PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM THOMAS BAUBERGER, 

Petitioner-Appellee,

v.  No. 09-8111

GRADY J. HAYNES,

Respondent-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Thomas D. Schroeder, District Judge.

(1:08-cv-00015-TDS-WWD)

Argued: October 26, 2010

Decided: February 11, 2011

Before WILKINSON and MOTZ, Circuit Judges, and

Damon J. KEITH, Senior Circuit Judge of the United States

Court of Appeals for the Sixth Circuit,

sitting by designation.

Reversed and remanded by published opinion. Judge Wilkinson wrote the majority opinion, in which Judge Motz joined.

Senior Judge Keith wrote a dissenting opinion.

COUNSEL

ARGUED: Clarence Joe DelForge, III, NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellant. David L. Neal, Hillsborough, North Carolina, for

Appellee. ON BRIEF: Roy Cooper, Attorney General of the

State of North Carolina, Raleigh, North Carolina, for Appellant.

OPINION

WILKINSON, Circuit Judge:

William Thomas Bauberger was convicted of seconddegree murder and assault with a deadly weapon inflicting

serious injury after he drove his car the wrong way down an

exit ramp, killing one person and wounding another. Bauberger unsuccessfully challenged his murder conviction in state

court after learning that the jurors read dictionary definitions

of several words in the judge’s instructions.

Bauberger then sought federal habeas relief under 28

U.S.C. § 2254, arguing that the jurors’ dictionary use violated

his federal constitutional rights and prejudiced his verdict.

The district court agreed and granted the writ. Given that the

dictionary definitions did not materially alter the instruction

as a whole and that the government presented significant evidence of malice, any misconduct the jurors may have committed did not exert a "substantial and injurious effect . . . 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)) (internal quotation marks omitted).

Accordingly, the district court’s order granting Bauberger the

writ is reversed, and the case is remanded with directions to

dismiss the petition.

I.

On February 3, 2002, William Bauberger attended a Super

Bowl party at a friend’s house. Over the course of the five or

2 BAUBERGER v. HAYNES
so hours he was there, he drank more than ten beers. After the

game Bauberger, despite his intoxicated condition, decided to

drive to another friend’s house. He never made it. Instead, he

drove his Cadillac—at a speed somewhere around 45 to 55

miles per hour—the wrong direction down an exit ramp off

U.S. Highway 421 in Winston-Salem, North Carolina. Disregarding "Do Not Enter" and "Wrong Way" signs, as well as

the honks and swerves of several cars traveling in the proper

direction, Bauberger finally crashed his car into that of William and Carol Foy. William sustained several broken bones,

and Carol died within minutes.

The government charged Bauberger with second-degree

murder and assault with a deadly weapon inflicting serious

injury. At trial the government introduced Bauberger’s troubled driving record. He had two prior driving-while-impaired

("DWI") convictions, as well as a reckless driving conviction

and other driving offenses. He also had disregarded prior

court orders not to drive and was driving on a revoked license

the night of the collision. Bauberger admitted that his bloodalcohol content that night was 0.20 and that he was aware of

the dangers of driving while intoxicated. In light of this evidence, Bauberger conceded guilt to the lesser-included

offense of involuntary manslaughter at trial but insisted that

he lacked the malice necessary for a second-degree murder

conviction under North Carolina law.

The jury convicted Bauberger of second-degree murder and

assault with a deadly weapon inflicting serious injury, and he

was sentenced to 189 to 236 months in prison. Shortly after

the verdict came down, however, the parties and the court

learned that the jury may have used a dictionary during its

deliberations. Bauberger filed a postconviction Motion for

Appropriate Relief ("MAR"), arguing that the dictionary was

an impermissible extraneous influence on the jurors and that

the dictionary definitions lowered the government’s burden of

proof regarding malice. The MAR court determined from the

jurors’ affidavits that the jury’s foreperson left the courthouse

BAUBERGER v. HAYNES 3
during a break in deliberations, went to a public library, and

brought back the 1953 edition of Webster’s New Collegiate

Dictionary. He read to the other jurors the dictionary’s definition of several terms in the judge’s malice instruction but not

the definition of "malice" itself.

The MAR court denied Bauberger’s requested relief, reasoning that the jurors’ actions, though improper, were harmless. The North Carolina Court of Appeals affirmed,

reasoning that Bauberger’s federal constitutional rights were

not violated because the definitions "concerned legal terminology, not evidence developed at trial." State v. Bauberger,

626 S.E.2d 700, 706 (N.C. Ct. App. 2006). The North Carolina Supreme Court affirmed by an equally divided vote, leaving Bauberger’s convictions in place but stripping the lower

court’s decision of precedential effect. See State v. Bauberger,

637 S.E.2d 536 (N.C. 2006).

Bauberger filed for federal habeas relief under 28 U.S.C.

§ 2254. The district court granted his petition, holding that the

jurors’ dictionary use violated Bauberger’s clearly established

Sixth Amendment rights and that the error prejudiced him

because the dictionary’s definitions of "recklessly" and "wantonly" may have lowered the government’s burden of proof

regarding malice.

II.

We review the district court’s decision to grant the writ de

novo. Bell v. Ozmint, 332 F.3d 229, 233 (4th Cir. 2003). 

We shall assume without deciding that the North Carolina

Court of Appeals’s rejection of Bauberger’s Sixth Amendment claims was "contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States," satisfying the

threshold demands for habeas relief under the Antiterrorism

and Effective Death Penalty Act ("AEDPA"). 28 U.S.C.

4 BAUBERGER v. HAYNES
§ 2254(d)(1); see also Golphin v. Branker, 519 F.3d 168,

189-90 (4th Cir. 2008) (leaving unresolved whether the state

court unreasonably applied federal law because any error did

not have prejudicial impact under Brecht.) By doing so, we

skirt the problems long associated with unnecessary constitutional decisionmaking: we avoid wasting the parties’ and the

courts’ limited resources on "questions that have no effect on

the outcome of the case," Pearson v. Callahan, 129 S. Ct.

808, 818 (2009), and we minimize the threat to good adjudication that arises when courts enter into thorny constitutional

areas with inadequate briefing or in fact-bound dispositions,

see id. at 819-20.

Assuming arguendo that the state court erred in rejecting

Bauberger’s claim does not end our inquiry, however. "[M]ost

constitutional errors can be harmless," including those of the

kind we shall assume occurred at Bauberger’s trial. Arizona

v. Fulminante, 499 U.S. 279, 306 (1991); see, e.g., Fullwood

v. Lee, 290 F.3d 663, 678-83 (4th Cir. 2002) (third-party

influence on juror and jurors’ consideration of extraneous evidence subject to harmless error review). On direct review, the

government has the burden of proving that a constitutional

error was "harmless beyond a reasonable doubt." Chapman v.

California, 386 U.S. 18, 24 (1967).

On collateral review, however, the calculus changes.

Because of the threat collateral attacks pose to "finality, comity, and federalism," Fry v. Pliler, 551 U.S. 112, 116 (2007),

habeas petitioners may secure the writ only if the error "actual[ly] prejudice[d]" them, Brecht, 507 U.S. at 637 (quoting

United States v. Lane, 474 U.S. 438, 449 (1986)) (internal

quotation marks omitted). In making this determination,

courts ask whether the error had a "substantial and injurious

effect or influence in determining the jury’s verdict." Id.

(quoting Kotteakos, 328 U.S. at 776) (internal quotation

marks omitted). In the "unusual" situation where "the matter

is so evenly balanced that [the habeas judge] feels himself in

virtual equipoise as to the harmlessness of the error [under

BAUBERGER v. HAYNES 5
Brecht]" — that is, where the judge is in "grave doubt" — the

court must grant the writ. O’Neal v. McAninch, 513 U.S. 432,

435 (1995).

The Supreme Court recently addressed the relationship

between the Chapman direct review standard, AEDPA’s deference requirement, and the Brecht collateral review standard.

In Fry, the question before the Court was whether habeas

courts should apply the AEDPA/Chapman test (asking

whether a state court unreasonably applied Chapman’s direct

review standard), the Brecht test (asking whether a constitutional error had a substantial and injurious effect), or both. See

Fry, 551 U.S. at 119-20.

The Court made two critical determinations. First, it held

that "in § 2254 proceedings a court must assess the prejudicial

impact of constitutional error in a state-court criminal trial

under the [Brecht] standard . . . , whether or not the state

appellate court recognized the error and reviewed it for harmlessness under [Chapman]." Fry, 551 U.S. at 121-22 (emphasis added) (citations omitted). Second, the Court stated that "it

certainly makes no sense to require formal application of both

tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former." Id. at 120. That is to say, where

an error is harmful under Brecht, any state court decision

declaring it harmless must have unreasonably applied Chapman. As a result, any error satisfying Brecht will also satisfy

AEDPA’s deference requirements. See Ruelas v. Wolfenbarger, 580 F.3d 403, 411-13 (6th Cir. 2009).

Thus the Court took a somewhat convoluted debate over

the appropriate standard in harmless error habeas cases and

opted for simplicity itself. Federal habeas courts must always

review constitutional errors in state trials under Brecht, but

they need not debate whether a state court’s harmless error

determination also unreasonably applied Chapman, as most

circuits since Fry have explicitly or implicitly recognized. See

Welch v. Workman, 607 F.3d 674, 686 (10th Cir. 2010); Wes6 BAUBERGER v. HAYNES
brook v. Thaler, 585 F.3d 245, 255-56 (5th Cir. 2009); Ruelas

v. Wolfenbarger, 580 F.3d 403, 411-13 (6th Cir. 2009); Moses

v. Payne, 555 F.3d 742, 755 (9th Cir. 2009); Farley v. Bissonnette, 544 F.3d 344, 347-48 (1st Cir. 2008); Bond v. Beard,

539 F.3d 256, 275-76 (3d Cir. 2008). But see Perkins v. Herbert, 596 F.3d 161, 175-77 (2d Cir. 2010) (leaving undecided

whether both AEDPA/Chapman and Brecht must be used);

Johnson v. Acevedo, 572 F.3d 398, 403-04 (7th Cir. 2009)

(requiring AEDPA/Chapman and Brecht where a state court

addressed harmlessness).

Of course, most successful habeas petitioners must still go

through "AEDPA[’s] mandate[d] . . . two-step analysis" by

demonstrating that the state court’s resolution of their constitutional claim was contrary to or unreasonably applied clearly

established federal law and that the error was prejudicial

under Brecht. Baum v. Rushton, 572 F.3d 198, 205 (4th Cir.

2009); see also Barbe v. McBride, 521 F.3d 443, 453 (4th Cir.

2008). But this two-step process does not require us to

address the first prong where the petitioner’s claims fail on

the second, see Golphin, 519 F.3d at 189-90, and as explained

above, Fry absolves us of any need to consider both

AEDPA/Chapman unreasonableness and Brecht prejudice in

the harmless error context. Accordingly, we need only determine whether the jury’s dictionary use prejudiced Bauberger

under the Brecht standard.1

III.

In analyzing whether the prejudice from the jury’s dictio1We therefore need not resolve the parties’ dispute about whether we

should "look through" the North Carolina Court of Appeals’s decision

(which did not conduct a harmless error analysis) to the MAR Court’s

decision (which did) to perform AEDPA/Chapman analysis. See Ylst v.

Nunnemaker, 501 U.S. 797, 803 (1991) (habeas courts should look

through summary affirmances to the "last reasoned decision" to determine

whether a state procedural rule bars habeas review). 

BAUBERGER v. HAYNES 7
nary use meets the Brecht standard, we begin by laying out

the jury’s actions in greater detail. 

A.

The trial judge instructed the jurors on the meaning of

"malice," the only element of second-degree murder that Bauberger disputed, as follows:

Malice is a necessary element which distinguishes

second degree murder from manslaughter. Malice

arises when an act which is inherently dangerous to

human life is intentionally done so recklessly and

wantonly as to manifest a mind utterly without

regard for human life and social duty and deliberately bent on mischief.

Shortly after beginning its deliberations, the jury requested a

copy of the elements of second-degree murder and manslaughter. In response, the judge re-read the instructions to the

jurors and returned them to their deliberations. However, they

soon sent another note to the judge asking for a copy of the

instruction regarding malice and any other contested element,

stating that "[m]any of us are visual people." The judge

informed them he would prepare a copy during their upcoming lunch recess and dismissed them for that recess.

As previously indicated, during lunch the jury’s foreperson

retrieved a dictionary and read some of its definitions to the

other jurors when deliberations resumed. Though he did not

read the definition for "malice" itself to the jury, he did read

them the definitions for some of the words in the judge’s

instruction, including "recklessly" and "wantonly."2 The dic2The jurors also heard the definitions of "manifest" ("show"), "utterly"

("fully, totally"), and "regard" ("respect or consideration for"), and earlier

in Bauberger’s trial one juror looked up the definition of "malice" in a dictionary at his home but did not copy it down, recall it, or share it with others. Following the district court, Bauberger focuses on the prejudicial

impact of the dictionary definitions for "recklessly" and "wantonly" on

appeal. 

8 BAUBERGER v. HAYNES
tionary defined the former as "lack of due caution" and the

latter as "arrogant recklessness of justice or the feelings of

others." Two hours into their resumed deliberations the jury

informed the judge that they had resolved one count but were

split seven to five on the other. The judge instructed them to

do their best to "reconcile [their] differences . . . without the

surrender of conscientious convictions." Within an hour of

this instruction the jury stood at ten to two, and within two

hours they had convicted Bauberger of second-degree murder

and assault with a deadly weapon inflicting serious injury.

B.

Bauberger argues that the dictionary definitions of "recklessly" and "wantonly" lowered the government’s burden of

proof on the issue of malice, an issue with which he contends

the jury apparently struggled. As a result, Bauberger claims

that the erroneous use of those dictionaries meets the Brecht

standard: one or more of the jurors may have applied an unacceptably low malice standard in convicting Bauberger of

second-degree murder, and therefore the dictionary use had a

substantial and injurious effect upon his verdict. We disagree:

the dictionary definitions did not materially alter the meaning

of the instruction as a whole, and the government introduced

significant evidence of malice.

1.

In assessing the harm from jurors’ use of a dictionary we

look in part to the difference between the dictionary definition

and the legal definition. See Henderson v. Kibbe, 431 U.S.

145, 154 (1977) (looking to the difference between the actual

instruction given and the correct instruction to determine prejudice); McNeill v. Polk, 476 F.3d 206, 226-27 (4th Cir. 2007)

(King, J., concurring in part and concurring in the judgment)

(examining difference between dictionary and legal definitions); McNeill, 476 F.3d at 229-30 (Gregory, J., dissenting in

part and concurring in part) (same). Under North Carolina law

BAUBERGER v. HAYNES 9
the "distinction between ‘recklessness’ indicative of murder

and ‘recklessness’ associated with manslaughter ‘is one of

degree rather than kind.’" State v. Rich, 527 S.E.2d 299, 303

(N.C. 2000) (quoting United States v. Fleming, 739 F.2d 945,

948 (4th Cir. 1984)). North Carolina courts have indicated,

however, that the difference in degree is large. See, e.g., id.;

State v. Wilkerson, 247 S.E.2d 905, 918 (N.C. 1978). Nonetheless, they have upheld second-degree murder convictions

even where a portion of the malice instruction veered toward

culpable negligence in defining recklessness, provided the

instruction as a whole conveyed the difference. See Rich, 527

S.E.2d at 301-03 (upholding a second-degree murder conviction where a portion of the recklessness instruction suggested

that "recklessness of consequences" sufficed).

If Bauberger’s jury had only the dictionary’s "lack of due

caution" definition to go on in determining the recklessness

portion of the malice element, he would have more of a case.

But as the Supreme Court has long emphasized in the analogous context of jury instructions, "a single instruction to a

jury may not be judged in artificial isolation, but must be

viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). Viewed in this light, the

instruction, even as possibly modified by the definitions the

jurors consulted, fully conveyed the essence of North Carolina law concerning malice. The modified version still

referred to an "intentionally done," "inherently dangerous"

act. It still described the "lack of due caution" as of such a

nature as to "show a mind fully or totally without respect or

consideration for human life" or "social duty." And it still

spoke of an individual whose acts were so "arrogant[ly] reckless[ ] of justice or the feelings of others" as to indicate a

mind "deliberately bent on mischief."

This is not the language of mere culpable negligence.

Phrases like these impose a much higher standard than the

"thoughtless disregard of consequences" and "heedless indifference to the safety and rights of others" culpable negligence

10 BAUBERGER v. HAYNES
requires. State v. Mack, 697 S.E.2d 490, 494 (N.C. Ct. App.

2010) (quoting State v. Wade, 589 S.E.2d 379, 382 (N.C. Ct.

App. 2003)) (internal quotation marks omitted). Bauberger’s

verdict was not substantially and injuriously affected by the

dictionary’s definition of "recklessly" because the altered

instruction as a whole remained materially equivalent to the

one given by the judge.

So too with "wantonly." Under North Carolina law, "wantonness" describes "intentional wrongdoing," conduct

undertaken in "conscious and intentional disregard of and

indifference to the rights and safety of others." State v. Williams, 199 S.E.2d 409, 412 (N.C. 1973); see also State v.

Young, 559 S.E.2d 814, 818 (N.C. Ct. App. 2002). Again, it

would be one thing if the jurors had only considered "arrogant

recklessness of justice or the feelings of others" in determining whether Bauberger’s conduct was wanton. But the possibly modified instruction in its entirety still conveyed the

knowing disregard of others’ safety central to wantonness

under North Carolina law. It spoke of "intentionally done"

acts, ones performed with such "arrogant recklessness"

toward others as "to show a mind fully or totally without

respect or consideration for human life . . . and deliberately

bent on mischief." (emphases added). Any modification of the

instruction that came about by virtue of the dictionary’s definition of "wantonly" did not materially affect that instruction’s malice standard.

The other jury instructions also indicate that the jurors

could not have read the isolated definitions so as to alter the

malice instruction. "[T]he challenged instruction [is often] but

one of many such instructions . . . ." Henderson, 431 U.S. at

152 n.10 (quoting Cupp, 414 U.S. at 147) (internal quotation

marks omitted). Here, those other instructions illustrate that

the jurors were well aware of the difference between malice

and culpable negligence. The jurors were instructed that if

they acquitted Bauberger of second-degree murder they must

consider whether he was guilty of involuntary manslaughter,

BAUBERGER v. HAYNES 11
which requires a showing of culpable negligence. To find culpable negligence, the trial court instructed the jurors that they

must find that Bauberger drove while impaired, that he "willful[ly,] wanton[ly,] or intentional[ly]" violated the law, or that

his "inadvertent or unintentional violation of the law . . . [was]

accompanied by recklessness of probable consequences of a

dangerous nature . . . amounting altogether to a thoughtless

disregard of consequences or a heedless indifference to the

safety of others." The jurors also knew that Bauberger had

conceded guilt to involuntary manslaughter, including its

lower culpable negligence standard, making malice the central

disputed issue before them. 

Given these circumstances, it is unlikely the jurors seized

on isolated dictionary definitions to transmute the malice standard — which they knew to be the disputed issue in the case

—into the culpable negligence standard, to which Bauberger

had already conceded. In other words, Bauberger’s verdict

was not substantially affected because the dictionary definitions, viewed both in light of the instruction as a whole and

in light of the entire trial, did not materially alter the malice

standard.

2.

We also look to the strength of the evidence in assessing

whether the dictionary use substantially and injuriously

affected Bauberger’s verdict. See McNeill, 476 F.3d at 226

(King, J., concurring in part and concurring in the judgment);

id. at 229 (Gregory, J., dissenting in part and concurring in

part). This approach makes sense: if the evidence presented

was such that the issue of malice was not likely a close one,

it is less likely that the error impacted the jury’s decision.

On this score, Bauberger’s claim to prejudice is particularly

weak. His is the paradigmatic case of second-degree murder

via drunk driving. As detailed above, he had several prior

drunk driving convictions, prior court orders not to drive, and

12 BAUBERGER v. HAYNES
a revoked license on the night in question. He stipulated to a

high blood-alcohol content and admitted knowledge of alcohol’s dangerous effects upon drivers. He also drove at a high

speed, into oncoming traffic, and in disregard of several signs.

North Carolina courts have routinely accepted evidence less

formidable than this in upholding second-degree murder convictions. See, e.g., Rich, 527 S.E.2d at 304 (finding sufficient

evidence of malice where the defendant "drove his vehicle at

a high rate of speed while impaired, on the wrong side of the

road, in a no-passing zone and in violation of right-of-way

rules"); State v. Westbrook, 623 S.E.2d 73, 78-79 (N.C. Ct.

App. 2005) (finding sufficient evidence of malice where the

defendant had a prior DWI conviction and sped through a

traffic light on the wrong side of the road). While we are not

analyzing Bauberger’s conviction for the sufficiency of the

evidence, such compelling evidence of malice makes it considerably less likely that the dictionary use affected the jury’s

ultimate decision.

Bauberger discounts the importance of this evidence by

pointing to the struggles the jury apparently had in reaching

its decision. He contends that the actual jury’s decisionmaking process — its requests for printed instructions, its foreperson’s decision to retrieve the dictionary, and its initially

divided votes—is what counts under Brecht, not the actions

of a hypothetical jury looking at the evidence. We agree in

principle and have accordingly looked to the jury’s difficulty

in reaching a decision in assessing prejudice in prior dictionary use cases. See McNeill, 476 F.3d at 226 (King, J., concurring in part and concurring in the judgment); id. at 229

(Gregory, J., dissenting in part and concurring in part).

However, as applied here, this principle cannot do the work

Bauberger sets out for it because the record of the jury’s

deliberations cannot bear this much weight. The jurors heard

the definitions only an hour into their deliberations. And yet

despite Bauberger’s contentions that the definitions lowered

the malice standard to a level to which Bauberger had essenBAUBERGER v. HAYNES 13
tially conceded, the jury still needed an additional four hours

before reaching a decision. This timeline tells us little about

the issues around which the jurors’ struggles revolved. We are

unwilling ultimately to put dispositive weight on a jury’s

ambiguous actions. That would be altogether too speculative.

Where the modified instruction fully conveyed the gist of

North Carolina law and where the evidence presented was so

strong, it takes clearer evidence of jury difficulty than this to

satisfy Brecht.

IV.

"The principle that collateral review is different from direct

review resounds throughout [the Supreme Court’s] habeas

jurisprudence," Brecht, 507 U.S. at 633, and understandably

so. Casually upending state convictions in federal court

threatens "finality, comity, and federalism," Fry, 551 U.S. at

116, words which singly and together convey a sense of

respect toward state judiciaries and the significant responsibilities assigned them. Thus we have respected state judgments

where an error’s impact, considered in the context of the trial

as a whole, was not significant. See, e.g., Golphin, 519 F.3d

at 190-92 (overwhelming evidence rendered any error from

admitting a confession harmless under Brecht); Wilson v.

Ozmint, 357 F.3d 461, 469 (4th Cir. 2004) (sentencing record

rendered any error from not admitting one mitigating statement harmless under Brecht).

The error we assume arguendo occurred at Bauberger’s

trial does not justify the relief he now seeks. Neither the court

nor the government had any role in bringing about the erroneous dictionary use. The potentially modified instruction, taken

as a whole, conveyed the essence of North Carolina law

regarding malice. And Bauberger’s disturbing driving record,

combined with his activities on the night of the accident,

would more than permit a jury to find a "mind utterly without

regard for" the life-threatening and ultimately life-ending

risks created by his conduct. Given these circumstances, there

14 BAUBERGER v. HAYNES
was no substantial and injurious effect on his verdict from the

jurors’ dictionary reading.3 The district court’s order granting

Bauberger the writ is therefore reversed and the case

remanded with directions to dismiss the petition.

REVERSED AND REMANDED

KEITH, Senior Circuit Judge, dissenting:

I respectfully dissent from the majority’s opinion. It is axiomatic that the Constitution prohibits jurors from going outside of the record to independently determine the standards

that are to be used when deciding an accused person’s guilt

or innocence. This is based on many sound principles; most

importantly, the reality that such standards frequently differ

from the governing rule and, thus, undermine the basic precept that all persons are guaranteed due process and equal

protection under the law. Such concerns are not to be taken

lightly. Were we to treat such violations cavalierly, it would

open the floodgates to jurors ignoring the instructions of the

court and, in essence, the responsibilities entrusted them by

the Constitution. 

I. ANALYSIS

As the majority notes, the appropriate question when considering a defendant’s petition for writ of habeas corpus is

whether the state court’s decision was contrary to, or involved

an unreasonable application of clearly established federal law.

See 28 U.S.C.S. § 2254(d)(1). "Clearly established federal

3To the extent the dissent wishes to ascribe some larger significance to

our holding, we should note simply that we have assumed for purposes of

argument the existence of the error and rested decision upon the application of the Brecht standard to the facts and circumstances of the case. The

deference due state court judgments of conviction upon collateral attack

has of course not absolved the court of the need to conduct a careful

review of the matter, and we thank our distinguished colleague in dissent

for his willingness to do likewise. 

BAUBERGER v. HAYNES 15
law" under § 2254(d)(1) refers to the governing legal principle or principles set forth by the Supreme Court at the time

the state court rendered its decision. Bell v. Cone, 535 U.S.

685, 698 (2002); Williams v. Taylor, 529 U.S. 362, 405, 413

(2000). 

Even if the state court proceedings violated clearly established law, the court may not grant a defendant’s petition for

relief if the error was harmless. Jones v. Polk, 401 F.3d 257,

265 (4th Cir. 2005). The habeas petitioner will be entitled to

relief if a habeas court is "in grave doubt about whether a trial

error of federal law had substantial and injurious effect or

influence in determining the jury’s verdict." O’Neal v.

McAninch, 513 U.S. 432, 436 (1995) (internal quotation

marks and citation omitted). "[G]rave doubt exists when, in

the relevant circumstances, the question is so evenly balanced

that the reviewing court finds itself in virtual equipoise on the

harmlessness issue." Barbe v. McBride, 521 F.3d 443, 461

(4th Cir. 2008) (internal quotation marks and citations omitted). The test is whether it can be said with fair assurance that

not a single juror’s decision was swayed by resort to the

extrinsic influence. Parker v. Gladden, 385 U.S. 363, 366

(1966) (A defendant is "entitled to be tried by 12, not 9 or

even 10, impartial and unprejudiced jurors."); Fullwood v.

Lee, 290 F.3d 663, 678 (4th Cir. 2002) ("[I]f even a single

juror’s impartiality is overcome by an improper extraneous

influence, the accused has been deprived of the right to an

impartial jury."); Lawson v. Borg, 60 F.3d 608, 613 (9th Cir.

1995) (noting that if even one juror was improperly influenced the verdict must be reversed).

A. THE TRIAL COURT UNREASONABLY APPLIED ESTABLISHED SUPREME COURT PRECEDENT. 

The Sixth Amendment provides, in relevant part, that "the

accused shall enjoy the right to a . . . trial[ ] by an impartial

jury . . . [and to] be confronted with the witnesses against

him." U.S. CONST. AMEND. VI. The right to trial by an impar16 BAUBERGER v. HAYNES
tial jury "guarantees . . . a fair trial by a panel of impartial,

indifferent jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961)

(internal quotation marks omitted). This right prohibits "any

private communication, contact, or tampering directly or indirectly, with a juror during trial about the matter pending

before the jury." Remmer v. United States, 347 U.S. 227, 229

(1954). 

As the Fourth Circuit has interpreted the relevant Supreme

Court precedent, all influences, outside the record, on a

juror’s decisions are not necessarily prohibited. The Supreme

Court has clearly established that while external influences on

a jury’s deliberations are prohibited, internal ones are permissible. Robinson v. Polk, 438 F.3d 350, 362 (4th Cir. 2006). 

Under established Supreme Court case law, an influence is external if it (1) is extraneous prejudicial

information; i.e., information that was not admitted

into evidence but nevertheless bears on a fact at

issue in the case or (2) is an outside influence upon

the partiality of the jury, such as private communication, contact, or tampering . . . with a juror. 

Id. at 363 (internal quotation marks and citations omitted).

Examples of internal influences include alcohol or drugs

taken by a juror, Turner, 379 U.S. at 466, or Bible readings

which a juror relies upon for the purpose of "examining his

or her own conscience from within," Robinson, 438 F.3d at

363-64.

It is clear under the Supreme Court’s precedents that when

the jury relies on a source outside of its own knowledge or

beliefs, not presented at trial or by the trial judge as part of

his or her instructions, to determine what relevant law to

apply, the jury has been subject to an "external influence" in

violation of the Sixth Amendment to the United States Constitution. Rogers v. United States, 422 U.S. 35 (1975) (finding

violation of the Sixth Amendment where the court, without

BAUBERGER v. HAYNES 17
consulting the defendant, provided further instruction to the

jury which the jury then relied on in convicting the defendant). See also Tanner v. United States, 483 U.S. 107, 117-18

(1987) (noting the distinction between "external" influences,

such as a juror reading a newspaper or hearing prejudicial

statements from others, and "internal" influences); Parker,

385 U.S. at 364-66 (finding that a bailiff’s statement to jurors

that the defendant was a "wicked fellow" and "guilty" constituted an "outside influence" that violated the defendant’s

Sixth Amendment right to fair trial and confrontation because

"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"); Turner v. Louisiana, 379

U.S. 466, 473 (1965) (finding a violation of defendant’s Sixth

Amendment rights where two deputies who testified against

him were assigned to guard, and fraternized with, the jury);

Remmer v. United States, 347 U.S. 227, 229 (1954) (stating

that "private communication, contact, or tampering" with the

jury is presumptively prejudicial); Mattox v. United States,

146 U.S. 140, 149 (1892) (stating that "in capital cases . . . the

jury should pass upon the case free from external causes tending to disturb the exercise of deliberate and unbiased judgment").

Unlike ingesting alcohol or drugs or reading a Bible to settle one’s conscience, looking up legal terms to apply in the

decision-making process is not merely an "internal" matter

that merely affects how one feels or facilitates an examination

of what one already thinks or believes. Rather, in this case,

the jury in considering the dictionary’s definitions was consulting an external source — the dictionary — specifically

because they found their internal knowledge to be insufficient. See Robinson, 438 F.3d at 364 (external influences

impart pressure or knowledge on "a juror apart from the juror

himself, the reading of Bible passages invites the listener to

examine his or her own conscience from within."). Had the

18 BAUBERGER v. HAYNES
jury had the knowledge within itself, it would not have found

it necessary to consult the dictionary in the first place. 

Likewise, unlike reading the Bible or ingesting alcohol or

drugs, consulting the dictionary to determine the applicable

legal principle was not merely incidental to the issues before

the jury, but was directly relevant as the jury looked up words

it was instructed to apply. See id. at 363 (finding that juror’s

reading of the Bible did not require reversal of the conviction

because "the Bible had no bearing on any fact relevant to sentencing, and was therefore not tantamount to ‘evidence’ that

was used against him at sentencing."). Any doubt concerning

the correctness of this conclusion is all but vitiated in a situation such as this where the defendant has conceded all but one

legal element and the jury acquired information about this one

legal element at issue.

The cases the state provides, in response, are clearly distinguishable. In none of the cases did the jurors rely on an influence to resolve a legal question or factual dispute relevant to

the case before it. Wolfe v. Johnson, 565 F.3d 140 (4th Cir.

2009) (finding no error where juror brought pictures of his

son into jury room and another juror spoke with his wife);

Robinson, 438 F.3d at 364 (finding no clearly established law

prohibiting a juror from relying on Bible not to garner any

external fact or legal principle merely to reflect on his own

conscience); Lynch v. Polk, 204 F. App’x. 167 (4th Cir. 2006)

(same). The state’s reliance on the aforementioned cases suffers from the flawed assumption that merely because the

influence of some materials may not violate the Sixth Amendment, the consideration of any and all external material does

not violate the Sixth Amendment. 

Beyond citing these cases, the state provides no explanation

as to why it believes that a dictionary used to define the element at the center of trial constitutes a permissible internal

influence as opposed to an impermissible external influence.

Rather, the state simply asserts that no case has specifically

BAUBERGER v. HAYNES 19
found that a jury’s use of a dictionary to define the specific

legal terms at issue in this case violates the Sixth Amendment.

Accordingly, it concludes that the issue in this case is not

clearly established.

This line of argument misconstrues the relevant legal principle. "[T]he relevant Supreme Court precedent need not be

directly on point, but must provide a ‘governing legal principle’ and articulate specific considerations for lower courts to

follow when applying the [relevant] precedent." Quinn v.

Hayes, 234 F.3d 837, 844 (4th Cir. 2000) (citing Williams v.

Taylor, 529 U.S. 362, 413 (2000)); see Panetti v. Quarterman, 551 U.S. 930, 953, (2007) ("That the standard is stated

in general terms does not mean the application was reasonable. [The statute] does not ‘require state and federal courts

to wait for some nearly identical factual pattern before a legal

rule must be applied.’"); Lockyer v. Andrade, 538 U.S. 63, 76,

(2003) ("Section 2254(d)(1) permits a federal court to grant

habeas relief based on the application of a governing legal

principle to a set of facts different from those of the case in

which the principle was announced.").1

Finally, this conclusion is buttressed by the decisions of

other courts which similarly have found that the reliance of a

jury on a dictionary in defining the applicable legal principles

violates the Sixth Amendment. See United States v. Duncan,

598 F.2d 839 (4th Cir. 1979); McNeill v. Polk, 476 F.3d 206

(4th Cir. 2007) (two of three judges on panel finding that juror

relied on improper external influence by consulting dictionary

for definition of mitigate) (King, J., concurring in judgment)

(Gregory, J., dissenting in judgment); Marino v. Vasquez, 812

1The state posits in its reply brief that it is not arguing that the Supreme

Court must have decided an identical issue before a federal court may

grant a petition for habeas relief, merely that the Supreme Court has not

decided that looking up the words which the jurors looked up in this case

violated the Sixth Amendment. This argument is obviously internally

inconsistent. The state at once argues that it is not arguing that there must

be an identical case and then complains that there is not an identical case.

20 BAUBERGER v. HAYNES
F.2d 499, 505 (9th Cir. 1987) ("[U]nauthorized reference to

dictionary definitions constitutes reversible error which the

State must prove harmless beyond a reasonable doubt.");

United States v. Kupau, 781 F.2d 740, 744 (9th Cir. 1986),

cert. denied, 479 U.S. 823 (1986) (same).2

Accordingly, while the majority assumes, without deciding

that the jury’s conduct violated the Sixth amendment, no such

assumptions are necessary. Under both the Supreme Court’s

and this Circuit’s jurisprudence, such conduct is unconstitutional. 

B. THE ERROR HAD A SUBSTANTIAL AND INJURIOUS EFFECT

ON THE DEFENDANT.

Upon assuming that the jurors’ conduct violated the Sixth

amendment, the majority erroneously rejects Bauberger’s

petition on the grounds that any such error was not prejudicial

to him. 

In Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d

919 (10th Cir. 1992), the Tenth Circuit set out a five part test

to use when determining whether a lower court’s error is prejudicial. The test assesses:

(1) The importance of the word or phrase being

defined to the resolution of the case; (2) The extent

to which the dictionary definition differs from the

jury instructions or from the proper legal definition;

(3) The extent to which the jury discussed and

emphasized the definition; (4) The strength of the

2As the district court noted, "[t]he unreasonableness of a state court’s

application of . . . [the relevant] Supreme Court jurisprudence cannot be

established by decisions of lower federal courts or state courts. [However],

the analysis of these decisions is persuasive in the objective inquiry before

the court." Bauberger v. Haynes, 666 F. Supp. 2d 558, 563 (M.D.N.C.

2003) (internal citation omitted). 

BAUBERGER v. HAYNES 21
evidence and whether the jury had difficulty reaching a verdict prior to introduction of the dictionary

definition; and (5) Any other factors that relate to a

determination of prejudice.

Id. at 924. The test was subsequently adopted by the majority

of the judges of a panel of this circuit. McNeill, 476 F.3d at

226, 229. However, the history of this circuit’s consideration

of these factors is not so nascent. The Supreme Court and the

Fourth Circuit have long considered each of the factors set out

in Mayhue and adopted in McNeill when considering the prejudicial effect of constitutional violations. Henderson v. Kibbe,

431 U.S. 145, 154 (1977)(examining the difference between

the instruction given and the instruction that should have been

given in determining prejudice); Barbe, 521 F.3d at 459-60

(explaining that the trial court’s error prevented the defendant

from cross-examining the prosecution’s expert as to a matter

"crucial to his presentation of an effective defense"); Fitzgerald v. Greene, 150 F.3d 357, 366 (4th Cir. 1998) (noting that

a potentially biased juror’s impact was minimal as the jury

rejected his sentencing suggestion and the jury had made its

decision before he made potentially prejudicial statements);

Sherman v. Smith, 89 F.3d 1134, 1143 (4th Cir. 1996) (concluding that "in light of all the evidence presented at trial, [the

court] harbor[ed] no grave doubt" as to the minimal prejudicial effect of the juror’s "site visit.") (internal quotation marks

and citations omitted); Stockton v. Virginia, 852 F.2d 740,

746 (4th Cir. 1988) (finding comment to jury by restaurant

owner prejudicial where it "bore on the exact issue . . . that

the jurors were deliberating on at the time"); Duncan, 598

F.2d at 866 (finding error was not prejudicial as the foreman

immediately squelched any discussion of dictionary definition); Cairns v. Johnson, 267 F. App’x 240, 247 (4th Cir.

2008) (noting that potentially erroneously excluded journals

were relevant to the central issue in the case). Given the wellfounded basis for the application of the factors the test lists,

the parties, likewise, agree on its applicability. 

22 BAUBERGER v. HAYNES
Nonetheless, the majority focuses its analysis primarily on

the extent to which the dictionary definition differed from the

jury instruction — which in and of itself was substantial —

and the strength of the evidence supporting Bauberger’s conviction. It meanwhile attaches no weight to the centrality of

the issue for which the jury sought assistance and the length

of time for which the jury was exposed to the erroneous definitions, both of which past courts of this circuit have deemed

relevant. Consideration of such in addition to a careful weighing of the important differences between the dictionary and

legal definitions of the examined terms establishes that both

the magistrate and district judges correctly concluded "grave

doubt" existed as to the prejudicial effect of the constitutional

error. 

As to the first factor, the parties do not dispute that the

words the jurors looked up in the dictionary were of supreme

importance in this case. As noted above, Bauberger conceded

every other element, but whether he had acted with malice —

the precise term the jury sought additional help in defining.

The parties, as the majority notes, do disagree as to the

extent the definitions provided in the dictionary for the words

"recklessly" and "wantonly" differ from their legal counterparts. The dictionary defined "recklessly" as "lack of due caution." App. 157. The dictionary defined "wantonly" as an

"arrogant recklessness of justice or the feelings of others." Id.

Bauberger argues that the jury’s use of these definitions effectively lowered the standard for malice to something more

equivalent to negligence. The state argues, and the majority

agrees, that the standard imposed by these terms is virtually

identical to their legal counterpart.

To understand the effect these definitions had on the jury,

one must examine, as the majority does, the trial judge’s

charge to the jury on malice, of which the disputed words

were part. The judge’s instruction to the jury on malice provided that "[m]alice arises when an act which is inherently

BAUBERGER v. HAYNES 23
dangerous to human life is intentionally done so recklessly

and wantonly as to manifest a mind utterly without regard for

human life and social duty and deliberately bent on mischief."

Tr. Vol. IV at 38 (Emphasis added). The trial judge contrasted

this standard with the more lenient one applicable to involuntary manslaughter, with which Bauberger was also charged.

To be guilty of involuntary manslaughter, the defendant must

have acted with "culpable negligence." "Culpable negligence," the court explained, requires either (1) a "willful,

wanton, or intentional" violation of law governing the operation of a motor vehicle, or (2) an "inadvertent or unintentional

violation of the law" that is "accompanied by recklessness of

probable consequences of a dangerous nature when tested by

the rule of reasonable foresight amounting altogether to a

thoughtless disregard of consequences or a heedless indifference to the safety of others." Trial Tr. Vol. VI at 21-22. The

trial judge also instructed the jury on the meaning of "reckless" in the context of reckless driving, which required that

the jury find Bauberger "acted carelessly and heedlessly in

willful or wanton disregard of the rights or safety of others."

Id.

The North Carolina courts have clearly stated, as the majority acknowledges, "malice" for the purposes of murder

requires "a high degree of recklessness." State v. Rich, 527

S.E.2d 299, 303 (N.C. 2000). However, even in contrast with

the trial court’s instruction regarding the meaning of "reckless" in the context of reckless driving, the dictionary definition — lack of due caution — sets a low standard. It seems

clear that a person may have acted without due caution, but

not necessarily in willful or wanton disregard of the rights or

safety of others. Stated otherwise, there may be many circumstances in which a person may not have exercised proper caution (thereby acting recklessly as defined by the dictionary)

but may not necessarily have acted with willful or wanton disregard for the rights or safety of others. Bauberger correctly

points out that the dictionary’s definition of recklessness,

24 BAUBERGER v. HAYNES
because it does not require that the disregard for others be

willful or wanton, resembles the legal standard for negligence.

North Carolina courts have similarly interpreted wantonness, in the criminal context, as requiring more than a mere

unintentional disregard of others. "Wantonness . . . connotes

intentional wrongdoing. . . . Conduct is wanton when in conscious and intentional disregard of and indifference to the

rights and safety of others." State v. Williams, 199 S.E.2d 409,

412 (N.C. 1973) (internal quotation marks and citation omitted) (emphasis added). Furthermore, "[t]he words ‘willful’

and ‘wanton’ have substantially the same meaning when used

in reference to the requisite state of mind for a violation of a

criminal statute." State v. Davis, 356 S.E.2d 607, 610 (N.C.

1987) (citing Williams 199 S.E.2d at 412). “ ‘Willful’ as used

in criminal statutes means the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of the law." Id. at 610.

The dictionary in contrast defined "wanton" as the "arrogant

recklessness of justice or the feelings of others." App. 157.

Again, the dictionary definition imposed a more lenient standard. Not every act which is in arrogant disregard of others

will necessarily involve a conscious and intentional disregard

of others. Rather, as noted above, the dictionary’s definition,

because it does not require that the disregard be conscious or

intentional, resembles the lower standard of negligence. 

The state argues, and the majority agrees, that even if the

jury attached the lower standard associated with each of the

term’s dictionary definitions, when the terms are read in the

context of the overall instruction for malice their insertion

could only have had a minimal effect. The majority emphasizes that a reading of the instruction as a whole shows that

the criminal act must still have been "intentionally done" and

"manifest[ed] a mind utterly without regard for human life

and social duty and deliberately bent on mischief." In actuality, the majority by simply emphasizing that these words are

present in the instruction, regardless of their placement, views

BAUBERGER v. HAYNES 25
them in isolation and out of context. In doing so, it ignores

both the instruction’s text and the facts of this case. 

The instruction, on its face, has two separate parts. Under

the instruction’s terms, for an individual to have acted with

malice, he must not only have committed the act intentionally,

but also acted in willful or wanton disregard of the risk his

actions posed, i.e., he must have been aware of the risk his

actions entailed and disregarded them nonetheless. As noted,

the dictionary definition of reckless — lack of due caution —

requires no such awareness. Accordingly, as the instruction

read to the jury, Bauberger must a) have committed an intentional act; and b) done so in spite of the fact a grave danger

existed — whether or not he was aware of it. To simply conflate the instruction’s two parts, and assume the jury likewise

did so, ignores the instruction’s plain construction. 

Importantly, this conclusion is further undercut by the

jury’s actions. Had the jury imputed "intentionally" to the

whole instruction, as the majority suggests, it is not clear why

the foreman would have so felt the need to define the following scienter terms that he, on his lunch break, would have

gone out of his way to obtain further assistance. 

Likewise, pursuant to the third factor, there is strong reason

to believe that the jury placed significant emphasis on the

terms for which they garnered definitions. The relevant considerations under this factor include the number of jurors

exposed to the potentially prejudicial information, at what

point in their deliberations they received the violative material

and the length of time they considered it. See, e.g., Fitzgerald,

150 F.3d at 366 (noting that a potentially biased member’s

impact was minimal as jury rejected her sentencing suggestion and they had made their decision before she made potentially prejudicial statements).

It is undisputed that several members of the jury requested

further instruction from the judge on the definition of malice,

26 BAUBERGER v. HAYNES
of which the terms they looked up are part. Likewise, the parties do not dispute that once the foreman retrieved the dictionary, the definitions for the disputed terms were shared with

all twelve of the jurors. It is relevant that it was the foreman

who was responsible for obtaining the dictionary and sharing

it with other jurors. That he was the party providing the definitions suggests that the other jurors may have attached additional weight to the external information. See Mayhue, 969

F.2d at 925. Finally, it is notable that the foreman obtained the

definitions relatively early in the jury’s deliberative process.

The state argues, and the majority agrees, the fact that the

jury deliberated for more than four hours after acquiring the

dictionary definitions before reaching a verdict indicates that

the dictionary had little or no effect. While this is relevant, it

is not as conclusive as the state presumes. The state misconstrues the appropriate question before the court. As noted

above, the relevant question is merely whether one individual

was affected by the dictionary. Accordingly, even if one vote

shifted as a result of the dictionary’s use, the violation had a

prejudicial effect. 

The fourth factor — the strength of evidence and the difficulty of the jury in reaching a verdict — weighs in favor of

the state. As the majority notes, there is substantial evidence

that the defendant acted with malice.

Nonetheless, there is evidence that the jury, despite the

aforementioned evidence, struggled to decide whether malice

existed. The jury requested additional clarification as to the

meaning of the term "malice." During lunch, the foreman took

the unusual step of going to the library to acquire a dictionary

to aid the jury in determining whether the evidence was sufficient to support a finding of malice. However, even after

returning from lunch, receiving the additional materials

requested and reviewing the dictionary, the jury needed multiple votes and an Allen charge before it found Bauberger

guilty.

BAUBERGER v. HAYNES 27
Considering all these factors, the question of whether the

jury’s consideration of the dictionary was prejudicial is a

close question. Factors weighing in favor of a finding of prejudice are that the jury sought evidence directly relevant to the

sole disputed legal issue, and the substantial difference

between the terms as defined in the dictionary and as they are

defined by North Carolina Courts. However, the substantial

evidence justifying a finding of malice weighs against a finding of prejudice. Ultimately, my conclusion that the constitutional violation was prejudicial is based on two realities. First,

while, as a legal matter, there may have been substantial evidence of malice, the jury obviously did not see the situation

as such. As noted, the foreman felt it necessary to go to the

library, and the other members of the jury likewise felt it necessary to request additional information regarding the legal

rules to apply. Even once these pieces of information had

been provided, only after an Allen charge and multiple votes

did the jury reach its conclusion. Second, as noted above, the

defendant, to garner a new trial, need not prove that the result

was a proximate result of the impropriety, but merely that the

evidence is in virtual equipoise that his trial may have been

affected. 

Given the centrality of the issue to the case, the substantial

difference in the standard applied and that which was appropriate and the jury’s struggles to resolve the issue, I, like the

district court, find that Bauberger has raised grave doubt as to

whether the jury’s decision was in fact unbiased.

II. CONCLUSION

The Constitution’s protections exist not only because they

ensure that all persons are treated fairly and equally by our

criminal justice system, but because they speak to the integrity and values of the nation and its residents. Therefore, when

these rights are infringed, it hurts us all. 

Today’s majority opinion concerns me deeply. With it, we

embark down a dangerous road which permits jurors to go

28 BAUBERGER v. HAYNES
outside of the record to determine guilt or innocence. Such

conduct threatens to open a Pandora’s box of unconstitutional

behavior. It creates the potential for a system in which any

juror may determine another human being’s guilt on nothing

more than a whim; a system more worthy of Kafka than the

Constitution. With these thoughts in mind, I respectfully DISSENT from today’s majority opinion.

BAUBERGER v. HAYNES 29