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 CorrectionAnnex; 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 GENERAL, Baltimore, Maryland, for Appellees.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

We granted en banc review in this case to consider whether the district 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 sentenced 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 shotgun blast. When police arrived, Timothy Sherman, Ann and Stevenson'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 summoned 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 Timothy'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 downward 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 parents. 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 allegations of juror misconduct during the course of the trial. Specifically,

he alleged that one of the jurors, Blane Miller, had made an unauthorized 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, however, declined to grant relief. The Maryland Court of Appeals and the

United States Supreme Court declined to review Sherman's conviction. 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 presented" 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 perfection, 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 harmless. 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 admission 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 defendant'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 defendant 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 produce identical results: unfair convictions are reversed while fair convictions 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 classified as structural, thus resulting in the reversal of criminal convictions 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 presence 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 automatically 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 balance is best expressed in the notion of a fair, but not a perfect, criminal trial. When an error is misclassified as one requiring automatic

reversal, the balance is upset, and proceedings that in reality are perfectly 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 evidence 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 Sherman 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 investigation 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: discerning the effect of juror misconduct or bias on the verdict without examining 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 mistrial when judge excused juror from further service and satisfied himself 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 reversal 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 previously 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, however, 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 reinforced 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 erroneous 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 analysis.

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 determining 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 collateral 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 standard 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 concluded that a less onerous harmless error standard was "better tailored

to the nature and purpose of collateral review and more likely to promote the considerations underlying" its habeas jurisprudence. Id. at

638.

These principles of federalism, comity, and finality apply regardless 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 reasoning. 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 present 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 commands 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 litigation 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 proposes 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 "`substantial and injurious effect or influence in determining the jury's verdict.'" 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 determinations. 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. Miller 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 harmless. 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 "numerous 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 cumulative 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 opportunity, 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 assumptions: "that Miller examined the tree, told the other jurors that he disagreed 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 photographs showing that Sherman had an opportunity to hide the

weapon in the tree, which was located on the route between the Sherman 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 district 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 difficult 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 fingerprints 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 Miller's investigation of the crime scene, and in particular the tree, cannot 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 Sherman to challenge the sufficiency of the evidence against him, an argument 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 unauthorized 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 instructions 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 needles 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 parties, 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 subdivision 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, testifying 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 information 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 considered 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 possibility 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 investigation and sharing of result with rest of panel did not warrant a mistrial 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 unauthorized 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 extraneous 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 Fourteenth 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 injection 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 concern 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 fundamental 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. Prestongrange 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 testimony. 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 murder case made an out-of-court excursion without the trial judge's permission. 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 outside influences lies at the very foundation of the confidence that

has been maintained in it. It is of the highest importance therefore 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 anything 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 exhortations 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 framework 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 prejudiced 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 reputation 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 appellate 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 prosecutor'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 defendant. 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 evidence 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 developed' against a defendant shall come from the witness stand in a public 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 subjects, 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 constitutional 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 prohibited.

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 consideration 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 fundamental 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 analysis 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. Perhaps 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 structural 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 harmless 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 Sherman'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 violation 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 defendant'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. Furthermore, 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 conviction 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 inviolable right could be circumvented by allowing the deposition of a witness, 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 essentially 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), illustrates an essential distinction. Upon review of a reversal of a conviction

because of a restriction on the defendant's ability to cross-examine a witness which violated his Confrontation Clause rights, the Court remanded

to allow harmlessness to be explored. Id. at 684. Unlike Sherman's situation, the defense in Van Arsdall was fully aware of the bias issues it

sought to explore with cross-examination, but was denied the opportunity. 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 "affects 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 "reliably 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 information 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 circumstances of Van Arsdall, knowledge of the witness's presence and the possibility 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 person 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 struggle 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 necessarily 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 sanctioned, 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 controls 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., concurring). Sherman may well have killed his parents, but we are a less civilized 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 convicted 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 dissenting 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 evidence 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. Accordingly, 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' standards." Arizona v. Fulminante, 499 U.S. 279, 309 (1990). Structural

errors are those that affect "the framework within which the trial proceeds." 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 impartial 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 deprivation 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 presented 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 particularly 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 exposure 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 necessarily 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 confrontation, of cross-examination, and of counsel." Turner, 379 U.S. at

472-73.2 Consequently, just as when a jury is given an improper reasonable doubt instruction, when a verdict is not based solely on evidence 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 conviction 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 render 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 verdict reached. Similarly, because a juror's unsupervised and unauthorized 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 renders 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 convincingly 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 ruling. Instead, he maintains that unauthorized site visits amount to constitutional 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 circumstances but not in others is unusual, but not unprecedented.

Indeed, as Sherman points out, the Supreme Court has adopted a similar 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 necessary. 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 constitutional error at all. Perry v. Leeke, 488 U.S. 272, 280-84 (1989).

Between these two extremes, there is "a line of constitutional dimension." 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, holding that such contacts require reversal of a conviction only if the government 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 communications, 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 indistinguishable" 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 impairment or predisposition, but rather the effect of an extraneous communication upon the deliberative process of the jury, the defendant's right to

an impartial jury requires that the government bear the burden of establishing 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 unsupervised and unauthorized visit to examine for himself the disputed

physical aspects of a site presents a more fundamental problem meriting treatment as structural error. A juror's private fact-finding mission, 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 problems 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 unadmitted 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 harmless error analysis. I therefore turn to that analysis.

II.

On collateral review, we may set aside a conviction only if convinced 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 Sherman'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 deliberations, 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 surrounding the juror's site visit.

All told, the record regarding the asserted error provides the following 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 sparsity of the record, the state trial court determined that Sherman suffered 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 testimony is consistent with a visit in which he simply drove through Gibson 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 measurements 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 "cumulative" 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 retroactively 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 integrity 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 discovery 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 insufficient record. This argument is foreclosed by Remmer, which mandates 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 acknowledges, 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 reasonably 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 circumstantial 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 evidence 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 presented at trial" that supports the jury's guilty verdict. This misconceives 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 Sherman'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 sparsity 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 prejudicial 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