William Barnes v. Edward Thomas ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-0005
WILLIAM LEROY BARNES,
Petitioner - Appellant,
v.
EDWARD THOMAS, Warden, Central Prison, Raleigh, North Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:08-cv-00271-TDS-JEP)
Argued: May 8, 2019 Decided: September 12, 2019
Before AGEE, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Floyd wrote the opinion in which
Judge Thacker joined. Judge Agee wrote a separate dissenting opinion.
ARGUED: M. Gordon Widenhouse, Jr., RUDOLF WIDENHOUSE, Chapel Hill, North
Carolina, for Appellant. Jonathan Porter Babb, Sr., NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF:
George B. Currin, Asheville, North Carolina, for Appellant. Joshua H. Stein, Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellee.
FLOYD, Circuit Judge:
More than 20 years ago, Petitioner William Leroy Barnes was convicted of murder
in North Carolina state court and sentenced to death. Following the trial, Barnes sought to
overturn his death sentence, claiming that during sentencing deliberations, a juror
improperly consulted with her pastor about whether she could vote to impose the death
penalty without running afoul of her religious beliefs. She then relayed his guidance to the
entire jury. Barnes’ juror misconduct claim made its way through the North Carolina state
courts, culminating in a final denial in state post-conviction proceedings. On Barnes’ first
federal habeas appeal, we held that the post-conviction court violated clearly established
federal law by failing to afford Barnes a presumption of prejudice and an evidentiary
hearing on his juror misconduct claim, as required by Remmer v. United States, 347 U.S.
227, 229 (1954). We remanded for an evidentiary hearing to determine if this error resulted
in actual prejudice, thus warranting habeas relief. We now hold that it did.
I.
William Leroy Barnes, an inmate on North Carolina’s death row, appeals the district
court’s second denial of his petition for writ of habeas corpus against Edward Thomas,
Warden of the Central Prison in Raleigh, North Carolina (hereinafter the “State”). In 1994,
Barnes was convicted of first-degree murder in North Carolina state court for the deaths of
B.P. and Ruby Tutterow. After Barnes was found guilty, the trial proceeded to the
sentencing phase, where the jury was charged with determining whether Barnes and his
two codefendants would be sentenced to death or life imprisonment. During closing
arguments of the sentencing phase, an attorney representing Frank Chambers, one of
2
Barnes’ codefendants, made religiously charged statements about a juror’s choice to
impose the death sentence:
Surely, one among you believes in God, the father, the son, the
Holy Ghost, the teachings of Jesus Christ. And if you do, you
know that Frank Chambers will have two judgment days. The
one he’s got today, where you sit as his judge, and you
determine what happens with his earthly life. . . . [I]f you are
a true believer, you know that he will have a second judgment
day. . . . On that day, he will be judged not by the law of man,
but by a higher law, the laws of God. . . . If you’re a true
believer and you believe that Frank Chambers will have a
second judgment day, then we know that all of us will too. All
of us will stand in judgment one day. And what words is it that
a true believer wants to hear? Well done, my good and faithful
servant. You have done good things with your life. You have
done good deeds. Enter into the Kingdom of Heaven. Isn’t
that what a true believer wants to hear? Or does a true believer
want to explain to God, yes, I did violate one of your
commandments. Yes, I know they are not the ten suggestions.
They are the ten commandments. I know it says, Thou shalt
not kill, but I did it because the laws of man said I could. You
can never justify violating a law of God by saying the laws of
man allowed it. If there is a higher God and a higher law, I
would say not. To be placed in the predicament that the State
has asked you to place yourself in, is just that. To explain when
your soul is at stake. Yes, I know the three that I killed were
three creatures of yours, God. And that you made them in your
likeness. I know you love us all, but I killed them because the
State of North Carolina said I could. Who wants to be placed
in that position? I hope none of us. And may God have mercy
on us all.
J.A. 1530–33.
These statements were presented with no interjection from the prosecution or the
trial court. The next day, the jury recommended that Barnes be sentenced to death.
Immediately after the jury returned its sentencing recommendation and exited the
3
courtroom, Barnes’ attorney alleged to the trial court that one of the jurors had met with
her pastor to discuss the death penalty during sentencing deliberations and had relayed the
pastor’s counsel to the other jurors. The trial court denied Barnes’ request to inquire further
into the matter, and Barnes appealed to the Supreme Court of North Carolina. The state
supreme court denied relief, holding that Barnes had not proven that the alleged contact
between the juror and her pastor prejudiced Barnes or denied him the right to an impartial
jury.
In 1999, Barnes sought state post-conviction relief by filing a Motion for
Appropriate Relief (MAR) in Rowan County Superior Court (the “MAR Court”), in which
he reasserted his juror misconduct claim, among others. With the motion, Barnes presented
new information to further corroborate his juror misconduct claim. For example, Barnes
introduced a summary of a 1995 interview his direct appeal team conducted with the juror
accused of misconduct, Hollie Jordan (hereinafter “Juror Jordan”). Juror Jordan signed the
summary and acknowledged that it was an accurate representation of the interview.
According to the summary, Juror Jordan was offended by the religiously charged closing
arguments, and although she “‘did not accept the attorney’s argument,’ she did notice ‘that
another juror, a female, seemed visibly upset.’” Barnes v. Joyner, 751 F.3d 229, 235 (4th
Cir. 2014) (hereinafter Barnes I) (quoting interview summary). “‘To remedy the effect of
the argument, [Juror] Jordan brought a Bible from home into the jury deliberation room’
and read a passage to all the jurors, which provided ‘that it is the duty of Christians to abide
by the laws of the state.’” Id. (quoting interview summary).
4
The MAR Court summarily denied Barnes’ juror misconduct claim as “procedurally
barred and without merit” because the issue had been previously addressed and rejected by
the Supreme Court of North Carolina on direct appeal. 1 J.A. 1883. The Supreme Court of
North Carolina denied Barnes’ request for certiorari review.
In 2008, Barnes filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in which he again raised his juror misconduct claim. Barnes argued that under
Remmer v. United States, 347 U.S. 227 (1954), he was entitled to a presumption of
prejudice and an evidentiary hearing upon presentation of a credible allegation of juror
misconduct. A magistrate judge recommended that his juror misconduct claim be denied.
After concluding that Barnes’ claims did not require a hearing, the district court adopted
the magistrate judge’s recommendation and denied Barnes’ habeas petition. Barnes then
brought his first appeal.
On our first review of this case, we concluded that the MAR Court’s disposal of
Barnes’ juror misconduct claim amounted to an unreasonable application of Remmer v.
United States, 347 U.S. at 229, which “clearly established not only a presumption of
prejudice, but also a defendant’s entitlement to an evidentiary hearing, when the defendant
presents a credible allegation of communications or contact between a third party and a
juror concerning the matter pending before the jury.” Barnes I, 751 F.3d at 242. We
1
N.C. Gen. Stat. § 15A-1419(a)(2) provides that a claim is procedurally barred for
purposes of MAR review if, among other things, the issue “was previously determined on
the merits upon an appeal from the judgment . . . in the courts of this State or a federal
court.” However, this provision is not a procedural bar for purposes of federal habeas
review. Brown v. Lee, 319 F.3d 162, 170 n.2 (4th Cir. 2003).
5
distinguished Barnes’ allegations of juror misconduct from cases in which we have held
that an internal juror influence—i.e., a juror’s own bias or communication with fellow
jurors—does not implicate a defendant’s Sixth Amendment right to an impartial jury. Id.
at 245–46; see also Robinson v. Polk, 438 F.3d 350, 361–66 (4th Cir. 2006) (holding that
juror’s request for bailiff to bring Bible into jury room was not an external influence raising
Sixth Amendment concerns because bailiff did not “instruct[] the jury to consult the Bible”
or do “anything other than simply provide the Bible upon the juror’s request”); Stockton v.
Com. Of Va., 852 F.2d 740, 744 (4th Cir. 1988) (distinguishing between internal “juror
impairment or predisposition” and the more serious danger of “extraneous
communication”). Because Barnes credibly alleged an improper external influence on the
jury, we held, the MAR Court erred in failing to apply a presumption of prejudice and
afford Barnes a hearing. Barnes I, 751 F.3d at 247–48. However, because habeas relief is
only warranted if the petitioner suffered actual prejudice as a result of the constitutional
error, we remanded the case for the district court to conduct an evidentiary hearing “solely
on the issue of whether the state court’s failure to apply the Remmer presumption and
failure to investigate Juror Jordan’s contact with Pastor Lomax had a substantial and
injurious effect or influence on the jury’s verdict.” Id. at 252.
On remand, the parties held an evidentiary hearing before a magistrate judge.
Barnes called four witnesses: Janine Fodor, Hollie Jordan, Ardith Peacock, and Leah
Weddington. The State called no witnesses.
During the evidentiary hearing, the parties raised several objections to certain
testimony regarding the jurors’ mental thought processes under Federal Rule of Evidence
6
606. The magistrate judge acknowledged that there were “gray areas,” or confusion, as to
how Rule 606 should apply to the hearing and allowed the State to maintain a standing
objection. J.A. 2260. Even with this standing objection, however, the State made several
Rule 606 objections throughout the hearing and engaged in extended colloquy with the
magistrate judge on how to resolve the issue. See, e.g., J.A. 2283–90. The magistrate
judge did not exclude any testimony during the hearing, itself, but gave the parties an
opportunity to further address the issue in their post-hearing briefing.
Barnes’ first witness, attorney Janine Fodor, represented Barnes in his direct appeal.
Fodor testified that while reviewing the trial record, she flagged Barnes’ juror misconduct
claim as an issue to raise on direct appeal. She then conducted interviews of some members
of the jury and “asked about whether or not anybody remembered a juror contacting
somebody or bringing a Bible into the jury room.” J.A. 2255. Fodor testified that she
interviewed Juror Jordan, who confirmed that she had contacted her pastor during
sentencing deliberations and shared his thoughts with the jury.
Barnes next called Hollie Jordan. Juror Jordan testified that when she was a juror
for Barnes’ capital murder trial, she attended Old Country Baptist Church where Tom
Lomax was the pastor. She testified that she attended church “[e]very time the doors were
open” and considered Pastor Lomax a spiritual guide. J.A. 2267–68. According to Juror
Jordan, the closing arguments of Chambers’ attorney “stood out” to her because he stated
that “if [defendants] got the death sentence that [the jurors] would burn in hell.” J.A. 2269.
Juror Jordan testified that she “didn’t know the Bible all that well then” and sought further
counsel from Pastor Lomax on the first night of jury deliberations, before the jury had
7
reached a sentence. J.A. 2269. Juror Jordan said she spoke with Pastor Lomax for “a
couple hours probably,” but only discussed the case with him for a “few minutes.” J.A.
2270–71. She told him “how horrific the pictures [of the crime scene] were,” J.A. 2270,
and “asked him if we gave [defendants] the death sentence would we burn in hell.” J.A.
2269. Pastor Lomax answered no and told her the jurors “had to live by the laws of the
land.” J.A. 2271. Juror Jordan testified that Pastor Lomax pointed her to “some scriptures
in the Bible . . . that explained everything.” J.A. 2271. She testified that although she “was
worried” that the jurors were “going to die because [they were] killing [the defendants],”
she felt better after speaking with Pastor Lomax. J.A. 2272. Juror Jordan testified that she
returned to the jury room the following day and spoke with her fellow jurors for 15 to 30
minutes about her conversation with Pastor Lomax.
In response to a question posed by Barnes’ counsel, Juror Jordan also noted that
when she spoke with Pastor Lomax, she had already “made up in [her] mind” on the
sentence she was going to vote for; she “just wanted to know if [she] was going to burn in
hell for it.” J.A. 2272. Barnes moved to strike this statement under Federal Rule of
Evidence 606. In its report and recommendation, the magistrate judge agreed with Barnes
that the “juror’s mental thought processes should not be considered” and did not consider
this response. J.A. 2390. The district court likewise did not consider the statement.
Barnes next called Ardith Peacock (hereinafter “Juror Peacock”), another juror in
Barnes’ trial. Juror Peacock testified that on the second day of sentencing deliberations,
Juror Jordan brought a Bible into the jury room and read several passages aloud. While
she did not recall the specific passages that Juror Jordan read, she remembered that one
8
dealt with an “eye for an eye and tooth for a tooth.” J.A. 2281. Juror Peacock testified that
Juror Jordan did not say, specifically, whether the verses were intended to advocate for or
against the death penalty. But she agreed with Barnes’ counsel’s statement that Juror
Jordan brought the passages to the jury’s attention in order to rebut the religious statements
made during the sentencing phase of trial.
Barnes next called Leah Weddington (hereinafter “Juror Weddington”), another
juror at Barnes’ trial. Juror Weddington testified that she recalled a female juror reading
passages from a Bible in the jury room but did not recall the name of the juror or the specific
passages that were read. When asked what may have prompted the juror to read the verses
in the jury room, Juror Weddington responded “I guess she was trying to convince someone
to—it was okay to give him the death penalty.” J.A. 2295.
Following the evidentiary hearing, the magistrate judge issued a report and
recommendation concluding that juror misconduct did not have a substantial and injurious
effect on the outcome of Barnes’ case. With regard to the Rule 606 issue, as noted, the
magistrate judge excluded Juror Jordan’s testimony that she would have voted to impose
the death penalty regardless of Pastor Lomax’s advice. However, the magistrate judge also
noted that the State “did not address [its Rule 606 objections] with any additional authority
or specificity” in its post-hearing briefing and the testimony to which the State objected
“appear[ed] to fall within the exceptions in Fed. R. Evid. 606(b)(2)(A) and (B).” J.A. 2390.
The magistrate judge therefore overruled the State’s Rule 606 objections. The district court
held that the magistrate judge did not err in these evidentiary rulings.
9
In concluding that Barnes had not shown actual prejudice, the magistrate judge
reasoned that there was no evidence Pastor Lomax had expressed his views on the death
penalty or attempted to persuade Juror Jordan to vote for or against it. The magistrate judge
reasoned that evidence did not indicate that Juror Jordan explicitly told the other jurors
whether the passages she read were for or against imposing the death penalty. J.A. 2397
(“[T]he passages were related to Pastor Lomax’s limited statement to Juror Jordan that the
jurors would not ‘burn in hell’ and that they should follow the law.”). Moreover, the
magistrate judge noted, aggravating factors against Barnes likely factored more heavily
into the jury’s decision than Juror Jordan’s communication with Pastor Lomax. The district
court once again adopted the magistrate judge’s report and recommendation and denied
habeas relief. Barnes again appeals to this Court.
II.
We review the district court’s denial of Barnes’ habeas petition de novo. See
Bauberger v. Haynes, 632 F.3d 100, 103 (4th Cir. 2011).
III.
A.
We concluded in Barnes I that the MAR Court’s failure to properly apply the
Remmer presumption and allow Barnes a hearing “involved an unreasonable application
of clearly established Federal law, as determined by the Supreme Court of the United
States.” Barnes I, 751 F.3d at 238 (quoting 28 U.S.C. § 2254(d)(1)). However, “we are
10
not permitted to grant habeas relief unless we are convinced that the error had a substantial
and injurious effect”—otherwise known as actual prejudice—on the jury’s sentence
recommendation. 2 See Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002) (internal
quotation marks omitted). “[A] state court’s failure to apply the [Remmer] presumption
only results in actual prejudice if the jury’s verdict was tainted” by the external
communication. Barnes I, 751 F.3d at 253 (quoting Hall v. Zenk, 692 F.3d 793, 805 (7th
Cir. 2012)). Therefore, while the constitutional error in this case lies with the MAR Court’s
failure to properly apply Remmer, in assessing actual prejudice, we look to the effect of
Juror Jordan’s external communication on the jury’s sentencing decision.
The substantial and injurious effect standard used to determine harmlessness on
habeas appeal comes from the Supreme Court’s decision in Kotteakos v. United States, 328
U.S. 750 (1946). 3 That case instructs us to look to “what effect the error had or reasonably
may be taken to have had upon the jury’s decision.” Id. at 764. “If, when all is said and
done, the conviction is sure that the error did not influence the jury, or had but very slight
effect, the verdict and the judgment should stand.” Id. However, “[i]f the federal court is
‘in grave doubt’ about whether the trial error had a ‘substantial and injurious effect or
2
As we noted in Barnes I, petitioners are not entitled to the Remmer presumption
of prejudice when proving a substantial and injurious effect on habeas appeal. See Lawson
677 F.3d 629, 644 (4th Cir. 2012) (citing Vigil v. Zavaras, 298 F.3d 935, 941 n.6 (10th Cir.
2002)).
3
The Kotteakos standard is a “less onerous harmless-error standard” than the
requirement on direct appeal that an error be proven “harmless beyond a reasonable doubt.”
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (holding that the Kotteakos standard
applies to harmless error review on habeas appeal).
11
influence’ on the verdict and therefore finds itself ‘in virtual equipoise’ about the issue, the
error is not harmless.” Lawlor v. Zook, 909 F.3d 614, 634 (4th Cir. 2018) (holding that
state court’s failure to admit mitigating evidence regarding defendant’s ability to adjust to
prison was not harmless when the jury expressed confusion over whether and how it could
consider such evidence).
B.
After reviewing the record, which now includes the evidentiary hearing to which
Barnes was legally entitled, we hold that Juror Jordan’s external communication was not
harmless. Accordingly, we reverse and remand the district court’s denial of habeas relief.
We note at the outset that our inquiry into whether Barnes has met his burden of
showing actual prejudice under the Kotteakos standard is frustrated to some extent by the
application of Federal Rule of Evidence 606 in this context. That rule provides that a juror
may not testify about “any statement made or incident that occurred during the jury’s
deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s
mental processes concerning the verdict or indictment.” Fed. R. Evid. 606(b)(1). While,
under an exception to the rule, a juror may testify about whether “extraneous prejudicial
information was improperly brought to the jury’s attention” or any “outside influence was
improperly brought to bear upon any juror,” Fed. R. Evid. 606(b)(2), “juror testimony
concerning the effect of the outside communication on the minds of jurors is inadmissible,”
Stockton v. Com. Of Va., 852 F.2d 740, 744 (4th Cir. 1988) (emphasis added).
Rule 606 thus presents unique difficulties in the context of juror misconduct claims.
See Stockton, 852 F.2d at 750 (Widener, J., concurring in part and dissenting in part) (“To
12
hold, as we do, that any extraneous communication to a juror is presumably prejudicial
unless innocuous, and then prevent the State from proving lack of prejudice by the very
juror involved, very nearly places the State in a box from which escape is difficult if not
impossible.”); Sherman v. Smith, 89 F.3d 1134, 1144 (4th Cir. 1996) (Murnaghan, J.,
dissenting) (noting that because of a “sparse inquiry into [a juror’s misconduct] at a post-
trial hearing” due to Rule 606, “we do not have all of the facts concerning the juror’s”
misconduct). For example, Barnes was tasked with proving that Juror Jordan’s conduct
affected the jury’s decision, but he was prohibited from directly asking any of the jurors
about this effect. This paradox led to confusion during the evidentiary hearing and lengthy
colloquies between the parties and the magistrate judge as to the propriety of certain lines
of questioning. Meanwhile, the State argues that the district court erred in using Rule 606
to exclude Juror Jordan’s testimony stating that she already decided to vote for the death
penalty before consulting with Pastor Lomax.
Given how Rule 606 limits the presentation of evidence in these circumstances, it is
especially important for us to view the record practically and holistically when considering
the effect that a juror’s misconduct “reasonably may be taken to have had upon the jury’s
decision.” Kotteakos, 328 U.S. at 764. Doing so in this case leaves us with “‘grave doubt’
about whether the trial error had a ‘substantial and injurious effect or influence’ on the
[sentence].” Lawlor, 909 F.3d at 634.
Juror Jordan, a devoutly religious individual, was struck by an attorney’s assertion
that she would go to hell if she voted to impose the death penalty. She approached her
pastor and spiritual guide in the middle of jury deliberations to obtain clarity on that very
13
subject, and he assured her that, contrary to the attorney’s arguments, her religious beliefs
permitted her to vote for the death penalty. Aware that other jurors had been troubled by
the attorney’s remarks, she then spent up to 30 minutes discussing her pastor’s counsel
with the entire jury and reading several Bible verses that he had suggested out loud. Other
members of the jury testified that Juror Jordan shared the biblical passages to rebut the
attorney’s religious statements and “convince someone . . . it was ok” to impose the death
penalty. 4 J.A. 2295. While Rule 606 deprives us the benefit of “smoking gun” testimony, 5
the natural ramifications of this series of events are apparent. Kotteakos does not require
us to ignore them. 6
4
The dissent argues that Juror Weddington’s statement that she “guess[ed] [Juror
Jordan] was trying to convince someone . . . it was okay to give him the death penalty,”
J.A. 2295, is speculative and therefore useless to our analysis. But we do not think that the
word “guess” voids Juror Weddington’s testimony of any value, especially when her
testimony aligns with other evidence indicating that Juror Jordan relayed Pastor Lomax’s
message to the jury in order to refute the religious statements made during closing
arguments. Juror Peacock agreed that it would “be fair to say that [Juror Jordan] brought
the Bible passages in to rebut Chambers’ attorney’s argument.” J.A. 2292. And the 1995
interview of Juror Jordan conducted by Barnes’ direct appeal team indicated that Juror
Jordan sought Pastor Lomax’s counsel and relayed it to the jury after noticing that another
juror was visibly upset by the closing arguments. Because Barnes’ evidentiary hearing
came more than 20 years after he requested and was entitled to it, we are left to grapple
with decades-old recollections of only a few jurors. We do not rely on Juror Weddington’s
testimony as isolated evidence of prejudicial effect, but as part of a larger and necessarily
circumstantial body of evidence that speaks to the substance of Juror Jordan’s
communication and its effect on the jury.
5
See, e.g., Fullwood, 290 F.3d at 679–80 (holding that under Rule 606, habeas
petitioner could not rely on an affidavit stating that external influence caused a juror to vote
for the death penalty).
6
In analyzing the effects that a private conversation reasonably may be taken to
have had on the jury’s sentencing decision, we are mindful of the profound distrust with
(Continued)
14
The State urges us to consider Juror Jordan’s testimony that she had already decided
to vote for the death penalty before consulting with Pastor Lomax and only consulted him
to determine whether she would “burn in hell” for that decision. J.A. 2272. Because this
testimony was elicited by Barnes’ attorney, the State argues the testimony is admissible
under the “invited error” doctrine. But even if we were to accept the State’s argument, our
conclusion would not change. Juror Jordan shared Pastor Lomax’s counsel with the other
jurors in an apparent effort to “convince someone . . . it was ok” to vote for the death
penalty. J.A. 2295. And taking Juror Jordan at her word that she had already made up her
mind, her testimony necessarily indicates that the only reason to bring Pastor Lomax’s
views into the jury room was to convince the other jurors to impose the death penalty. In
other words, Juror Jordan’s state of mind is not, alone, dispositive, and we may nonetheless
reasonably conclude that Pastor Lomax’s external influence affected the jury’s decision.
Our dissenting colleague argues that Pastor Lomax’s communication with Juror
Jordan was neutral as to the death penalty and had no bearing on the jury’s ultimate
decision. Evidence does not indicate, the dissent argues, that the pastor provided a direct
which courts regard an extraneous influence on any juror. See, e.g., Turner v.
Louisiana, 379 U.S. 466, 473–74 (1965) (concluding that defendant suffered prejudice
from officers’ association with jurors in their charge during a case for which the officers
were key prosecution witnesses and their testimony conflicted with that of the
accused); Parker v. Gladden, 385 U.S. 363, 363–65 (1966) (concluding that bailiff’s
comment to two jurors that the “wicked fellow (petitioner), he is guilty” and that “[i]f there
is anything wrong (in finding petitioner guilty) the Supreme Court will correct it” was not
harmless); Fullwood, 290 F.3d at 681 (noting that, if true, defendant’s allegations of juror
misconduct may constitute actual prejudice when juror’s spouse pressured her throughout
the trial to impose the death penalty). This distrust is only amplified when, as in this case,
extraneous information is offered to the entire jury.
15
recommendation as to Barnes’ sentence or otherwise “expanded the circumstances in
which the jury could lawfully impose the death penalty.” But a prejudicial influence need
not take the form of a third party directly telling jurors how they should vote or introducing
new facts or law for their consideration. See, e.g., Turner v. Louisiana, 379 U.S. 466, 473–
74 (1965) (holding that key prosecution witnesses’ association with jurors throughout trial
was prejudicial even though witnesses did not discuss details of the case with jurors). An
improper external influence may include “an outside influence upon the partiality of the
jury, such as ‘private communication, contact, or tampering . . . with a juror.’” Robinson,
438 F.3d at 363 (citing Remmer, 347 U.S. at 229). Pastor Lomax’s thoughts on whether
the Bible condones the death penalty—when, in urging jurors to vote against that
punishment, an attorney had just insisted that it does not—constitutes an outside influence
on the jury’s partiality.
It is also somewhat specious to suggest that the message conveyed to the jury was
neutral. Viewing the evidence in context, we may readily discern the thrust and objective
of Pastor Lomax’s conversation with Juror Jordan, and hers with the rest of the jury. Pastor
Lomax’s instruction that jurors would not go to hell if they “live[d] by the laws of the
land,” J.A. 2271, served to contradict the statements made by Chambers’ attorney that
while North Carolina law allowed jurors to impose the death penalty, God’s law did not.
It is reasonable to conclude that, especially coming from a figure of religious authority,
Pastor Lomax’s message assuaged reservations about imposing the death penalty that the
attorney’s comments may have instilled. Further, the length of Juror Jordan’s conversation
16
with the jury—up to 30 minutes in less than two full days of deliberation—counsels against
concluding that the discussion had no effect on the jury’s decision.
Finally, we are not convinced that the strength of the State’s case against Barnes
precludes us from holding that Barnes has shown actual prejudice. The focus of the
harmless error inquiry is “not on the sufficiency of the evidence absent the error, but rather
on the impact of the error on the jury’s verdict.” Sherman, 89 F.3d at 1155 (Motz, J.,
concurring in part and dissenting in part); see also Sullivan v. Louisiana, 508 U.S. 275, 279
(1993) (“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.”).
While the harmless error standard on habeas review is stringent, it does not require
virtual certainty to grant relief. The testimony presented at the evidentiary hearing was
sufficient to leave us “in virtual equipoise” as to whether the error had a substantial and
injurious effect on the jury’s decision. Lawlor, 909 F.3d at 634.
IV.
At this stage in the proceedings, Barnes has met his evidentiary burdens as to both
constitutional error and actual prejudice. Therefore, we REVERSE the district court’s
denial of habeas relief and REMAND for further proceedings consistent with this opinion.
17
AGEE, Circuit Judge, dissenting:
To obtain relief under 28 U.S.C. § 2254, a state prisoner must demonstrate actual
prejudice. Barnes asserts that he has satisfied his burden by showing: (1) after a co-
defendants’ counsel argued the jurors would go to hell if they imposed the death penalty,
a juror asked her pastor whether the Bible did indeed direct that course if they decided to
impose the death penalty; (2) the pastor responded “no” and provided her with Bible verses
supporting the view that Christians are called to follow the law of the land; and (3) the juror
shared her pastor’s response and the Bible verses with her fellow jurors during
deliberations. The majority agrees with Barnes and grants him habeas relief based on its
conclusion that this external communication may have “assuaged reservations about
imposing the death penalty that the attorney’s comments may have instilled” and thus
actually prejudiced Barnes’ sentencing. Maj. Op. 16. Because the record does not support
the majority’s conclusion that the external communication actually prejudiced Barnes, I
respectfully dissent.
I.
In 1992, Barnes and two other men robbed and killed B.P. and Ruby Tutterow. In a
joint jury trial held in North Carolina state court, all three men were convicted on two
counts of first-degree murder, two counts of robbery with a dangerous weapon, and one
count of first-degree burglary.
18
During closing arguments in the penalty phase of the trial, counsel for one of
Barnes’ co-defendants urged the jury not to impose the death penalty because although
state law permitted it, God’s law prohibited that penalty. Counsel argued that if the jurors
were “true believer[s],” they knew that one day God would hold them accountable for their
actions just as He would hold the defendants responsible. J.A. 2374. Counsel admonished
the jurors that they would want God to say “Well done, my good and faithful servant. You
have done good things with your life. You have done good deeds. Enter into the Kingdom
of Heaven,” and that they would not want to have to justify their decision to violate his
commandment not to kill “because the laws of man said I could.” J.A. 2374. 1
Following deliberation, the jury recommended the death penalty for Barnes and one
co-defendant—both of whom were identified by the third co-defendant as the individuals
who shot the Tutterows—and mandatory life imprisonment for the third co-defendant. The
trial court imposed the recommended sentences.
Just after the jury announced their sentencing decision, Barnes’ counsel informed
the court that he had discovered that one of the jurors spoke to a member of the clergy
“about a particular question as to the death penalty.” J.A. 1602. After counsel confirmed
that he had no evidence that the juror discussed “the particular facts of this case with
anybody outside the jury,” the trial court judge denied counsel’s request to question the
jury about deliberations. J.A. 1602–03.
1
For reasons not apparent in the record, the prosecution did not object to counsel’s
manipulation of the jury’s religious beliefs and the trial court gave no cautionary or limiting
instruction.
19
Barnes argued on both direct appeal and in his state motion for appropriate relief
that it was error for the trial court not to investigate whether the sentencing deliberations
had been prejudiced by juror contact with a third party. His claims were rejected at both
stages. State v. Barnes, 481 S.E.2d 44, 68 (N.C. 1997); J.A. 1882–83 (MAR court’s denial).
After exhausting his state remedies, Barnes filed a petition under 28 U.S.C. § 2254
arguing that the state court’s adjudication of his juror misconduct claim was contrary to or
unreasonably applied Remmer v. United States, 347 U.S. 227 (1954), which held that “any
private communication, contact, or tampering . . . with a juror during a trial about the matter
pending before the jury is . . . presumptively prejudicial” and warranted an evidentiary
hearing on that issue. Id. at 229. The district court disagreed and denied relief, Barnes v.
Lassiter, No. 1:08–cv–00271, 2013 WL 1314466 (M.D.N.C. Mar. 28, 2013), but on appeal
a majority of this Court agreed with Barnes that the state court misapplied Remmer. Barnes
v. Joyner, 751 F.3d 229 (4th Cir. 2014). As a consequence, the case was remanded to the
district court for a determination of whether actual prejudice resulted from the juror’s third-
party communication.
However, having concluded that Barnes was not entitled to relief under the highly
deferential standard of review federal courts apply under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), I dissented from the majority’s decision. Id. at 253
(Agee, J., dissenting). That dissenting opinion explains why “‘fairminded jurists could
disagree’ as to whether the communication Barnes alleges to have occurred constituted
juror contact with a third party ‘about a matter pending before the jury’” given that it “did
20
not directly bear upon how the juror would vote” in this case. Id. at 266 (Agee, J.,
dissenting). 2
On remand, the district court referred the case to a magistrate judge to conduct the
evidentiary hearing. Barnes called three members of the jury as witnesses: the juror who
spoke with her pastor (Hollie Jordan) and two jurors who recounted aspects of the jury
deliberations (Ardith Peacock and Leah Weddington). 3 In sum, Juror Jordan testified that
she approached her pastor because she was concerned about the co-defendants’ closing
argument that the jurors “would burn in hell” if they imposed the death sentence. J.A. 2269.
Jordan testified that her pastor said the Bible taught that “we had to live by the laws of the
land” and “told [her] some scriptures in the Bible” to support that view, though she could
not recall which verses he used. J.A. 2271. Juror Peacock also recalled that Jordan brought
a Bible into deliberations and read “several passages” from it, adding that she believed one
verse had to do with “the eye for an eye and tooth for a tooth,” but she was not sure what
2
The State petitioned for certiorari in the Supreme Court of the United States. The
Supreme Court denied certiorari, though Justice Thomas wrote an opinion dissenting from
the denial, which Justice Alito joined. Joyner v. Barnes, 135 S. Ct. 2643 (2015) (mem.).
According to Justice Thomas, the state court did not unreasonably apply Supreme Court
precedent in concluding that a question posed by a juror to her minister “about the death
penalty generally [] did not discuss the facts of the case” and “did not concern the matter
pending before the jury” for purposes of applying Remmer. Id. at 2647.
3
Barnes also called as a witness his counsel from the direct appeal, though as the
magistrate judge noted in her report and recommendation, the attorney testified less as a
fact witness than as an additional attorney’s assessment of potential issues for appeal.
Neither party relies on her testimony.
The record also shows that Jordan’s pastor, Tom Lomax, had died prior to the
district court proceedings.
21
verses or books of the Bible were read. J.A. 2281, 2292. Peacock testified that Jordan “did
not state that [the verses she read] were for” or against the death penalty. J.A. 2290, 2292.
Instead, she characterized Jordan’s statements as flowing from “the closing argument . . .
that one of the defense attorneys had” given. J.A. 2290. According to Peacock, Jordan read
the Bible verses to “say[], you know, we are doing our duty” as a rebuttal to the defense
attorney’s contention that the Bible said they would go to hell should they sentence the
defendants to death. J.A. 2291–92. Juror Weddington remembered a female juror reading
from the Bible during deliberations, though she, too, could not recall which verses were
read. Nor did Weddington testify to the context for the Bible reading. When asked “what
might have prompted the juror . . . to bring the Bible into the jury room,” Weddington
replied, “I guess she was trying to convince someone to – it was okay to give [the
defendants] the death penalty.” J.A. 2295.
The magistrate judge’s report and recommendation concluded Barnes’ petition
should be denied, finding any error was harmless “because there was no actual prejudice
to [Barnes] since the jury verdict in this case was not tainted by the third-party contact
between Juror Jordan and” her pastor. J.A. 2395. In particular, the magistrate noted that
the evidence did not show that the juror’s conversation with her pastor touched on the
appropriate punishment for any defendant in this case, but rather centered on whether the
Bible would ever allow a devout juror to impose the death penalty. The magistrate judge
also pointed to the nature of Barnes’ crimes and the jury’s decision to sentence two
defendants to death and one to life imprisonment as confirmation that the verdicts were
22
based on the proper statutory facts before the jury rather than an improper external
influence.
The district court adopted the magistrate judge’s report and recommendation with
only minor modifications, and it denied Barnes’ petition. Barnes v. Thomas, No.
1:08cv271, 2018 WL 3659016 (M.D.N.C. Aug. 2, 2018). The district court characterized
as “speculation” Juror Weddington’s testimony that she “guess[ed]” Jordan’s motive for
reading the Bible during deliberations was to advocate for the death penalty. Id. at *6. It
pointed to the record evidence about the nature of Jordan’s conversation with her pastor
and the information shared with other jurors to support the conclusion that neither the
pastor nor Jordan advocated for one sentence over another, noting that the pastor’s
admonitions to follow the law of the land were precisely what the trial court instructed the
jurors to do. And the district court recounted the strength of the state’s case against Barnes
as further evidence of harmlessness. Despite the court’s confidence in its conclusion, given
that the case involved the death penalty, it granted Barnes a certificate of appealability “on
the issue of whether the extraneous communication between Juror Jordan and [her pastor]
had a ‘substantial and injurious effect or influence in determining the jury’s verdict,’ or
rather was harmless.” Id. at *11.
II.
To be eligible for relief, Barnes must satisfy AEDPA’s strict limits on when a
federal court can grant relief to state prisoners. First, he must exhaust his state court
remedies before being able to raise a claim in federal court. 28 U.S.C. § 2254(b)(1).
23
Second, he must show that the state court’s adjudication of the claim “resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” § 2254(d)(1). And third,
because “most constitutional errors can be harmless,” Arizona v. Fulminante, 499 U.S. 279,
306 (1991), he must demonstrate that the error complained of caused actual prejudice.
Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002).
For the detailed reasons set out in my previous dissenting opinion, I continue to
adhere to the view that Barnes’§ 2254 petition should be denied because it fails at the
second stage of inquiry: the state court’s adjudication of his juror misconduct claim did not
involve an unreasonable application of Remmer. Barnes, 751 F.3d at 253–66 (Agee, J.,
dissenting). But the panel majority has held otherwise, and this appeal centers on whether
Barnes has cleared the third hurdle to obtaining habeas relief by showing that the error was
not harmless: that is, that he suffered actual prejudice.
In the context of § 2254 proceedings, we apply the harmless error standard from
Brecht v. Abrahamson, 507 U.S. 619 (1993), which differs from the way harmlessness is
analyzed in review upon direct appeal. “Because of the threat collateral attacks pose to
finality, comity and federalism, habeas petitions may secure the writ only if the error
actually prejudiced them.” Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011). 4 In
this context, “actual prejudice” means showing that the error “had a substantial and
4
Here, and throughout the opinion, I have omitted internal quotation marks,
alterations, citations unless otherwise noted.
24
injurious effect or influence in determining the jury’s verdict.” Fullwood, 290 F.3d at 679
(quoting Brecht, 507 U.S. at 637). In an “unusual” case, the question of whether a
substantial or injurious effect or influence may be “so evenly balanced” that the Court is in
“grave doubt” as to the harmlessness of an error; in that case, the Court should grant the §
2254 petition. Bauberger, 632 F.3d at 104. But in the ordinary case, the Court can assess
the error and determine whether the defendant has demonstrated actual prejudice. See id.
In the context of errors that occur during the sentencing phase of a death penalty case, the
question before the Court is whether the error had a “substantial and injurious effect or
influence on the jury’s decision to sentence [the defendant] to death.” See Tuggle v.
Netherland, 79 F.3d 1386, 1393 (4th Cir. 1996).
The evidence Barnes developed in the district court does not demonstrate actual
prejudice for at least three reasons: (1) the third-party communication was neutral
concerning how Barnes should be sentenced; (2) the communication did not alter the facts
or the law that the jury was instructed to use in deciding how to sentence Barnes; and (3)
the communication does not bear any other hallmarks of having had a substantial or
injurious effect or influence on the deliberative process.
A.
Barnes first fails to demonstrate actual prejudice because the external
communication that occurred in this case did not relate to what sentence the jury should
impose for Barnes’ crimes. Put another way, the nature of the communication was of such
a neutral and tangential nature to the issue before the jury that it could not have had an
“injurious effect or influence” on the jury’s sentencing decision. Brecht, 507 U.S. at 627.
25
The Supreme Court has recognized that “it is virtually impossible to shield jurors
from every contact or influence that might theoretically affect their vote.” Smith v. Phillips,
455 U.S. 209, 217 (1982). This means that when assessing instances of improper jury
communication with a third-party, the Court must ensure that the defendant was tried by a
“jury capable and willing to decide the case solely on the evidence before it.” Id.; see also
Rushen v. Spain, 464 U.S. 114, 118–120 (1983). Consequently, not every improper
communication between a juror and non-juror is actually prejudicial to a defendant.
Sometimes, the nature of the conversation will readily reveal whether it was innocuous—
e.g., a salutation—or injurious—e.g., opinion about guilt.
Based on this understanding, courts have recognized that a petitioner may be able
to satisfy his burden of showing actual prejudice when one or more jurors is exposed to a
non-juror’s opinion about the defendant’s guilt or punishment. Indeed, the Supreme Court
has stated that “it would be blinking reality not to recognize the extreme prejudice inherent”
when a court employee offers his opinion about the defendant’s culpability to the jurors.
Parker v. Gladden, 385 U.S. 363, 365 (1966) (per curiam). Specifically, in Parker, a bailiff
assigned to a jury told several jurors, “Oh that wicked fellow (petitioner), he is guilty” and
later said to another juror that “[i]f there is anything wrong (in finding petitioner guilty)
the Supreme Court will correct it.” Id. at 363–64 . Along this line, the U.S. Court of Appeals
for the Ninth Circuit has recognized that although “not every incident of a juror’s ex parte
contact with friends or relatives would constitute actual prejudice to a defendant,” a habeas
petitioner had demonstrated actual prejudice when a juror engaged in “active[]
discuss[ions]” about the case with her friends and those friends “presented . . . strong
26
opinions concerning the proper outcome of [the defendant’s case].” United States v. Maree,
934 F.2d 196, 202 (9th Cir. 1991) abrogated on other grounds by United States v. Adams,
432 F.3d 1092 (9th Cir. 2006).
In contrast to the bailiff in Parker and the juror’s friends in Maree, the record
developed in the district court here is unequivocal that Juror Jordan’s pastor did not provide
his opinion regarding an appropriate sentence for Barnes or comment on any of the
evidence or law relevant to the jury’s deliberations. This was so because Jordan did not ask
her pastor’s “advice or counsel about the case” and only asked him about “the closing
argument as far as . . . if they got the death sentence for what they did and we sentenced
them to death, were we going to die because we’re killing them.” J.A. 2272. She solicited
her pastor’s view on the narrow issue of whether the Bible said jurors could go to hell if
they decided to sentence the defendants to death. Jordan repeatedly stated, without
contradiction, that she did not seek her pastor’s advice about the case or how she should
vote. J.A. 2275–76 (“The only thing [that led me to talk to him] was as far as burning in
hell. That’s the only reason I went and talked to him.”). There is no record evidence to the
contrary.
The pastor’s response was similarly limited: that jurors would not be condemned to
hell for their sentencing decision because the Bible did not teach that view. Instead, the
pastor noted the Bible instructed Christians to “live by the laws of the land.” J.A. 2273.
Pastor Lomax provided Jordan with a few Bible verses to support that view. Most
importantly, at no time did the pastor lead Jordan to believe “the Bible supported [or] didn’t
support the death penalty,” or give his view in any way as to the disposition of Barnes’
27
case. J.A. 2273. Jordan relayed the same information to other jurors at the next day’s
deliberations.
Juror Peacock’s testimony wholly supports Jordan’s testimony on this point,
reiterating that Jordan did not use the pastor’s comments or the Bible verses to support or
oppose the death penalty for Barnes or any of the other defendants. 5
Juror Weddington’s testimony does not alter this analysis. Her recollections were
hazy and not well-developed, as she testified only that a female juror had read from the
Bible during deliberations and did not provide any testimony connecting the juror’s
comments to a conversation with her pastor. When asked what might have prompted the
juror to read from the Bible, Weddington speculated, “I guess she was trying to convince
someone to – it was okay to give him the death penalty.” J.A. 2295 (emphasis added). But
guesses are not evidence. The Mattano, 52 F. 876, 880 (4th Cir. 1892) (“[L]oose conjecture
is not testimony.”); see also U.S. Steel Min. Co. v. Director, Office of Workers’ Comp.
Programs, U.S. Dep’t of Labor, 187 F.3d 384, 390 (4th Cir. 1999) (noting the words used
in the testimony—“it is possible that it could”—rendered the testimony “entirely
speculative”).
5
Given that none of the witnesses could recall where in the Bible the verses
originated, Peacock’s recollection that one verse had to do with an “eye for an eye and
tooth for a tooth” is of limited evidentiary value. J.A. 2281. The phrase appears in both the
Old and New Testaments, and in the New Testament appearance the phrase is followed by
the admonition “But I say unto you, That ye resist not evil: but whosoever shall smite thee
on they right cheek, turn to him the other also.” Matthew 5:38–39; see Hurst v. Joyner, 757
F.3d 389, 392 n.1 (4th Cir. 2014) (discussing the four appearances of the phrase in the
Christian Bible); Robinson v. Polk, 438 F.3d 350, 358 n.8 (4th Cir. 2006) (same).
28
Unable to recall details of Jordan’s communication, Weddington provided no
factual information about Jordan’s statements during the deliberations that would allow for
a factfinder to conclude that her “guess” was based on any reasonable impression formed
from witnessing the events in question. Specifically, Weddington did not identify which
female juror read from the Bible, what Bible verses were read, or whether they were from
the Old or New Testament, and she did not provide any testimony regarding what else the
juror said besides reading from the Bible. Juror Weddington thus offered no basis for
connecting her “guess” about the juror’s motive to what the juror did. At bottom,
Weddington acknowledged she was “guess[ing]” at a reason and the district court properly
took her at her word when it concluded Weddington’s statement was speculative and thus
not evidence of actual prejudice. J.A. 2443-45. The majority errs in relying on her
conjecture as a basis for granting Barnes relief.
Further, the majority opinion simply ignores the uncontested fact that no witness—
none—testified that Pastor Lomax said anything that attempted to influence Juror Jordan
(directly) or another juror (indirectly) as to the merits of what sentence Barnes should
receive under North Carolina law. Unlike the bailiff’s express opinion of guilt in Parker or
the friends’ open discussion of the case in Maree, the external communication that occurred
in this case did not address the merits of the case nor did it expose Juror Jordan or any other
juror to a third-party’s view of the evidence or the appropriate sentence. While an
inappropriate third-party communication occurred, it was unrelated to the question of what
sentence Barnes should receive and thus could not have prejudiced him by affecting or
influencing the jury’s decision making.
29
Courts have held that when a communication, as that here, is innocuous or not about
the decision the jury must make, the error has not actually prejudiced the defendant even
when the communication was tangentially related to the case. E.g., Rushen, 464 U.S. at
118–19 (concluding no prejudice arose from juror’s ex parte communication with trial
judge concerning juror’s personal acquaintance with a prior victim of the defendant
because judge had ensured juror could still be impartial during deliberations); Crease v.
McKune, 189 F.3d 1188, 1190, 1192–94 (10th Cir. 1999) (holding petitioner had not
demonstrated actual prejudice when a juror had an ex parte conversation with the judge
during which she expressed discomfort with state law and the judge reiterated several jury
instructions and “admonished her according to the jury instructions that she cannot allow
prejudice and sympathy to enter into her deliberation” because the judge did not pressure
her to vote to convict or suggest how she should vote); United States v. Endicott, 869 F.2d
452, 454, 457 (9th Cir. 1989) (concluding that no actual prejudice resulted from contact
between a juror and a government witness where the juror complained to the witness that
the defendants were “guilty,” but “we will have to listen to all the rest of the b.s.” because
the exchange was “inconsequential”); United States v. Day, 830 F.2d 1099, 1103–07 (10th
Cir. 1987) (holding no actual prejudice where a juror and a government witness engaged
in “a casual, time-of-the-day greeting” about how the juror was “holding up” and that the
testimony “may put you to sleep”); see also United States v. Davis, 51 F.3d 269, 1995 WL
139323, *3 (4th Cir. 1995) (unpublished table decision) (holding defendant failed to
demonstrate actual prejudice when a juror asked the government’s case agent what the
30
Bureau of Alcohol, Tobacco, and Firearms did because “the conversation had not involved
the merits of the pending case”).
As in the cases cited above, Barnes has failed to demonstrate that the conversation
between Juror Jordan and her pastor, by its nature, had a substantial and injurious effect or
influence on his being sentenced to death. The communication involved a topic tangential
to the jury’s assessment of the law and facts relevant to the sentencing determination. At
no point did the pastor communicate his views about Barnes, Barnes’ co-defendants, or the
case itself. Nor did he even mention the Bible’s views of the death penalty generally, or
under what circumstances the Bible may allow for such a sentence. Because Jordan’s
conversation with her pastor did not advocate for or against the death penalty in general—
let alone as the appropriate punishment for Barnes—it could not have swayed her own or
any other juror’s decision about how to sentence Barnes. Thus, as many courts considering
similarly tangential ex parte communications have concluded, an innocuous conversation
like Jordan’s with her pastor could not have not actually prejudiced Barnes.
The majority opinion’s contrary conclusion stems from multiple missteps. At the
outset, it draws the specious conclusion that the third-party communication advocated for
the death penalty: a conclusion wholly without support in the record. That conclusion
ignores the entirety of the testimony concerning what the pastor said: first, that jurors would
not go to hell if they voted to impose the death penalty, and, second, that the Bible said
individuals should follow the law of the land. These statements are neutral on the question
of how Barnes should be sentenced. What is more, the majority’s conclusion contradicts
31
the testimony of both Juror Jordan and Juror Peacock that the information relayed directly
or indirectly from the pastor did not advocate for or against the death penalty.
Given that the pastor’s comments could not possibly have been injurious to Barnes,
the communication that occurred in this case could not have had a prejudicial effect or
influence on the verdict. But after the majority opinion manipulates the communication
into a broadly pro-death penalty influence, it then excuses Barnes for failing to prove that
aspect of actual prejudice by blaming Federal Rule of Evidence 606. But this rule offers no
refuge. Rule 606 codifies the common-law prohibition of admitting juror testimony to
impeach a jury verdict. Fed. R. Evid. 606(b)(1) (“During an inquiry into the validity of a
verdict or indictment, a juror may not testify about . . . the effect of anything on that juror’s
or another juror’s vote; or any juror’s mental processes concerning the verdict or
indictment.”). An exception to that rule found in both the federal and North Carolina rules
of evidence allows jurors to testify as to “whether extraneous prejudicial information [that
has been] improperly brought to the jury’s attention or whether any outside influence was
improperly brought to bear upon any juror.” Robinson, 438 F.3d at 360 n.10 (citing Fed.
R. Evid. 606(b); N.C. Gen. Stat. § 8C-1, Rule 606(b)). This exception allowed Barnes to
garner evidence concerning Juror Jordan’s communication with her pastor and her
conveyance of that information to the jury.
But Barnes’ problem demonstrating actual prejudice did not arise from his inability
to present witnesses who could confirm that they were persuaded to vote for the death
penalty as a result of Juror Jordan’s conversation with her pastor. Rather, Barnes’ claim
falters because he has an objective failure of proof that the communication exposed Jordan
32
or another juror to a third party’s opinion that they should sentence Barnes to death. Unlike
the instances where the subject matter of the communication had a clear analytical bridge
to the prejudicial effect or influence, the communication in this case touched on a different
topic. The majority can only reach a contrary conclusion by misrepresenting what the
conversation entailed and then speculating about its unproven influence on a juror. That
reasoning falls far short of proof of actual prejudice and is contrary to the record.
B.
Barnes also failed to demonstrate actual prejudice because the external
communication did not materially alter the facts or law by which the jurors were to
determine Barnes’ sentence. As the district court explained,
[i]n the absence of additional evidence that either Pastor Lomax or Juror
Jordan employed Bible verses to actively encourage jurors to impose the
death penalty, the logical conclusion is that the extraneous influence
encouraged the jurors to decide the case based on the facts presented and the
law of North Carolina and not based on the religious constraints defense
counsel sought to impose. This weighs against any finding that the
extraneous influence had a substantial and injurious effect or influence in
determining the jury’s verdict.
Barnes, 2018 WL 3659016, at *7.
Conversely, a defendant could establish actual prejudice by showing external
influences that alter the facts being considered during deliberations. For example, courts
have held that a petitioner may be able to satisfy the Brecht standard when the jury
considers inculpatory evidence that was not presented at trial. E.g., Sassounian v. Roe, 230
F.3d 1097, 1108–12 (9th Cir. 2000) (holding actual prejudice was shown when jury
considered a telephone call that had not been discussed during the trial and which related
33
to the defendant’s motive); Bonner v. Holt, 26 F.3d 1081, 1084 (11th Cir. 1994) (holding
the defendant was actually prejudiced when jury returned a verdict of guilt only after
learning that the defendant was a habitual offender, a fact that was not introduced at trial);
Marino v. Vasquez, 812 F.2d 499, 506 (9th Cir. 1987) (observing that petitioner had
established actual prejudice because there was “a direct and rational connection between
the extrinsic material” and the jury’s verdict when the jury engaged in an “unauthorized
out-of-court experiment with [a] gun [that] relate[d] to the defense theory of self-defense,
which was a material element”); cf. Dorsey v. Quarterman, 494 F.3d 527, 531–32 (5th Cir.
2007) (holding the defendant did not experience actual prejudice when jurors inadvertently
received an unedited transcript that contained information about the defendant’s prior bad
acts because jurors “were questioned to insure that they would disregard the material” and
“be impartial” during deliberations and the evidence against the defendant was
overwhelming). Of course, there’s no evidence in this case—none—that Juror Jordan
conversation with her pastor exposed any juror to any new facts that might be relevant to
his sentence or shed a different light on the known facts.
Separately, external influences that materially alter the legal standard the jury uses
to deliberate may establish actual prejudice. E.g., Marino, 813 F.2d at 506 (observing that
petitioner established actual prejudice because there was a “direct and rational connection
between the extrinsic material” and the jury’s verdict when the jury consulted a dictionary
definition that changed the meaning of the offense’s material element in dispute).
But where the external influence did not materially alter the jury’s understanding of
the circumstances in which it could reach its verdict, that influence—even when it changed
34
the jury’s comprehension of a material legal element—did not rise to the level of being
actually prejudicial. In Bauberger, we held that the petitioner had not demonstrated actual
prejudice for purposes of § 2254 arising from the jurors’ decision to review “dictionary
definitions of several words in the judge’s instructions.” 632 F.3d at 102. 6 In relevant part,
that jury was tasked with determining whether Bauberger was guilty of second-degree
murder and the only disputed element in the case was whether he had acted with “malice.”
The court instructed the jurors:
Malice is a necessary element which distinguishes second degree murder
from manslaughter. Malice arises when an act which is inherently dangerous
to human life is intentionally done so recklessly and wantonly as to manifest
a mind utterly without regard for human life and social duty and deliberately
bent on mischief.
Id. at 105. On a lunch break, the jury foreperson obtained a dictionary and, when
deliberations resumed, read several of its definitions to other jurors, including the terms
“recklessly”—defined as “lack of due caution”—and “wantonly”—defined as “arrogant
recklessness of justice or the feelings of others.” Id. at 105–06. Later that day, the jury
convicted Bauberger of second-degree murder. In his § 2254 petition, Bauberger argued
that the jury’s decision to consult the dictionary during deliberations had a substantial and
injurious effect because one or more jurors may have relied on those definitions, which he
contended lowered the government’s burden of proving malice as defined by the law.
6
Although third-party communications differ from other sorts of external influences
on a jury for certain aspects of the analysis, see United States v. Lawson, 677 F.3d 629, 644
(4th Cir. 2012), both could demonstrate actual prejudice if they resulted in an alteration to
the legal standard by which the jury weighed the evidence.
35
The Court disagreed, concluding that the definitions of malice “even as possibly
modified by the definitions the jurors consulted, fully conveyed the essence of North
Carolina law concerning malice.” Id. at 107. In short, we held that “Bauberger’s verdict
was not substantially and injuriously affected by the dictionary’s definition of ‘recklessly’
because the altered instruction as a whole remained materially equivalent to the one given
by the judge.” Id. The Court reached the same conclusion regarding the jury’s consideration
of the term “wantonly,” explaining that “[a]ny modification of the instruction that came
about by virtue of the dictionary’s definition of ‘wantonly’ did not materially affect that
instruction’s malice standard.” Id. Lastly, the Court “look[ed] to the strength of the
evidence in assessing whether the dictionary use substantially and injuriously affected
Bauberger’s verdict,” concluding that because the evidence on this element was “not likely
a close one,” meaning that “it is less likely that the error impacted the jury’s decision.” Id.
at 108.
Bauberger counsels that the external communication in this case, which related to
the jury’s decision far less than the unauthorized use of a dictionary in Bauberger did,
could not have substantially and injuriously affected Barnes’ sentence. As discussed, Juror
Jordan’s pastor relayed two thoughts that Jordan then shared with the jury: that the Bible
commanded jurors to follow “the laws of the land” and that the Bible did not say that jurors
would go to hell if they decided to impose the death penalty. J.A. 2271. While those
positions countered the co-defendants’ closing argument, they were fully consistent with
the jurors’ duty in making their sentencing decision: to sentence Barnes based on North
Carolina’s capital sentencing criteria, not the Bible’s view for or against the death penalty.
36
The external communication that occurred in this case—while inappropriate—neither
introduced an improper consideration into the deliberative process nor expanded the
circumstances in which the jury could lawfully impose the death penalty.
Simply put, the view that jurors must follow the law of the land—regardless of their
personal convictions regarding the morality of the death penalty—corresponds precisely
with federal and state law establishing a juror’s sworn obligation during deliberations.
Jurors in a capital case are charged with determining an appropriate sentence based on the
legally relevant factors as applied to the facts of the case. See, e.g., Turner v. Louisiana,
379 U.S. 466, 472–73 (1965). To that end, prospective jurors can be questioned and
excused for cause if they hold any views that would “prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath.”
Wainwright v. Witt, 469 U.S. 412, 424 (1985); see also N.C. Gen. Stat. § 15A-1212(8)
(stating that jurors can be challenged for cause on the ground that the juror “[a]s a matter
of conscience, regardless of the facts and circumstances, would be unable to render a
verdict with respect to the charge in accordance with the law of North Carolina”);
Robinson, 444 F.3d at 226 (Wilkinson, J., concurring in denial of rehearing en banc)
(“Courts have always recognized that jurors’ personal convictions, including religious
ones, may impede the dutiful performance of their momentous responsibility.”). In
addition, North Carolina courts have “repeatedly cautioned counsel that they should base
their jury arguments solely upon the secular law and the facts,” although various arguments
invoking the Bible have been held not to so infect a trial with unfairness as to violate a
defendant’s due process rights. State v. Lloyd, 552 S.E.2d 596, 624–25 (N.C. 2001); see
37
also State v. Williams, 510 S.E.2d 626, 643 (N.C. 1999) (“Our trial courts must vigilantly
ensure that counsel for the State and for defendant do not distract the jury from its sole and
exclusive duty to apply secular law.”).
Juror Jordan’s conversation with her pastor, which she relayed to the other jurors,
reinforced the very framework by which the jurors had already been instructed to use when
assessing a proper sentence: to rely solely on North Carolina’s sentencing criteria.
The same conclusion can be drawn from the comment that the Bible did not say
jurors would go to hell if they decided to impose the death penalty. As with the earlier
statement, this communication did not expand the circumstances in which the jury could
sentence Barnes to death under North Carolina law. Instead, it directed the jurors to follow
their obligation to review the relevant factors under North Carolina law and determine
whether the circumstances of Barnes’ case warranted death or life imprisonment. In sum,
the external communication mitigated the argument by Barnes’ co-defendant’s counsel that
the jurors would face eternal damnation, but mitigating that argument did not implicate the
jury’s duty during deliberations: to determine an appropriate sentence for Barnes based on
the facts and North Carolina law.
As was true in Bauburger, the external communications that occurred in this case
were consistent with “the essence of North Carolina law” concerning the jurors’ sentencing
options and did not “materially affect[]” that standard. Bauberger, 632 F.3d at 107.
Because the external communication at issue here did not lead the jury to consider
additional facts or incorrect law in making its sentencing determination, the
communication did not have an injurious effect or influence on that process. Absent this
38
influence, the admonition to jurors to follow their sworn duty cannot support a finding of
actual prejudice.
C.
Additional factors reinforce the conclusion that Barnes was not actually prejudiced
as a result of the external communication between Juror Jordan and her pastor, including:
the comparatively short duration of the communication, the jury’s split sentencing decision
between the three co-defendants, and the jury’s specific findings in the penalty phase.
Courts have considered the timing and duration of any error as part of their actual
prejudice assessment. Fitzgerald v. Greene, 150 F.3d 357, 366 (4th Cir. 1998) (concluding
no actual prejudice had resulted from a juror’s statement the defendant claimed to
demonstrate implied bias because when the statement was made, the jury had already voted
to convict the defendant and recommended the death penalty for one charge); Marino, 812
F.2d at 506 (noting that the “length of time [extrinsic material] was available to the jury,”
“the extent to which the [jury] discussed and considered it,” and when the material was
introduced and “at what point in the deliberations” were all factors to be considered as part
of the total actual prejudice assessment). Here, Juror Jordan’s conversation with her pastor
lasted only a “few minutes” during a substantially longer conversation with him about other
matters. J.A. 2271. Then, during deliberations that spanned more than one day, Juror Jordan
spent “15 to 30 minutes” discussing the view that Christians were to “live by the laws of
the land” and “read[ing] the Bible verses to them” that her pastor had given to her. J.A.
2273–75. All told, there is no evidence that the pastor’s comments concerning the Bible’s
instruction to follow the law of the land took a place of prominence during the deliberative
39
process. Nor is there any indication, as has been present in other cases, that this discussion
occurred at a critical juncture—such as between a deadlocked jury and final verdict—in
the deliberations. E.g., Marino, 812 F.2d at 506; Bulger v. McClay, 575 F.2d 407, 411–12
(2d Cir. 1978)(relying in part on the jury’s “difficulty in reaching a verdict” before being
exposed to extra-record information as the basis for concluding the error “may well have
been determinative” to the verdict).
Courts have also looked to the strength or weakness of the prosecution’s case when
assessing whether an error had a substantial and injurious effect or influence. Jones v.
Angelone, 94 F.3d 900, 909 n.10 (4th Cir. 1996) (observing that this factor is relevant to
determining whether the error was “substantial”); accord Broom v. Mitchell, 441 F.3d 392,
412 (6th Cir. 2006); Malicoat v. Mullin, 426 F.3d 1241, 1250–52 (10th Cir. 2005). Given
that the decision to impose the death penalty involves a level of subjective assessment that
is not present when assessing guilt in the first instance, I recognize that this factor has a
limited utility. Nonetheless, when combined with the reasons already discussed and the
following aspects of the sentence deliberations, there is no room for any “grave doubt” as
to the harmlessness of the external communication that occurred in this case.
First, the jurors returned different sentences for the three co-defendants. As noted,
the jury was deliberating the appropriate sentence for Barnes and his two co-defendants at
the same time. All three men could have received the death penalty. But the jurors decided
that only Barnes and one co-defendant should receive the death penalty, while they
sentenced the second co-defendant to life imprisonment. This determination reflects that
the jurors understood their duty to individually assess the appropriate punishment for each
40
defendant, as consistent with the jury instructions. Moreover, they imposed the death
penalty against the two individuals (including Barnes) who had been identified by a co-
defendant as the individuals who actually shot the victims, while imposing a life sentence
against the third co-defendant, who had participated in the robbery scheme and was present
during the murders. This, too, reflects that the jurors imposed a sentence based on their
view of the defendants’ relative culpability in the murders as opposed to a Biblical mandate
for or against the death penalty.
Second, the jurors returned an individualized assessment of mitigating and
aggravating factors for Barnes based on North Carolina’s capital sentencing criteria. Part
of the jury’s deliberations in the penalty phase required them to find specific mitigating
and aggravating factors under North Carolina law. They found 10 mitigating factors and 4
aggravating factors relevant to their decision to sentence Barnes to death. As the district
court noted, the mitigating factors “related primarily to [Barnes’] childhood,” while the
aggravating factors focused on Barnes’ criminal conduct, including the pecuniary motive
for the murders, that it was part of a course of violent criminal conduct, and its “especially
heinous, atrocious, or cruel” nature. J.A. 2452.
In sum, these additional factors reinforce the conclusion that the jury was “capable
and willing to decide the case solely on the evidence before it” as opposed to having been
swayed by the improper communication between Juror Jordan and her pastor. McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984).
****
41
Considering the nature of the external communication that occurred in this case
alongside the proceedings as a whole, no “grave doubt” exists as to the harmlessness of the
error. Bauberger, 632 F.3d at 104. To the contrary, Barnes simply did not satisfy his burden
of demonstrating actual prejudice, and the district court did not err in denying his § 2254
petition.
III.
For the reasons set forth above, I would affirm the judgment of the district court.
Therefore, I respectfully dissent.
42