shall assume for purposes of argument that juror Miller's
site visit amounted to a constitutional violation of Sherman's rights.
This error, Sherman claims, constituted a structural error requiring
automatic reversal of his conviction, rather than a trial error which
can be "quantitatively assessed in the context of other evidence pres-
ented" in order to determine whether its occurrence was harmless.
Arizona v. Fulminante, 499 U.S. 279, 308 (1991). We disagree with
Sherman's claim. An unsupervised juror site visit does not constitute
structural error, but rather is subject to harmless error analysis.
4
A.
Criminal defendants in this country are entitled to a fair, but not a
perfect trial. "[G]iven the myriad safeguards provided to assure a fair
trial, and taking into account the reality of the human fallibility of the
participants, there can be no such thing as an error-free, perfect trial,"
and the Constitution does not demand one. United States v. Hasting,
461 U.S. 499, 508 (1983). This focus on fairness, rather than on per-
fection, protects society from individuals who have been duly and
fairly convicted of crimes, thereby promoting "public respect for the
criminal process." Delaware v. Van Arsdall , 475 U.S. 673, 681
(1986).
With this in mind, the Supreme Court has recognized that most
errors do not automatically render a trial unfair and thus, can be harm-
less. Fulminante, 499 U.S. at 306-07. Fulminante enumerated the
wide variety of constitutional errors subject to harmless error analysis.
They include improper admission of an involuntary confession, id. at
306-12; overbroad jury instructions at the sentencing stage of a capital
case, Clemons v. Mississippi, 494 U.S. 738 (1990); improper admis-
sion of evidence at the sentencing stage of a capital case, Satterwhite
v. Texas, 486 U.S. 249 (1988); jury instructions containing erroneous
conclusive or rebuttable presumptions, Carella v. California, 491
U.S. 263, 266-67 (1989) (per curiam); Rose v. Clark, 478 U.S. 570
(1986); erroneous exclusion of a defendant's testimony regarding the
circumstances of a confession, Crane v. Kentucky , 476 U.S. 683, 691
(1986); improper restriction on a defendant's right to cross-examine
witnesses for bias, Van Arsdall, 475 U.S. at 673; denial of a defen-
dant's right to be present at trial, Rushen v. Spain, 464 U.S. 114, 117-
19 and n.2 (1983) (per curiam); improper comment on a defendant's
silence at trial, Hasting, 461 U.S. at 499; improper prohibition on the
provision of a lesser included offense instruction in a capital case,
Hopper v. Evans, 456 U.S. 605 (1982); failure to instruct the jury on
the presumption of innocence, Kentucky v. Whorton, 441 U.S. 786
(1979) (per curiam); improper admission of identification evidence,
Moore v. Illinois, 434 U.S. 220, 232 (1977); erroneous admission of
an out-of-court statement of a nontestifying codefendant, Brown v.
United States, 411 U.S. 223, 231-32 (1973); improper admission of
a confession made to an undercover officer, Milton v. Wainwright,
407 U.S. 371 (1972); admission of evidence obtained in violation of
5
the Fourth Amendment, Chambers v. Maroney, 399 U.S. 42, 52-3
(1970); and improper denial of counsel at a preliminary hearing,
Coleman v. Alabama, 399 U.S. 1, 10-11 (1970). Indeed, "if the defen-
dant had counsel and was tried by an impartial adjudicator, there is
a strong presumption that any other errors that may have occurred are
subject to harmless-error analysis." Rose, 478 U.S. at 579; see also
United States v. Blevins, 960 F.2d 1252, 1261-62 (4th Cir. 1992).
The Supreme Court has also recognized that certain structural
errors are so severe as to render a trial inherently unfair and thus,
should not be subject to harmless error analysis. Fulminante, 499 U.S.
at 309-10; see, e.g., Sullivan v. Louisiana, 508 U.S. 275 (1993) (the
denial of the right to a jury verdict of guilt beyond reasonable doubt);
McKaskle v. Wiggins, 465 U.S. 168 (1984) (the denial of the right of
self-representation at trial); Waller v. Georgia , 467 U.S. 39 (1984)
(the denial of the right to public trial); Gideon v. Wainwright, 372
U.S. 335 (1963) (the total deprivation of the right to counsel); Tumey
v. Ohio, 273 U.S. 510 (1927) (the presence of a biased judge). Unlike
other errors, "[t]hese are structural defects in the constitution of the
trial mechanism" and "``[w]ithout these basic protections, a criminal
trial cannot reliably serve its function as a vehicle for determination
of guilt or innocence, and no criminal punishment may be regarded
as fundamentally fair.'" Fulminante, 499 U.S. at 309-10 (quoting
Rose, 478 U.S. at 577-78). Structural errors affect the "entire conduct
of the trial from beginning to end," and therefore cannot be harmless.
Fulminante, 499 U.S. at 309.
Correctly applied, harmless error and structural error analyses pro-
duce identical results: unfair convictions are reversed while fair con-
victions are affirmed. Expanding the list of structural errors, however,
is not mere legal abstraction. It can also be a dangerous endeavor.
There is always the risk that a sometimes-harmless error will be clas-
sified as structural, thus resulting in the reversal of criminal convic-
tions obtained pursuant to a fair trial. Given this risk, judges should
be wary of prescribing new errors requiring automatic reversal.
Indeed, before a court adds a new error to the list of structural errors
(and thereby requires the reversal of every criminal conviction in
which the error occurs), the court must be certain that the error's pres-
ence would render every such trial unfair. See id. at 310.
6
Here, Sherman maintains that a juror site visit is so unfair that it
must constitute a new addition to the short list of structural errors. But
a juror site visit "does not compare with the kinds of errors that auto-
matically require reversal of an otherwise valid conviction." Rose,
478 U.S. at 579. Unlike the complete denial of counsel and other
structural errors, which affect the "entire conduct of the trial from
beginning to end," juror site visits can be discrete moments in the
course of an otherwise fair trial. Fulminante , 499 U.S. at 309. As it
cannot be said with any certainty that a juror site visit renders every
trial in which it occurs unfair, it would be a reckless undertaking to
remove such errors from the rubric of harmless error analysis.
After all, our criminal justice system represents a balance between
the rights of accused persons and the need for public safety. This bal-
ance is best expressed in the notion of a fair, but not a perfect, crimi-
nal trial. When an error is misclassified as one requiring automatic
reversal, the balance is upset, and proceedings that in reality are per-
fectly fair are discarded in the name of an elusive systemic perfection.
B.
Sherman maintains, however, that unauthorized juror site visits
constitute structural error because they "defy" harmless error analysis.
That analysis requires a reviewing court to quantitatively assess the
effect of the error "in the context of other evidence presented" at trial.
Fulminante, 499 U.S. at 308. Sherman observes that the rules of evi-
dence prevent examination of the jury's mental impressions formed
during the deliberative process. See Tanner v. United States, 483 U.S.
107, 117 (1987). Without such evidence, he argues, a reviewing court
could never determine the effect of a crime scene visit on the jury's
verdict.
We disagree. Alleged infringement of Sixth Amendment rights is
no exception to the general rule that "most constitutional errors can
be harmless." Fulminante, 499 U.S. at 306. The Supreme Court has
"long since rejected the argument that, as a general matter, the Sixth
Amendment prohibits the application of harmless-error analysis in
determining whether constitutional error had a prejudicial impact on
the outcome of a case." Sullivan, 508 U.S. at 282-83 (Rehnquist, C.J.,
concurring).
7
Sherman's argument is further undercut by the Supreme Court's
application of harmless error analysis to claims of juror misconduct
and bias, claims that are essentially indistinguishable from those Sher-
man alleges. In Smith v. Phillips, 455 U.S. 209 (1982), the Court held
that a juror's mid-trial application for employment in the District
Attorney's office responsible for prosecuting the defendant did not
require automatic reversal of the conviction. As the Court observed,
the Constitution "does not require a new trial every time a juror has
been placed in a potentially compromising situation . . . [because] it
is virtually impossible to shield jurors from every contact or influence
that might theoretically affect their vote." Id. at 217. In Remmer v.
United States, 347 U.S. 227 (1954), an outsider apparently offered a
juror a bribe in return for a favorable verdict; the trial judge ordered
an investigation without disclosing the proffered bribe or investiga-
tion to defense counsel. Even in these circumstances, the Court did
not require automatic reversal of the conviction. Instead, it directed
the trial court to conduct a hearing to determine the prejudicial impact
of the developments. Id. at 230. Smith and Remmer thus contemplate
the precise inquiry that Sherman characterizes as impossible: discern-
ing the effect of juror misconduct or bias on the verdict without exam-
ining the thought processes of the jury.
Following the Supreme Court's lead, this court has repeatedly
examined instances of juror misconduct and bias for harmlessness.
See United States v. Seeright, 978 F.2d 842, 849-50 (4th Cir. 1992)
(juror's independent investigation of evidence did not require a mis-
trial when judge excused juror from further service and satisfied him-
self that other jurors were not affected); Stockton v. Virginia, 852 F.2d
740, 743-46 (4th Cir. 1988) (jury's exposure to improper third-party
contact examined to determine extent of prejudice), cert. denied, 489
U.S. 1071 (1989); United States v. Malloy, 758 F.2d 979, 982-83 (4th
Cir.) (juror's previous service at trial of co-defendant did not require
a new trial), cert. denied, 474 U.S. 1009 (1985); Miller v. Harvey, 566
F.2d 879, 881 (4th Cir. 1977) (jury's improper experiment, in which
one juror bit another to observe the resulting bruises, did not violate
due process and thus did not require granting a writ of habeas
corpus),cert. denied, 439 U.S. 838 (1978). Likewise, other courts
have applied harmless error analysis to such claims. See, e.g., Lawson
v. Borg, 60 F.3d 608, 612-13 (9th Cir. 1995) (juror's comments about
defendant's reputation for violence subject to harmless error analy-
8
sis); United States v. De La Vega, 913 F.2d 861, 869-71 (11th Cir.
1990) (jury foreman's actions of reading a book, showing book to
other jurors, and organizing deliberations based on book subject to
harmless error analysis), cert. denied, 500 U.S. 916 (1991); Marino
v. Vasquez, 812 F.2d 499, 504-07 (9th Cir. 1987) (juror's out of court
experiment, in which she attempted to fire a weapon while holding it
in a position consistent with defense's version of shooting, subject to
harmless error analysis).
Abundant caselaw thus rejects any special rule of automatic rever-
sal for unauthorized juror site visits. Such visits do not, as Sherman
alleges, "defy" harmless error inquiry. In performing that inquiry, a
court can look to the nature and extent of the juror's activity and
assess how that activity fit into the context of the evidence presented
at trial. See De La Vega, 913 F.2d at 870-71. The court can consider
whether the juror learned information that was merely cumulative of
other evidence or whether he unearthed new information not previ-
ously presented to the jury. See Farese v. United States, 428 F.2d 178
(5th Cir. 1970) (jury finds substantial sum of money in shirt admitted
into evidence; existence of money unknown to court or parties). In
short, juror site visits may be casual or they may be intensive. They
may reveal much or they may uncover little. It makes no sense, how-
ever, to apply to this wide range of circumstances a single rule of
automatic reversal. Rather, an assessment of the degrees of potential
prejudice from a site visit is ideally suited for harmless error inquiry.
The inquiry here is no more speculative than consideration of other
errors that are examined for harmlessness. All harmless error analysis
involves some level of indeterminacy because, "in the end no judge
can know for certain what factors led to the jury's verdict." Sullivan,
508 U.S. at 284 (Rehnquist, C.J., concurring). Nonetheless, reviewing
courts may capably judge the effect of the unconstitutional admission
or exclusion of particular evidence, Crane, 476 U.S. at 691, including
the admission of an involuntary confession, Fulminante, 499 U.S. at
306-12. And they are able to gauge the effect of a partial denial of a
defendant's right to be present at trial, Rushen , 464 U.S. at 117-19
and n.2, and limitations on the right to cross-examine witnesses, Van
Arsdall, 475 U.S. at 681-84. By comparison to these errors, assessing
the effect of a juror's site visit does not involve an unacceptable level
of conjecture.
9
Our conclusion that harmless error analysis applies here is rein-
forced by the Supreme Court's treatment of errors that have a more
direct influence on the jury's deliberative process. For instance, "the
Court has subjected jury instructions plagued by constitutional error
to harmless-error analysis." United States v. Gaudin, 115 S. Ct. 2310,
2321 (1995) (Rehnquist, C.J., concurring); see , e.g., Yates v. Evatt,
500 U.S. 391 (1991), disapproved in part on other grounds, Estelle
v. McGuire, 502 U.S. 62, 72-3 n.4 (1991); Carella, 491 U.S. 263;
Rose, 478 U.S. at 579-82. Juries receive instructions from the trial
court, and that guidance carries the court's official sanction. Yates,
500 U.S. at 403. Yet the Supreme Court has held that even an errone-
ous instruction carrying the court's imprimatur can be harmless if the
faulty instruction is "unimportant in relation to everything else the
jury considered on the issue in question, as revealed in the record."
Id. at 403. The discrete error is viewed from the perspective of the
total trial.
If instructional errors that carry the trial court's seal of approval
can be harmless, a juror site visit can also be harmless. Far from
viewing such a visit as officially sanctioned, other jurors will know
that the visit was improper. At a minimum, we cannot conclude that
one juror's unauthorized site visit is a structural error that renders
every trial inherently unfair. We conclude, to the contrary, that the
issue here is amenable to the traditional tools of harmless error analy-
sis.
III.
We must next address which harmless error standard applies to the
error alleged in this case. In habeas proceedings, an error is harmful
only if it "``had substantial and injurious effect or influence in deter-
mining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)). We have consistently applied the Brecht standard on collat-
eral review. Tuggle v. Netherland, 79 F.3d 1386, 1392-93 (4th Cir.
1996); Correll v. Thompson, 63 F.3d 1279, 1291 (4th Cir. 1995), cert.
denied, 116 S. Ct. 688 (1996). Sherman argues, however, that the
Brecht standard is inapplicable here. Relying on decisions of the
Eighth Circuit, Sherman asserts that the stricter harmless error stan-
dard of Chapman v. California, 386 U.S. 18 (1967), governs our
10
review because, unlike in Brecht, the Maryland courts allegedly failed
to apply the Chapman standard on direct review. See Starr v.
Lockhart, 23 F.3d 1280, 1292 (8th Cir.), cert. denied, 115 S. Ct. 499
(1994); Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993),
cert. denied, 114 S. Ct. 1631 (1994).
Brecht cannot be so easily circumvented. That decision recognizes
that a federal court's collateral review of state court convictions
implicates the "State's interest in the finality of convictions that have
survived direct review within the state court system." Brecht, 507
U.S. at 635; see also Barefoot v. Estelle, 463 U.S. 880, 887 (1983).
Based on this weighty state interest, the Supreme Court has frequently
applied different rules to direct and collateral review. Brecht, 507
U.S. at 633-35. And Brecht itself rested on this respect for the finality
of state court convictions. As the Court noted,"[o]verturning final
and presumptively correct convictions on collateral review because
the State cannot prove that an error is harmless under Chapman
undermines the States' interest in finality and infringes upon their
sovereignty over criminal matters." Id. at 637. Consequently, it con-
cluded that a less onerous harmless error standard was "better tailored
to the nature and purpose of collateral review and more likely to pro-
mote the considerations underlying" its habeas jurisprudence. Id. at
638.
These principles of federalism, comity, and finality apply regard-
less of the harmless error standard used by the state court. We have
already recognized as much in Smith v. Dixon, 14 F.3d 956 (4th Cir.)
(en banc), cert. denied, 115 S. Ct. 129 (1994). There, we applied the
Brecht standard in a habeas proceeding where the state court (because
it found no error) conducted no harmless error analysis. Id. at 974-81.
And at least three other circuits have rejected the Eighth Circuit's rea-
soning. Castro v. Oklahoma, 71 F.3d 1502, 1516 n.14 (10th Cir.
1995); Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995), cert.
denied, 116 S. Ct. 697 (1996); Horsley v. Alabama, 45 F.3d 1486,
1492 n.11 (11th Cir.), cert. denied, 116 S. Ct. 410 (1995). In the pres-
ent case, Sherman received full consideration of his claim by the
Maryland courts, including a post-trial evidentiary hearing in which
juror Miller testified and was subject to cross-examination. See
Brecht, 507 U.S. at 636. The trial itself occurred some eight years
ago. And the federal district court was the fifth court asked to assess
11
the effect of juror Miller's site visit; we are the sixth. Collateral
review in this case thus implicates the same interests of respect for
final state convictions that animated the Brecht decision.
Our conclusion is reinforced by the implications of the rule that
Sherman suggests. In many habeas cases, a state court will have
rejected the petitioner's claim of error, and thus will have had no
opportunity to apply harmless error analysis. Tyson, 50 F.3d at 446;
Smith, 14 F.3d at 979. Sherman would have us ignore Brecht's com-
mands in these cases, a "limitation that would rob the decision of any
general significance." Tyson, 50 F.3d at 446.
Moreover, it is unwise to make our harmless error standard turn on
a characterization of the state court's standard of review. Hinging a
habeas court's standard on such an inquiry will inevitably lead to liti-
gation over what methodology of review the state court applied. This
in itself is intrusive. State courts have no obligation to use particular
language in considering claims presented in their courts. See Coleman
v. Thompson, 501 U.S. 722, 739 (1991). But the rule Sherman pro-
poses will place an implicit obligation on state courts to do just that.
Finally, inconsistent harmless error standards on collateral review will
prove to be confusing and inequitable. We shall adhere consistently
to the Brecht standard in collateral proceedings.
IV.
We turn finally to whether juror Miller's site visit had a "``substan-
tial and injurious effect or influence in determining the jury's ver-
dict.'" Brecht, 507 U.S. at 637 (citation omitted). We hold that it did
not.1
_________________________________________________________________
1 The Antiterrorism and Effective Death Penalty Act of 1996 does not
address harmless error standards governing cases arising under 28 U.S.C.
§ 2254. See Pub. L. 104-132, 110 Stat. 1214 (1996). The Act, however,
does require a federal habeas court to defer to state court legal determina-
tions. Id., § 104. In view of the fact that we affirm the district court and
deny habeas relief in all events, we have no occasion to address whatever
additional hurdles Sherman might face under the Act.
12
At the post-trial hearing in state court, juror Miller testified that
two or three days into the trial he drove to the crime scene with his
wife. His visit seemed motivated by a simple sense of curiosity. Mil-
ler acknowledged that he saw the Sherman house and the tree where
police officers recovered the weapon. As he said, he made the visit
"so I could see the tree that was so much in question." Based on juror
Miller's testimony, it is not clear whether he ever left his car for a
more detailed inspection of the area.2
We agree with the district court that Miller's site visit was harm-
less. First, whatever juror Miller may have observed did not have a
"substantial and injurious" influence on the jury's verdict because it
was cumulative of the abundant evidence admitted at trial about the
crime scene. See Brecht, 507 U.S. at 639. That evidence included
numerous photographs, videotapes, and extensive testimony about the
Shermans' neighborhood and the tree where police found the weapon.
The introduction of this large amount of evidence persuaded the
Maryland courts that Miller's visit would add little to what the jury
already knew. When the state trial court rejected Sherman's motion
for a new trial, it referred to its earlier ruling denying a request to
have the jury "view" the crime scene: "I denied the view, not because
I felt that any significant information would come about, but I felt it
would be a waste of time and expense to take the jury out there
because I felt the issue was fully covered. So that I think that [Miller's
visit] is not of such a magnitude as to warrant a new trial or reversible
appeal." Likewise, the Maryland appellate court remarked on the "nu-
merous testimonial references, videotapes, and photographs relating
to and depicting the crime scene."
_________________________________________________________________
2 In the state court hearing, Miller did not say -- nor was he asked --
whether he left his car, and for purposes of our review we need not
assume that he merely observed the crime scene from his car. Miller's
description of the visit, however, left the impression with at least two
courts that he stayed in his car. The Maryland Court of Special Appeals
said, without more, that Miller "drove to the neighborhood of the murder
scene." And the panel of this court that remanded Sherman's petition to
the district court for further consideration said that Miller "found the tree
but did not leave his car [ ] to inspect it." Sherman v. Smith, No. 92-6947,
slip op. at 5 (4th Cir. 1993) (per curiam).
13
The district court also concluded that Miller's site visit was cumu-
lative of other evidence presented at trial. In particular, the court
addressed the specific claim that Sherman presses most forcefully in
his petition: that Miller's visit may have led him to conclude that
Sherman, despite a slight build, had the ability, as well as the opportu-
nity, to hide the weapon in the thick branches of the tree -- an issue
Sherman contends was a key contested question at trial. In reviewing
this claim, the court granted Sherman the benefit of several assump-
tions: "that Miller examined the tree, told the other jurors that he dis-
agreed with the photographs, and concluded that it was possible for
Sherman to hide the gun in the tree in the condition in which it was
found." Even under these assumptions, the district court found that
the error was harmless because substantial other evidence indicated
that Sherman hid the weapon in the tree. That evidence included pho-
tographs showing that Sherman had an opportunity to hide the
weapon in the tree, which was located on the route between the Sher-
man and Gibson houses. Testimony introduced at trial also indicated
that Sherman had previously used -- as a hiding spot -- the precise
place in the tree where the gun was hidden.3 In this context, the dis-
trict court appropriately concluded that the juror's site visit "was
cumulative of the detailed evidence presented at trial" about the
neighborhood where the murder took place and the hiding place for
the weapon.
_________________________________________________________________
3 Sherman contends that Corporal Hopkins, who removed the weapon
from the tree, cast serious doubt on Sherman's ability (because of his
slight build) to wedge the weapon in the tree. Hopkins, who was six feet
tall and 210 pounds, testified at trial that "with [his] size and stature" he
"would have had difficulty putting the gun inside the tree." But Hopkins
also testified that the person who put the weapon in the tree "would not
[have] to be strong, but had to be forceful." Under questioning, Hopkins
even left open the possibility that the weapon could have been thrown
into the tree: as he said, he could not "put a figure on the force [used to
hide the weapon] or if someone would have thrown it would it have
landed in the same position; I can't answer that. It was deeply placed
inside the tree." Finally, the state emphasized that the gun proved diffi-
cult to remove because the officers did not want to disturb this key piece
of evidence. In short, Hopkins' testimony is hardly the confirmation of
reasonable doubt that Sherman makes it out to be.
14
Second, the state offered powerful evidence at trial from which the
jury concluded that Sherman killed his mother and stepfather. The
murder occurred in the middle of the night when Sherman was home;
there was no indication of forced entry, and the house was equipped
with an alarm system. The murder weapon was a 12-gauge shotgun
that belonged to the Shermans. Police discovered Sherman's finger-
prints above the weapon's trigger assembly and a box of 12-gauge
shotgun shells under his mattress. The box itself contained only three
shells, and police located two matching (the box held five) expended
shells that experts concluded were fired from the murder weapon.
Police found the shotgun lodged in the branches of a tree, where, as
already noted, Sherman had previously hidden objects and which is
located between his own house and that of his grandparents where he
ran to report the murder.
Sherman argues, in response, that the question of guilt in this case
was a close one. He emphasizes that at trial the state could not point
to a motive for the murders. And he notes that officers discovered no
gunpowder residue, pine needles or sap on his hands or clothing.
Given what he characterizes a close case, Sherman contends that Mil-
ler's investigation of the crime scene, and in particular the tree, can-
not be considered harmless because the characteristics of the tree
were relevant to a crucial disputed point at trial: whether Sherman
could have hidden the weapon there.
Sherman's argument is simply overwhelmed by what we alluded to
earlier, namely, the powerful array of evidence presented at trial that
convinced the jury that Sherman was guilty. And, even if Miller's site
visit generated conclusions damaging to Sherman about the tree, we
already observed that there was substantial other evidence from which
the jury could conclude that Sherman hid the weapon in the tree. In
fact, considering the evidence that contributed to the jury's verdict,
the juror's site visit is nothing more than a roundabout way for Sher-
man to challenge the sufficiency of the evidence against him, an argu-
ment that Sherman himself admits cannot succeed.
In light of all the evidence presented at trial, we harbor no "grave
doubt as to [the] harmlessness" of Miller's site visit. O'Neal v.
McAninch, 115 S. Ct. 992, 995 (1995). We conclude that the unautho-
rized excursion to the crime scene was harmless. A new trial -- some
15
eight years after the fact -- would not produce a fairer, more reliable,
or more just verdict than the one already rendered.
V.
For the foregoing reasons, we affirm the judgment of the district
court and deny Sherman's petition for a writ of habeas corpus.
AFFIRMED
MURNAGHAN, Circuit Judge, dissenting:
The United States Constitution guarantees criminal defendants the
right to "a fair trial in a fair tribunal" and a jury verdict "based upon
the evidence developed at the trial." Irvin v. Dowd, 366 U.S. 717, 722
(1961) (citations omitted). "This is true, regardless of the heinousness
of the crime charged, the apparent guilt of the offender or the station
in life which he occupies." Id. In the matter before us, neither the trial
nor the tribunal was fair because a juror made an unauthorized and
unsupervised visit to the scene of the crime which, though discussed
with other jurors, remained undisclosed to the parties and the court
until after the guilty verdict had been returned. The majority decision
upholding the conviction despite this fundamental flaw, therefore,
strikes a blow to the foundations of American criminal jurisprudence
and sacrifices the integrity of the means our nation has chosen for
what the majority views to be the proper ends in this specific case.
Even a wrong that appears slight becomes significant when it has the
power to lessen public confidence in our guarantee that a jury trial
will be a fair trial, and thus cannot be ignored.
I.
Here, Timothy Sherman's trial was not fairly conducted. At the
start of it, jurors received a handbook to assist them in understanding
their duties which cautioned them about discussing evidence among
themselves and considering information from outside the courtroom.
The handbook stated that "a juror should never, while a trial is in
progress, inspect the scene of an accident or other event involved in
the case."1 Handbook at 33. The defense asked that the jury be
_________________________________________________________________
1 While nothing in the handbook"is to be regarded by jurors as instruc-
tions in law," the pamphlet makes clear what constitutes proper evidence
and that an unsupervised or unpermitted inspection of the scene of the
crime is wrong.
16
allowed to visit the crime scene, but the trial judge refused.2 During
the presentation of evidence, two central issues arose: whether the
defendant--6' 2" tall and weighing but 130 pounds--possessed the
physical capability to lodge the shotgun deep into the branches of a
thick pine tree as it was found; and whether the defendant could have
hidden the gun in the tree without generating some outward signal of
his efforts, such as a scratch from a branch or tree sap and pine nee-
dles on his person.
One juror, confused by the seemingly conflicting testimony on
these issues and the unrevealing photographs of the tree, took it upon
himself to see, i.e., to witness, "the tree that was so much in question."3
In disregard of the handbook and without the knowledge of the par-
ties, their counsel or even the judge supervising the trial, the juror and
his wife drove one evening after court ended for the day to the subdi-
vision where the crime had occurred.
Because of the sparse inquiry into the matter at a post-trial hearing,
we do not have all of the facts concerning the juror's investigation.4
We do know that he located the Sherman house and then drove
through the neighborhood "looking for a tree that was so involved in
the case." We also know that he found the tree. We do not know,
though, whether the juror touched the tree in an attempt to determine
if there was exposed sap or loose needles, or even conducted his own
experiment by trying to force something down among the branches.
_________________________________________________________________
2 The State has asserted that the jury knew about neither the request nor
the denial. Those circumstances do not change the fact that a site visit
was precluded both before the request and after the denial.
3 Photographs of the tree and the neighborhood had been introduced at
that point in the trial, but the juror wanted a clearer view.
4 Federal and state evidentiary rules forbid inquiry into how outside
influences might have affected the jury's deliberations and verdict, but
permit questioning about whether extraneous prejudicial information was
improperly brought to the attention of any juror. Fed. R. Evid. 606(b);
Md. R. Evid. 5-606(b). Thus the parties could have asked for the details
of the juror's visit. The trial judge prohibited the question of why the
juror went to the site, but the juror explained his actions anyway, testify-
ing at the post-trial hearing that "the reason why I went there was so I
could see the tree that was so much in question."
17
Nor do we know whether he tried to gauge the distance between the
two houses and the tree.
The wayward juror told others on the panel of his outing.5 The trial
judge and the parties learned of the impropriety only after the jury had
rendered its verdict, when it was too late to take corrective action.
Before deliberations began, therefore, the judge had no reason to
remind the jurors to disregard outside viewing of a scene nor to direct
them specifically to ignore any information gathered during the
juror's visit to Sherman's neighborhood. See Jeffries v. Blodgett, 5
F.3d 1180, 1191 (9th Cir. 1993) (finding unfair prejudice where infor-
mation that the defendant was a convicted criminal was conveyed to
jurors outside the courtroom without the attorneys and the judge
knowing or having an opportunity to correct), cert. denied, 114 S. Ct.
1294 (1994). We do not know what role the juror's independent
investigation played in his own mind or in deliberations because we
cannot inquire into such matters. See Mattox v. United States, 146
U.S. 140, 149 (1892) (holding inadmissible juror testimony regarding
the motives and influences which affected the jury's deliberations).
Nor do we have juror testimony regarding the presence or absence of
prejudice resulting from the visit.6 See United States v. Seeright, 978
_________________________________________________________________
5 Sherman has submitted the affidavit of an alternate juror, indicating
that the juror told the others about his investigation and shared what he
learned. Because that affidavit was not presented before a state court,
however, there is some question as to whether it may properly be consid-
ered on federal habeas review. See Boggs v. Bair, 892 F.2d 1193, 1199
n.2 (4th Cir. 1989) (prohibiting the introduction of an affidavit for the
first time on federal habeas review after determining that it could have
been presented at state court proceedings), cert. denied, 495 U.S. 940
(1990). We previously ruled in the present matter that the state court's
determination that the unauthorized site visit did not warrant a new trial
was not a finding of fact entitled to deference under 28 U.S.C. § 2254(d),
but subject to de novo review in a federal habeas proceeding. Sherman
v. Smith, 8 F.3d 820 (table), 1993 WL 433317, at *4 (4th Cir. Oct. 27,
1993) (unpublished) (No. 92-6947); see also Lawson v. Borg, 60 F.3d
608, 612 (9th Cir. 1995) (stating that the harmlessness of a constitutional
error is not a factual determination entitled to§ 2254(d)'s presumption
of correctness). It therefore would seem proper for the federal habeas
court to consider the affidavit, as the district court here did, especially
considering the time when the subject arose.
6 There was no questioning of individual jurors regarding the possibil-
ity of taint or prejudice here, nor was there warning by the judge for the
jurors to avoid it.
18
F.2d 842, 850 (4th Cir. 1992) (finding that a juror's personal investi-
gation and sharing of result with rest of panel did not warrant a mis-
trial because the trial judge dismissed the offending juror and
questioned each of the other jurors individually and specifically until
he was satisfied that they were neither tainted nor prejudiced).7
_________________________________________________________________
7 Like the instant case, Crockett v. Commonwealth, 47 S.E.2d 377 (Va.
1948), concerned a prosecution for murder and an unauthorized, though
innocent, jury view of the crime scene. There, though, the question of the
burden of proof to show prejudice or lack thereof was at issue. Id. at 386.
The Virginia Supreme Court of Appeals reversed the conviction and
ordered a new trial. Id. at 387. Not deciding whether the Virginia rule
requiring the defendant's presence on a jury view came into play in the
matter before it, the court said a new trial was necessary to protect "the
fundamental rights of an accused." Id. at 385. The court concluded:
We cannot say that impressions the jury could have so obtained
may not have been harmful to the accused. Though no wrongful
action was intended . . . the happening casts a shadow of such
magnitude over that part of the proceedings as to constitute such
misconduct on their part as to impose upon the Commonwealth
the burden of disproving any harmful result to the accused. That
such proof, under the circumstances here presented, is difficult
if not well-nigh impossible, does not render less imperative the
necessity of its production.
Id. at 386.
Roberts v. United States, 60 F.2d 871 (4th Cir. 1932), also concerned
an unauthorized visit by jurors to the scene of the crime involved in the
case. There, however, the court found that the mere fact that an unautho-
rized view took place caused no prejudice to the defendant, but said
nothing about on whom the burden of proving prejudice fell. Id. at 873.
Relying on Roberts, the court in People v. Kraus, 265 N.Y.S. 294 (Ct.
Gen. Sess. 1933), found no prejudice shown to have resulted from an
independent site visit by a juror who was unaware that his actions were
improper. Id. at 297-300. The trial court admitted that it had failed to
order the jurors not to visit the scene of the crime. Id. at 296. Another
case invoking Roberts, Orenberg v. Thecker, 143 F.2d 375 (D.C. Cir.
1944), found that an unauthorized visit to the scene brought no extrane-
ous influences to bear upon the jurors and therefore affirmed the trial
court's denial of a new trial. Id. at 376. United States v. Kansas City,
MO, 157 F.2d 459 (8th Cir. 1946), also relied on Roberts in holding that
the verdict was not affected by an unauthorized viewing by some of the
jurors of the property at issue in the case. Id. at 462-63. The court there
19
II.
The juror's unauthorized and unsupervised visit clearly amounted
to constitutional error as a violation of Sherman's Sixth and Four-
teenth Amendment rights. The majority treats the error as a trial
defect and holds it to be harmless. If harmlessness were the proper
inquiry, I do not agree with the majority's finding. In my opinion, the
personal viewing of the tree was harmful because it allowed the injec-
tion of evidence without the defendant having an opportunity to
object, confront or cross-examine.8 Actual, secret, physical inspection
_________________________________________________________________
also made much of the fact that, if a request for permission to view had
been requested, it "would doubtless have been granted." Id. at 462.
Neither Roberts nor its progeny expressed any belief or concern that
unauthorized viewing was unconstitutional. While they therefore did not
address the question of whether the error was "structural" or "trial," that
omission is understandable because they antedated the United States
Supreme Court's decision that constitutional errors could be harmless in
Chapman v. California, 386 U.S. 18 (1967). Most significantly, however,
these cases did not even allude to the vital rights of confrontation and
cross-examination of which the parties were deprived. Nor did they con-
cern situations where a visit to the scene was not only unauthorized but
specifically forbidden.
In considering the matter before us, we cannot overlook the fact that
evidentiary rules precluded the parties from questioning the jurors--
including the maker of the forbidden site visit--as to what effect the
unauthorized viewing had on them and that the juror's actions directly
violated both the handbook and the trial judge's denial of a jury visit to
the scene. Despite the results in Roberts, the error in Sherman's case very
clearly involves both the flawed structural character of the jury trial he
was given and exhibits a behavior infraction that amounted to a funda-
mental invasion of the defendant's rights.
8 Unauthorized juror viewing of the scene at issue in an ongoing trial
is not generally acceptable conduct. Ruling in an 1888 case deemed
"without precedent" and "of the greatest importance," Scottish judges
found that a juror's unpermitted and unsupervised visit to the site of an
injury led to "a gross miscarriage of justice." Sutherland v. Preston-
grange Coal & Firebrick Co., 15 R. (Ct. of Sess.) 494, 495 (Scot. 1888).
In setting aside the jury verdict, the judges viewed it as largely irrelevant
20
of the tree can in no way be construed as "cumulative" of the evidence
presented at trial, which consisted of photographs, videotape and tes-
timony. The juror presumably would not have made his outing if that
evidence were sufficient for him to resolve the issues in dispute. Even
the district court, accepting that there was error in the juror's actions
but finding it harmless, acknowledged that the prosecution's most
_________________________________________________________________
whether the juror had influenced his fellow panel members. The Lord
President explained:
The jury are empaneled and sworn to return a verdict according
to the evidence led before them. They are not entitled to proceed
upon anything else but the evidence given upon oath, and if they
do proceed upon anything else they cannot return a verdict
according to their oath. . . . I think therefore it is essential to the
justice of the case that we should grant a new trial.
Id. at 495-96. A second judge expressed his opinion as follows:
It is impossible to feel satisfied that the verdict in this case was
returned according to the evidence laid before the jury. It is
impossible to believe that this gentleman . . . was not impressed
by what he saw. He therefore gave his verdict upon evidence not
obtained at the trial. Whether, or how far, he influenced others
by stating the impression made upon himself it is impossible to
state, but it is very probable that he did to some extent influence
his co-jurors.
Id. at 496 (opinion of Lord Adam).
In Rex v. Ryan, 4 W.W.R. (N.S.) 32, 101 C.C.C. 101 (Brit. Col. 1951),
the court required a new trial after conviction because the jury in a mur-
der case made an out-of-court excursion without the trial judge's permis-
sion. The Court of Appeal explained:
The jury is a legal institution in which the people take great
pride. Through it the people take their responsible part in the
administration of legal justice. Removal of the jury from all out-
side influences lies at the very foundation of the confidence that
has been maintained in it. It is of the highest importance there-
fore not only that no communication with outsiders shall actually
in fact occur, but also that nothing shall seem to take place which
may weaken respect for the jury in the public mind.
101 C.C.C. at 105 (internal citation omitted).
21
crucial photograph, a close-up of the tree, "does not show me any-
thing on its face." It is therefore impossible to believe that the juror's
investigation did not impress him and possibly others and impossible
to say--as one must in finding harmlessness--that the error did not
have "substantial and injurious effect or influence in determining the
jury's verdict."9 See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
_________________________________________________________________
9 The majority appears to have forgotten the Supreme Court's exhorta-
tions not to focus on the guilt of the defendant but on the effect that the
error had on the jury's verdict. "Harmless-error review looks . . . to the
basis on which the jury actually rested its verdict . . . not whether, in a
trial that occurred without the error, a guilty verdict would surely have
been rendered." Sullivan v. Louisiana, 113 S. Ct. 2078, 2081 (1993)
(citations omitted); see also O'Neal v. McAninch , 115 S. Ct. 992, 994
(1995) (advising appellate judges, when "in grave doubt" about whether
an error was harmless, to treat the error not as harmless, but as though
it affected the verdict).
See generally Harry T. Edwards, To Err is Human, But Not Always
Harmless: When Should Legal Error be Tolerated?, 70 N.Y.U. L. Rev.
1167 (1995). Chief Judge Edwards asserts:
Indeed, Chief Justice Rehnquist says that, in any harmless-error
review, the role of the appellate court is to "determine whether
it is possible to say beyond a reasonable doubt that the error did
not contribute to the jury's verdict."
Only last term, the Supreme Court offered up its decision in
O'Neal v. McAninch, [115 S. Ct. 992 (1995)] the crown jewel in
the decisions moving away from guilt-based applications of the
harmless-error doctrine. In O'Neal, the Court considered what
action a federal habeas court must take when, upon review of a
state-court judgment from a criminal trial, it finds itself left in
"grave doubt" as to whether a constitutional error was harmless.
The court, in an opinion by Justice Breyer, held that the appellate
judge in such a case should treat the error not as harmless, but
rather as though it affected the verdict. This conclusion, the
Court stated, is consistent with the application of the Kotteakos
[v. United States, 328 U.S. 750 (1946)] standard, which applies
even to constitutional errors in habeas proceedings, and which
admonishes that "``if [a reviewing court] is left in grave doubt [as
to the harmlessness of an error], the conviction cannot stand.'"
Id. at 1201-02 (emphasis in original; footnotes omitted). How can one
properly regard as non-structural, or harmless, an error where the defen-
22
In any event, I believe that harmlessness review is not appropriate
here because the error is fundamental and structural. The basic frame-
work of our trial system requires that evidence be presented and
_________________________________________________________________
dant is kept altogether ignorant of a witness he should have been allowed
to cross-examine about a matter which played such a central part in the
case?
Chief Judge Edwards describes Justice Breyer's "common-sense view
of harmless error focused not on artificial categories of cases, but on
notions of fundamental fairness." Id. at 1202. He notes that O'Neal
establishes that "the proper measure of harmlessness is whether the error
``had substantial and injurious effect or influence in determining the
jury's verdict,' not whether the record evidence is sufficient absent the
error to warrant a verdict of guilt." Id. (Emphasis in original; citation
omitted).
In note 160, Judge Edwards continues:
In Kyles v. Whitley, 115 S. Ct. 1555, 1566 (1995), the Court
ruled that, in determining whether the defendant has been preju-
diced by a violation of Brady, "[t]he question is not whether the
defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received
a fair trial, understood as a trial resulting in a verdict worthy of
confidence." . . . According to the majority[of the Supreme
Court] "[a] defendant need not demonstrate that after discounting
the inculpatory evidence in light of the undisclosed evidence,
there would not have been enough left to convict." . . . Thus, this
case seems to return to Kotteakos's original focus on the severity
of the error rather than the cumulative weight of the untainted
evidence.
Id. at 1203. The article describes the Supreme Court as making "it clear
that ``[a]n error may seriously affect the fairness, integrity or public repu-
tation of judicial proceedings independent of the defendant's innocence."
Id. at 1204 (emphasis in original).
Judge Edwards concludes by saying that "[t]he mission of the appel-
late courts in evaluating claims of harmless error should be to address
significant errors and ensure fundamental fairness." Id. at 1209. The
statement is reminiscent of the Supreme Court's admonition that a prose-
cutor's interest in a criminal case "is not that it shall win a case but that
justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935).
The interest of the trial judge is at least as great.
23
tested in a public courtroom before the jury, the judge and the defen-
dant. Turner v. Louisiana, 379 U.S. 466, 472-73 (1965) (stating that
"[t]he requirement that a jury's verdict``must be based upon the evi-
dence developed at the trial' goes to the fundamental integrity of all
that is embraced in the constitutional concept of trial by jury" and that
the Constitution requires "at the very least that the ``evidence devel-
oped' against a defendant shall come from the witness stand in a pub-
lic courtroom where there is full judicial protection of the defendant's
right of confrontation, of cross-examination, and of counsel"); see
also Pointer v. Texas, 380 U.S. 400, 405 (1965) ("There are few sub-
jects, perhaps, upon which this Court and other courts have been more
nearly unanimous than in their expressions of belief that the right of
confrontation and cross-examination is an essential and fundamental
requirement for the kind of fair trial which is this country's constitu-
tional goal. Indeed, we have expressly declared that to deprive an
accused of the right to cross-examine the witnesses against him is a
denial of the Fourteenth Amendment's guarantee of due process of
law.") Independent and unauthorized jury viewing therefore is prohib-
ited.
The Ninth Circuit Court of Appeals reaffirmed these fundamental
principles in a recent opinion. United States v. Noushfar, 78 F.3d
1442 (9th Cir. 1996). Reversing and remanding for a new trial, the
court held that allowing the jury to listen to matters that had never
been presented in open court requires reversal because the jury's con-
sideration of evidence is "a stage of the trial at which the presence of
the defendant is required." Id. at 1444. The court went on to say:
The court completely abdicated control of the presentation
of the evidence. . . . In cases where the error is so fundamen-
tal and defies meaningful review, we have said that harmless
or plain error analysis may not be applied. Instead, we find
the error to be a structural error requiring automatic reversal
. . . . [In an earlier case,] we said that structural error analy-
sis was the correct approach where there was a "complete
abdication of judicial control over the process."
Id. at 1445.10
_________________________________________________________________
10 The opinion of the majority in the instant case therefore seems to
create a circuit split inviting the Supreme Court to grant certiorari. Per-
haps then the majority opinion would be shown to have but a short life.
24
A mistake that violates basic trial structure and taints the entire
process is most properly labelled "structural error." See Brecht, 507
U.S. at 629-30 (discussing difference between structural and trial
error);11 Arizona v. Fulminante, 499 U.S. 279, 306-10 (1991) (same).
The impact of a juror's personal gathering of evidence outside the
courtroom by way of an unsupervised--indeed forbidden--viewing is
difficult to isolate and assess. See Fulminante , 499 U.S. at 307-09
(explaining that trial error may be "quantitatively assessed . . . in
order to determine whether its admission was harmless" while struc-
tural error defies such analysis);12 see also Brecht, 507 U.S. at 629
_________________________________________________________________
11 It should not be overlooked that the Supreme Court in Brecht relied
very much on the fact that state courts had earlier found the error harm-
less beyond a reasonable doubt in concluding that the federal court on
habeas corpus review need not duplicate the analysis set forth in
Chapman, 386 U.S. at 24. Brecht, 507 U.S. at 635-38. Here, there was
never a state court finding pursuant to Chapman , so requiring that
inquiry may not as easily be viewed duplicative and unnecessary.
12 Again, there was no opportunity in Sherman's case to determine
whether the error could be cured and thus deemed harmless. Neither the
trial judge nor Sherman knew of the site visit and resulting breach of
Sherman's right of cross-examination until after the jury had rendered its
verdict. Under different circumstances, the matter might well require a
different outcome. The fact remains, however, that the error in Sher-
man's case remained unaddressed and uncured, and thus violated the
entire structure of the trial.
Although it concerned somewhat different circumstances, State v.
Magwood, 432 A.2d 446 (Md. 1981), is instructive. There, the trial judge
permitted a jury hearing a criminal case to separate overnight despite the
fact that it was in the midst of deliberations. The defendant's counsel
agreed to the separation and the defendant did not object, and the judge
gave the jury the ordinary admonition "not to discuss the case during
their overnight separation or to consult outside references." Id. at 447. In
analyzing the claim of error, the Maryland Court of Appeals emphasized
the judge's instruction not to discuss the case and"not to consult outside
sources." Id. at 451. Although it found no demonstration of "any viola-
tion of this court instruction," the court of appeals declared that if a
breach of the prohibition had occurred, the remedy would have been "to
attack the jury verdict as improperly reached." Id. The court further
found that counsel's acceptance of the jury separation waived the defen-
dant's right to a sequestered jury, but noted that only the defendant could
25
(same). Its pervasive nature cannot be discounted in an attempt to
consider whether it was harmless.
Even if the information gleaned could be called harmless because
it did not substantially influence the jury's verdict, the independent
investigation undermined the integrity of the trial and thus the jury's
decision.13 The harmful and truly the structural nature of the juror's
unauthorized and undisclosed visit to the tree becomes clear with the
realization that Sherman was, as a consequence, deprived of his right
to cross-examine the undisclosed witness.14 Contained in the Sixth
_________________________________________________________________
have waived his right to confront witnesses against him. Id. at 450. Here,
of course, neither Sherman nor his counsel could waive his rights
because they did not know of the unpermitted jury excursion. Further-
more, the forbidden juror activity actually occurred.
It is also helpful to consider State v. Collins , 288 A.2d 163 (Md. 1972).
There, notice of a deposition was sent to, but not actually received by,
the defendant. His counsel nevertheless appeared and cross-examined the
witness. Id. at 168. The Maryland Court of Appeals reversed the convic-
tion and remanded for a new trial, noting that it had made "assiduous
efforts to protect the constitutional guarantee of confrontation at all
stages of a trial" and that "these efforts would be meaningless if this invi-
olable right could be circumvented by allowing the deposition of a wit-
ness, taken while the accused is involuntarily absent, to be admitted in
evidence at trial." Id. at 170.
13 In Sutherland, the Scottish court required a new trial although it
could not be sure whether the improperly behaving juror influenced his
fellow jurors or himself. 15 R. (Ct. of Sess.) at 495-96. The court essen-
tially found that the jury's verdict was structurally deficient, ruling that
it had not been returned "according to their oath." Id. at 495.
14 The outcome in Delaware v. Van Arsdall, 475 U.S. 673 (1986), illus-
trates an essential distinction. Upon review of a reversal of a conviction
because of a restriction on the defendant's ability to cross-examine a wit-
ness which violated his Confrontation Clause rights, the Court remanded
to allow harmlessness to be explored. Id. at 684. Unlike Sherman's situa-
tion, the defense in Van Arsdall was fully aware of the bias issues it
sought to explore with cross-examination, but was denied the opportu-
nity. Hence, remand to examine whether prejudice or harm had occurred
was appropriate, for the error was a trial error. On remand, the Supreme
Court of Delaware held that the error violated the Delaware Constitution
and was not harmless. Van Arsdall v. State, 524 A.2d 3, 6 (Del. 1987).
26
Amendment's guarantee that a defendant will be informed of the
nature of the accusation and confronted with the witnesses against
him, cross-examination is both a fundamental right and perhaps the
most critical tool to be employed in the representation of a criminal
defendant. Pointer, 380 U.S. at 404-05. Allowing a juror to conduct
his own investigation outside the courtroom in an attempt to answer
questions that arose in the criminal matter before him certainly "af-
fects the framework within which the trial proceeds" and justifies
automatic reversal of the conviction. Fulminante , 499 U.S. at 309-10.
I therefore do not believe that we can say that Sherman's trial "reli-
ably serve[d] its function as a vehicle for determination of guilt or
innocence, and that [the] criminal punishment may be regarded as
fundamentally fair." Id. at 310 (quoting Rose v. Clark, 478 U.S. 570,
577-78 (1986)). It is not fundamentally fair to the parties for a juror,
in effect, to conduct privately his own trial.
A juror's reliance upon extrinsic information, even if that informa-
tion is accurate and useful, "would tend to obstruct the administration
of justice, because even a correct conclusion is not to be reached or
helped in that way, if our system of trials is to be maintained."15
_________________________________________________________________
Sherman, though he would be aware of how vital cross-examination
of the errant juror would be if he testified, was totally ignorant that the
juror had in essence become a witness subject to cross-examination.
Thus, harmlessness could not possibly be found. Under the circum-
stances of Van Arsdall, knowledge of the witness's presence and the pos-
sibility of exploration by cross-examination perhaps allowed the error to
be treated as a "trial" error. In Sherman's case, however, the error was
clearly "structural" from the moment it occurred. Sherman, altogether
unaware that he was being denied the right of confrontation, cannot be
faulted for not attempting to cross-examine. The artificial category of
cases labelled "Confrontation Clause" cases and deemed amenable to
harmless-error review should not be permitted to eradicate "notions of
fundamental fairness."
15 Again, the principle is fundamental to Anglo justice systems. In
ordering a new trial after jurors had improperly asked questions of a
boatman taking them on an authorized view, an Australian court stated:
It is quite clear that a jury, sworn to find their verdict according
to the evidence, cannot have any evidence before them except
27
Patterson v. Colorado, 205 U.S. 454, 462 (1907)."The theory of our
system is that the conclusions to be reached in a case will be induced
only by evidence and argument in open court, and not by any outside
influence." Id. The majority here ignores that fundamental precept
and suggests that, in some cases, jurors may ignore a judge's orders
and seek whatever information they like about a case from whatever
source they wish.16 It overlooks the structural character of the error,
as well as the destructive effect on the public's trust, to allow a jury
trial to be conducted with such blatant violations of governing rules.
III.
Some errors are so egregious that they must be corrected, even if
the result is to overturn a guilty verdict. "Surely no fair-minded per-
son will contend that those who have been deprived of their liberty
without due process of law ought nevertheless to languish in prison.
. . . For such anomalies, such affronts to the conscience of a civilized
society, habeas corpus is predestined by its historical role in the strug-
gle for personal liberty to be the ultimate remedy." Fay v. Noia, 372
U.S. 391, 441 (1963).
The result of granting habeas relief in this case would not necessar-
ily be to let a convicted killer go free. The State of Maryland would
have an opportunity to retry Sherman properly in an attempt to secure
_________________________________________________________________
such as is adduced in open Court, and if such evidence, whether
it be oral or in writing, come to them the verdict may be avoided
. . . . Nor is the case altered by the fact that the evidence so given
out of Court may be true.
Smith v. Neild, 10 N.S.W.L.R. 171, 173 (Aus. 1889) (citations omitted).
16 There is no indication that the misbehaving juror here was sanc-
tioned, or otherwise rebuked or punished, once the error he committed
became known. The lack of such a response suggests that any juror may
so violate a court's directions with impunity. The majority underscores
the message by allowing the error to stand uncorrected. Its decision con-
trols not only in Harford County, Maryland, but in every city and county
in the five states comprising the Fourth Circuit. Hereafter jurors will feel
free to disregard instructions not to perform unsupervised viewing of the
scene of the crime.
28
a conviction from an untainted jury. Here, "[p]ublic confidence in the
fair and honorable administration of justice, upon which ultimately
depends the rule of law, is the transcending value at stake." Sherman
v. United States, 356 U.S. 369, 380 (1958) (Frankfurter, J., concur-
ring). Sherman may well have killed his parents, but we are a less civ-
ilized nation if we do not require the State to prove in a fair trial that
he did so. It is not enough merely that a defendant committed a crime.
The fundamental tenets of our justice system require that he be con-
victed properly.
IV.
For the above reasons and those contained in the earlier majority
opinion of the panel, Sherman v. Smith, 70 F.3d 1263 (4th Cir. 1995)
(unpublished) (per curiam), vacated and reh'g en banc granted (4th
Cir. Jan. 18, 1996), I respectfully dissent. I would favor the grant of
the writ of habeas corpus.
Judge Ervin and Judge Michael join in this dissent.
DIANA GRIBBON MOTZ, Circuit Judge, concurring in part and dis-
senting in part:
As the Supreme Court has specifically recognized, the right at
stake here, the right to have "a jury's verdict .. . based upon the evi-
dence developed at trial[,] goes to the fundamental integrity of all that
is embraced in the constitutional concept of trial by jury." Turner v.
Louisiana, 379 U.S. 466, 472 (1965). Unfortunately, the atrocious
crimes committed and abundant circumstantial evidence pointing to
Sherman as the perpetrator have led the majority to disregard this
bedrock principle. Regardless of how much sympathy we have for the
victims or how certain we may be of Sherman's guilt, we must follow
the Constitution. Adherence to it does not require that Sherman be
released but it does require that he be provided a new trial. Accord-
ingly, although I agree with some of the majority's conclusions, I
must respectfully dissent from its holding.
I.
Most constitutional errors are trial errors and can be harmless, but
some "will always invalidate the conviction." Sullivan v. Louisiana,
29
508 U.S. 275, 279 (1993). Such "structural defects in the constitution
of the trial mechanism . . . defy analysis by ``harmless-error' stan-
dards." Arizona v. Fulminante, 499 U.S. 279, 309 (1990). Structural
errors are those that affect "the framework within which the trial pro-
ceeds." Id. The right at issue in this case -- the right to be convicted
solely on the basis of evidence presented at trial-- seems to me to
fit squarely within this definition. Thus, an error involving this right,
like errors involving the related right to a public trial or the right to
be represented by counsel at trial, should be deemed structural. If we
were writing on the proverbial clean slate, I would so hold.
After all, of what consequence is the right to counsel, to an impar-
tial judge, to a public trial, to a correct reasonable doubt jury instruction,1
or to a criminal trial at all, if a defendant can be convicted based on
evidence not presented at trial. The right to have a conviction based
only on the evidence presented at trial, like other rights whose depri-
vation constitutes structural error, is one of those protections without
which "a criminal trial cannot reliably serve its function as a vehicle
for determination of guilt or innocence, and no criminal punishment
may be regarded as fundamentally fair." Rose v. Clark, 478 U.S. 570,
577-78 (1986) (citation omitted).
Permitting a verdict to be based on evidence other than that pres-
ented at trial, like other structural errors, has repercussions that are
"necessarily unquantifiable and indeterminate, unquestionably qualif-
[ying it] as ``structural error.'" Sullivan, 508 U.S. at 282. This is par-
ticularly true in light of the rules of evidence and the restrictions they
quite legitimately place on any inquiry into jury deliberations. See
Tanner v. United States, 483 U.S. 107, 117-125 (1987). Because they
prohibit any inquiry into the effect that additional, unopposable, and
possibly inadmissible evidence might have on a jury, a juror's expo-
sure to such evidence is necessarily unquantifiable and indeterminate.
See United States v. Bagley, 473 U.S. 667, 693 (1985) ("The private
whys and wherefores of jury deliberations pose an impenetrable bar-
_________________________________________________________________
1 Deprivations of each of these rights has been held to be structural
error. See Sullivan v. Louisiana, 508 U.S. 275 (1993) (reasonable doubt
instruction); Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (public trial);
Gideon v. Wainwright, 372 U.S. 335 (1963) (counsel at trial); Tumey v.
Ohio, 273 U.S. 510 (1927) (impartial judge).
30
rier to our ability to know which piece of information might make, or
might have made, a difference") (Marshall, J., dissenting).
"In the constitutional sense, trial by jury in a criminal case neces-
sarily implies at the very least that the evidence developed against a
defendant shall come from the witness stand in a public courtroom
where there is full judicial protection of a defendant's right of con-
frontation, of cross-examination, and of counsel." Turner, 379 U.S. at
472-73.2 Consequently, just as when a jury is given an improper rea-
sonable doubt instruction, when a verdict is not based solely on evi-
dence presented at trial, "there has been no jury verdict within the
meaning of the Sixth Amendment" and so "no object . . . upon which
harmless error scrutiny can operate." Sullivan, 508 U.S. at 280. The
most an appellate court can conclude in the case at hand is that a jury
would surely have found the defendant guilty based on the evidence
presented at trial. A court cannot conclude anything about the jury's
actual finding of guilt, because that finding was based to some
unknown extent on evidence that was never presented at trial. Cf. id.
at 279-80.
The majority rightly recognizes that an error should not be deemed
structural unless its presence renders "unfair" every criminal convic-
tion in which the error occurs. See Maj. Op. at 6. Structural error,
however, is not merely a "shorthand" form of harmless error analysis,
rather it involves the broader question of the fundamental fairness of
the trial process. Accordingly, an error that so infects a trial as to ren-
der the process fundamentally unfair is structural, regardless of
whether, looking narrowly at its "actual impact" on the verdict, the
error might sometimes be deemed harmless.
For example, the Supreme Court has held that the denial of the
right to a public trial is structural error, Waller, 467 U.S. at 49 n.9,
because it renders the entire process unfair, not because such an error
can never be "harmless" in terms of its impact on the jury's verdict
_________________________________________________________________
2 Significantly, as noted above, the deprivation of a defendant's right
to a public trial or to counsel is considered structural error. The error in
this case deprived Sherman of the remaining three components the Court
recognized in Turner as essential to the fundamental right to trial by jury.
Surely this error should also be considered structural.
31
-- the harm is to the trial process, not necessarily to the specific ver-
dict reached. Similarly, because a juror's unsupervised and unautho-
rized site visit, in a case in which the physical characteristics of that
site are critical to the case, deprives the defendant of the right to be
convicted solely on the basis of evidence presented at trial, it too ren-
ders the trial process fundamentally unfair. Such an error would seem
to me therefore to be structural error, whether or not one can imagine
factual scenarios in which the information obtained by the juror has
no impact on the jury's deliberations or verdict.
Nor would such a holding require reversal in every case in which
a juror engaged in an unauthorized site visit. The majority convinc-
ingly explains the difficulties of a holding that would lead to this
result. However, the majority has created and then defeated a straw
man. Sherman specifically disavows any request for such a broad rul-
ing. Instead, he maintains that unauthorized site visits amount to con-
stitutional error only in cases in which"significant issues were raised
at trial concerning the physical aspects of the areas visited by the
juror." Brief of Appellant at 21 (quoting Commonwealth v. Price, 344
A.2d 493, 494 (Pa. 1975)).
An analysis that results in finding constitutional error in some cir-
cumstances but not in others is unusual, but not unprecedented.
Indeed, as Sherman points out, the Supreme Court has adopted a simi-
lar approach in examining court orders forbidding criminal defendants
from consulting with counsel. An order preventing a defendant from
consulting with counsel during an overnight recess interferes with his
Sixth Amendment right to counsel, and reversal is required; the error
is not examined for harmlessness and no proof of prejudice is neces-
sary. See Geders v. United States, 425 U.S. 80 (1976). In contrast, an
order preventing a defendant from consulting with counsel briefly
during his testimony is regarded as so de minimis as not to be consti-
tutional error at all. Perry v. Leeke, 488 U.S. 272, 280-84 (1989).
Between these two extremes, there is "a line of constitutional dimen-
sion." Id. at 278-80.
In the same way, unauthorized site visits in cases in which the
physical aspects of the site are not at issue should be regarded as de
minimis -- not constitutional error at all. This approach has much to
32
recommend it. It protects the fundamental right involved here, yet
avoids trivialization of the structural error inquiry.
Because the Supreme Court has never dealt with a case involving
juror's unauthorized site visit -- let alone such a visit in a case, like
this, where the physical features of the site are of critical importance,
no direct precedent prohibits the above approach. However, in those
cases involving what I regard as the most similar constitutional errors
-- unauthorized private contacts with jurors during trial -- the
Supreme Court seems to have applied a harmless error analysis, hold-
ing that such contacts require reversal of a conviction only if the gov-
ernment fails to "establish, after notice to and hearing of the
defendant that such contact was harmless to the defendant." Remmer
v. United States, 347 U.S. 227, 229 (1954) (emphasis added).3 See
also Mattox v. United States, 146 U.S. 140, 150 (1897) ("Private com-
munications, possibly prejudicial, between jurors and third persons
. . . are absolutely forbidden, and invalidate the verdict, at least
unless their harmlessness is made to appear.") (emphasis added).
Both Remmer and Mattox were decided well before 1991, when the
Supreme Court first began analyzing constitutional error in terms of
structural error, which is not subject to harmless error analysis, and
trial error, which is. See Arizona v. Fulminante , 499 U.S. 279 (1991).
Indeed, Remmer and Mattox predate many of the Court's landmark
decisions regarding the constitutional protections due to criminal
_________________________________________________________________
3 The majority characterizes the instant case as "virtually indistinguish-
able" from both Remmer and Smith v. Phillips, 455 U.S. 209 (1982). I
agree that the error involved in this case is very similar to the error in
Remmer. However, as this court recognized in Stockton v. Virginia, 852
F.2d 740, 744 (4th Cir. 1988), cert. denied, 489 U.S. 1071 (1989),
Phillips involves clearly distinguishable concerns. As we explained in
Stockton, when, as in Phillips, "some external manifestation of a juror's
predisposition subsequently calls the juror's impartiality into question,
the defendant is afforded the opportunity to establish the juror's actual
bias." 852 F.2d at 744 (emphasis added). On the other hand, where, as
in the case at hand and Remmer, "the danger is not one of juror impair-
ment or predisposition, but rather the effect of an extraneous communi-
cation upon the deliberative process of the jury, the defendant's right to
an impartial jury requires that the government bear the burden of estab-
lishing the nonprejudicial character of the contact." Id. (emphasis added).
33
defendants. E.g., Edwards v. Arizona, 451 U.S. 477 (1981); Miranda
v. Arizona, 384 U.S. 436 (1966); Escobedo v. Illinois, 378 U.S. 478
(1964). Consequently, if Remmer or Mattox were decided today, the
Court might well regard the errors in them as structural.
Alternatively, the Court might conclude that even if harmless error
analysis applies to unauthorized contacts with jurors, a juror's uns-
upervised and unauthorized visit to examine for himself the disputed
physical aspects of a site presents a more fundamental problem merit-
ing treatment as structural error. A juror's private fact-finding mis-
sion, which results in new facts being presented to the jury without
the benefit of cross-examination by (or even the knowledge of) the
defendant, certainly presents more serious Confrontation Clause prob-
lems than juror contacts having nothing to do with the facts of the
case. Thus, when the Supreme Court is presented with an appropriate
case, it may well conclude, as my dissenting colleagues do, that the
error involved here is indeed structural.
However, in view of Remmer and Mattox , the Supreme Court's
reluctance to classify errors as structural, and the decisions of this
court extending Remmer to cases involving a jury's exposure to unad-
mitted evidence, see United States v. Barnes, 747 F.2d 246, 251 (4th
Cir. 1984); see also Hinkle v. City of Clarksburg, 81 F.3d 416, 427
(4th Cir. 1996) (following Barnes without citing Remmer), I believe
that I am bound to treat the error here as trial error, subject to harm-
less error analysis. I therefore turn to that analysis.
II.
On collateral review, we may set aside a conviction only if con-
vinced that the asserted error "``had substantial and injurious effect or
influence in determining the jury's verdict.'" Brecht v. Abrahamson,
507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946)).4 If we find the issue so close as to leave us "in
_________________________________________________________________
4 Like the majority, I believe that our decision in Smith v. Dixon, 14
F.3d 956 (4th Cir.) (en banc), cert. denied, ___ U.S. ___, 115 S. Ct. 129
(1994), established that the Brecht standard applies on collateral review,
even when the state court has failed to find an error harmless beyond a
reasonable doubt.
34
virtual equipoise as to the harmlessness of the error," we must resolve
the question in favor of the petitioner and grant habeas relief. O'Neal
v. McAninch, ___ U.S. ___, 115 S. Ct. 992, 994 (1995).
In the instant case, the state trial court held a hearing on Sherman's
motion for a new trial, and juror Miller was called to testify on Sher-
man's behalf. On direct examination, the juror testified that two or
three days into the trial, he and his wife drove to Gibson Manor,
"looking for [the] tree that was so involved in the case." He stated that
he did, in fact, find the tree as well as the house in which the murders
occurred. Apparently wary of violating the secrecy of the jury's delib-
erations, and consistent with the State's objections, the court did not
permit Sherman's counsel to ask the juror why he visited the site.
On cross-examination by the State, the juror testified that by the
time he visited the site, he had already seen (in court) the videotape
of the outside of the Sherman house, but was not sure if he had yet
seen the aerial photographs of the neighborhood. When asked
whether, at the time of his site visit, several photographs of the tree
had been introduced, the juror responded, "Yes, the tree had been in
question, and that's one of the reasons I went there." Finally, the State
asked the juror whether other photographs of the scene had been
introduced by the time he made his visit, to which he responded, "I'm
not sure, sir. I'm not sure what sequence -- the reason why I went
there was so I could see the tree that was so much in question." The
State made no further inquiry into the facts and circumstances sur-
rounding the juror's site visit.
All told, the record regarding the asserted error provides the fol-
lowing information:
(1) Two or three days into the trial, the juror drove to the
neighborhood in which the murders occurred, looking for
the tree in which the murder weapon was found.
(2) The juror saw the Sherman house and the tree.
(3) This visit occurred after a videotape of the outside of
the Sherman house was played for the jury, and after the
jury saw several photographs of the tree.
35
(4) The juror's stated purpose for this site visit was to "see
the tree that was so much in question."
To this day, no details of the juror's site visit are known. We do not
know, nor did the state trial court know, for example, the length of
the juror's site visit; how close he came to the tree; whether he got
out of his car and walked to the tree or simply drove past; whether
he performed "experiments" based on the testimony about the tree or
merely looked at it to ascertain its size and location. Despite the spar-
sity of the record, the state trial court determined that Sherman suf-
fered no prejudice as a result of the juror's site visit.5 I cannot agree.
Based on the extremely limited information before us regarding the
juror's site visit, it is simply impossible to ascertain whether and to
what extent Sherman was prejudiced by the visit. The juror's testi-
mony is consistent with a visit in which he simply drove through Gib-
son Manor and looked at the house and the tree as he drove by. Such
a visit, if properly subject to harmless error analysis, might well be
found to be harmless.6
However, the juror's testimony would be equally consistent with a
scenario in which, dissatisfied with the evidence presented at trial, he
set out to conduct his own investigation, including taking measure-
ments of the tree and its distance from the house and attempting to
hide items in the tree in the manner in which the murder weapon was
found. Such a visit would certainly be prejudicial. Contrary to the
majority's suggestion, Maj. Op. at 13, it would not be merely "cumu-
lative" of the other evidence at trial, as the proper interpretation of
that evidence was disputed. For example, perhaps confused by the
parties' conflicting interpretations of Officer Hopkins' testimony, the
_________________________________________________________________
5 In my view, the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214 (1996), does not apply retroac-
tively to cases like the one at hand. See Landgraf v. USI Films Prods.,
___ U.S. ___, 114 S. Ct. 1483, 1505 (1994).
6 As noted above, this does not preclude characterization of that error
as structural. The harmless error inquiry focuses on the impact of an
error on the verdict rendered. Structural error is concerned with the integ-
rity and fairness of the trial process, not the impact of a particular error
on the actual verdict.
36
juror sought to resolve for himself whether someone of Sherman's
height and build could have wedged the gun in the tree in the manner
in which it was found. Alternatively, perhaps the juror wanted to test
whether it was possible to hide something in the tree without getting
sap and pine needles on one's clothing, or wanted to see whether it
made sense for Sherman to have stopped at the tree en route to his
grandparents' house. Each of these scenarios would result in the dis-
covery of new, rather than cumulative, information.
The State of Maryland seems to concede, as it must, that the record
in this case with respect to the juror's site visit leaves much to be
desired. The State argues, however, that "Sherman had the burden to
show that an error warranting new trial relief had occurred," Brief of
Appellees at 28, and thus should bear the consequences of the insuffi-
cient record. This argument is foreclosed by Remmer, which man-
dates that any private communication with a juror about the matter
pending before the jury is "presumptively prejudicial," and the
government bears the heavy burden of rebutting that presumption. 347
U.S. at 229. Moreover, we have recognized as recently as a few
months ago, in a case that the majority neither overrules nor acknowl-
edges, that this presumption governs when jurors consider evidence
not admitted at trial. See Hinkle, 81 F.3d at 427. See also United
States v. Brooks, 957 F.2d 1138, 1142 (4th Cir.), cert. denied, 505
U.S. 1228 (1992); United States v. Greene, 834 F.2d 86, 88 (4th Cir.
1987); Barnes, 747 F.2d at 250-51. Accordingly, while Sherman bore
the initial burden of proving that the site visit occurred,7 once that fact
was established, the burden shifted to the State to"demonstrat[e] the
absence of prejudice." Stockton, 852 F.2d at 743.
_________________________________________________________________
7 Remmer requires that the improper jury contact be "about the matter
pending before the jury." 347 U.S. at 229. Stockton likewise requires that
the defendant establish that the contact "was of such a character as to rea-
sonably draw into question the integrity of the verdict." 852 F.2d at 743.
Our cases applying the Remmer presumption where the jury has been
exposed to evidence not admitted at trial suggest that, in such cases, the
defendant need only establish that the jury has, in fact, been exposed to
the unadmitted evidence to trigger the presumption. See, e.g., Hinkle, 81
F.3d at 427. In any event, in this case, by establishing that a juror had
engaged in an unauthorized site visit and that the physical characteristics
of that site were of critical importance, Sherman satisfied the additional
requirements described in Remmer and Stockton.
37
Concededly, due to the significant restrictions the rules of evidence
place on questioning of jurors, it would have been difficult, if not
impossible, for the State to prove by direct evidence that the juror's
site visit did not prejudice Sherman. We have suggested that "the state
may rebut the presumption of prejudice through whatever circumstan-
tial evidence is available, including juror testimony on the facts and
circumstances surrounding the extraneous communication [or receipt
of unadmitted evidence]." Id. at 744. Ultimately, however, because
"[t]he right to an impartial jury belongs to the defendant," the risk of
being unable to prove the impact of an improper jury contact or a
jury's exposure to unadmitted evidence is properly borne by the State.
Id. at 743-44. In this case, the State simply failed to meet its burden.
The only circumstantial evidence the State presented to meet its
heavy burden was the juror's testimony that at the time he made the
visit, the jury had already seen a videotape and some photographs of
the area in question. While the State argues (and a majority of this
court finds) that the site visit was merely cumulative of the other evi-
dence presented at trial regarding the tree, the juror's testimony in
response to the State's questions indicates otherwise. When asked
whether he had seen the photographs of the tree prior to his visit, the
juror responded that that was why he went to the site -- because he
wanted to see the tree "in question." This implies a causal relationship
between the photographs and the visit; the juror was not satisfied with
the photographs and visited the site to obtain additional information
about the tree. As my dissenting colleagues note, the district court,
which nonetheless found the site visit to be harmless error, remarked
that the state's close-up photograph of the tree"does not show me
anything on its face."
The majority makes much of the "powerful array of evidence pres-
ented at trial" that supports the jury's guilty verdict. This miscon-
ceives the appropriate harmless error inquiry, which focuses not on
the sufficiency of the evidence absent the error, but rather on the
impact of the error on the jury's verdict. See Sullivan, 508 U.S. at 279
("Harmless error review looks . . . to the basis on which the jury
actually rested its verdict. . . . not [to] whether, in a trial that occurred
without the error, a guilty verdict would surely have been rendered.")
(internal citation and quotation omitted). Accordingly, the majority's
characterization of Sherman's argument as merely a"roundabout"
38
attack on the sufficiency of the evidence against him is off the mark.
Sherman does not challenge the sufficiency of the evidence presented
at trial, he challenges the fairness of the trial and "the basis on which
the jury actually rested its verdict." Id.
In summary, the record in this case reveals that a juror in Sher-
man's capital murder trial made an unsupervised and unauthorized
visit to a site whose physical characteristics were disputed and critical
to the State's case. Unfortunately, the record does not reveal much
else about that visit. At the post-trial hearing, the burden was on the
State to rebut the presumption of prejudice raised by the juror's site
visit, and the State must therefore bear the consequences of the spar-
sity of the record. Given the lack of detail as to the juror's site visit
and the wide range of conduct that his testimony might describe, the
majority's conclusion that the site visit was harmless is tantamount to
a conclusion that a juror's unauthorized site visit can never be preju-
dicial error. I cannot agree with this conclusion. While some of the
possibilities encompassed by the juror's ambiguous testimony might
be harmless, many of them would certainly be prejudicial.
Without any evidence as to the details of the juror's site visit, I find
myself "in virtual equipoise as to the harmlessness of the error."
O'Neal, 115 S. Ct. at 992. My "grave doubt as to the harmlessness
of [the] error" requires me to resolve the issue in Sherman's favor. Id.
at 999. The "obviousness" of Sherman's guilt to a reviewing court, or
to the public for that matter, is irrelevant absent a proper jury verdict.
I would, therefore, grant the writ of habeas corpus, so that Sherman
could receive a new trial in which the jury returns a proper verdict,
based solely on the evidence presented at trial. The Constitution
requires nothing less.
39