852 F.2d 740 (4th Cir. 1988), 87-4002, Stockton v. Com. of Va.

Docket Nº:87-4002(L), 87-4003.
Citation:852 F.2d 740
Party Name:Dennis Waldon STOCKTON, Petitioner-Appellee, v. COMMONWEALTH OF VIRGINIA; Edward W. Murray, Director, Virginia Department of Corrections, Respondents-Appellants. Dennis Waldon STOCKTON, Petitioner-Appellant, v. COMMONWEALTH OF VIRGINIA; Edward W. Murray, Director, Virginia Department of Corrections, Respondents-Appellees.
Case Date:July 22, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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852 F.2d 740 (4th Cir. 1988)

Dennis Waldon STOCKTON, Petitioner-Appellee,


COMMONWEALTH OF VIRGINIA; Edward W. Murray, Director,

Virginia Department of Corrections,


Dennis Waldon STOCKTON, Petitioner-Appellant,


COMMONWEALTH OF VIRGINIA; Edward W. Murray, Director,

Virginia Department of Corrections, Respondents-Appellees.

Nos. 87-4002(L), 87-4003.

United States Court of Appeals, Fourth Circuit

July 22, 1988

Argued Feb. 1, 1988.

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Frank Snead Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Virginia B. Theisen, Asst. Atty. Gen., Richmond, Va., on brief), for respondent-appellant Commonwealth of Virginia et al.

Louis Martin Bograd (Donald G. Frankel, Kevin S. Marks, Joseph G. Poluka, Pamela K. Chen, Arnold & Porter, Washington, D.C., on brief), for petitioner-appellee Stockton.

Before WIDENER, ERVIN and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

Dennis Stockton was tried before a jury in the Circuit Court of Patrick County, Virginia, for the murder for hire of Kenneth Arnder. The guilt phase of Stockton's trial lasted for two days and, on March 23, 1983, the jury found him guilty of capital murder. The sentencing phase of the trial took place the following day. The jury recommended that Stockton be sentenced to death.

Stockton petitioned for federal habeas relief pursuant to 28 U.S.C. Sec. 2254, seeking to have his death sentence vacated and his conviction overturned. He contends that his sentence was tainted by prejudicial comments made to the jurors during their deliberations. While several members of the jury lunched at the Owl Diner on the day they deliberated Stockton's sentence, the proprietor of the diner approached the jurors and told them, among other things, that "they ought to fry the son of a bitch." We think such communications denied Stockton his right to a fair and impartial jury during the sentencing deliberations. We therefore affirm the district court's judgment vacating Stockton's death sentence. The state shall have the choice of either reducing his sentence to one of life imprisonment or sentencing him anew.

Stockton also claims that he was denied a fair trial on several grounds, including other extrajudicial contacts with jurors during the guilt phase of his trial, the admission of testimony describing his commission of a second murder, improper jury deliberations, and prosecutorial misconduct. We hold that Stockton was not denied a fair trial in the guilt phase of the proceedings, and we affirm the judgment of the district court denying habeas relief on his conviction.


On July 25, 1978, the body of eighteen year old Kenneth Arnder was discovered in a remote area of Surry County, North Carolina. Arnder had been shot in the head and both of his hands had been severed at the wrists. The parties stipulated that the cause of death was either the wound to the head, the severing of the hands, or both.

Stockton was arrested for Arnder's murder on June 25, 1982, in Patrick County, Virginia, a small county in southside Virginia with a population of less than 20,000 people. He was tried in the Circuit Court of Patrick County on March 21 to 24, 1983. His arrest and trial generated considerable local publicity. The print and broadcast media featured reports of the trial and

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pretrial proceedings as well as accounts of investigations connecting Stockton to several local murders, the discovery of the victims' bodies, and Stockton's past criminal history. In one newspaper article, Stockton was labeled "Surry County's public enemy number one" and compared to Charles Manson.

The evidence presented against Stockton at his trial was substantial. Randy Bowman testified that he, Stockton, Ronnie Tate, "Sunshine" Hatcher, and Diane and Tommy McBride were at McBride's home in June of 1978 when Tommy McBride offered Bowman $1,500 to kill the "Arnder boy," who had offended McBride in a drug deal. Stockton offered to do the job because he needed to make money. Stockton and McBride then went into another room together.

Arnder's mother testified that she last saw her son alive on July 20, 1978. That evening Arnder left his mother's home with Stockton to camp out in a picnic area in Patrick County to avoid difficulties arising from his involvement with some stolen property. Arnder's body was found five days later. Further evidence at trial included Robert Gates' testimony that in July of 1979 he witnessed Stockton shoot and kill Ronnie Tate for "running his mouth" about the Arnder killing. There was also testimony that on several occasions Stockton had admitted to killing Arnder.

On March 23, 1983, the jury found Stockton guilty of the murder for hire of Kenneth Arnder. On the following day, pursuant to Virginia's bifurcated trial procedure for capital crimes, the jury fixed Stockton's sentence.

During the sentencing deliberations, the jury broke for lunch. At least two groups of jurors, one group of three women and another of three or four men, ate at the Owl Diner, a restaurant near the courthouse. The atmosphere at the diner was a casual one. One juror recognized two court deputies at a nearby table and James Blackard, a witness subpoenaed to testify at the trial, was seated with his wife in a booth across the aisle from a group of male jurors. The Blackards testified that Glenn Puckett, the owner of the Owl Diner, approached the jurors and inquired whether they had reached a decision yet. One of the men replied that they had all decided except for "one damned woman." Puckett then commented to the jurors that he thought "they ought to fry the son of a bitch." According to the Blackards, Puckett remained and conversed with the jurors for several minutes.

The jurors resumed sentencing deliberations after the lunch break. They concluded that Stockton was likely to "commit criminal acts of violence that would constitute a continuing serious threat to society" and that his conduct was "outrageously or wantonly vile, horrible, or inhuman" and fixed his sentence at death.

The trial court held a post-conviction hearing on June 7, 1983. At the hearing, the court took testimony concerning the Owl Diner incident. The court concluded from the evidence presented that Puckett had asked members of the jury whether they had reached a decision, but that Stockton had suffered no prejudice as a result of that query. The court also indicated that something else may have been said but that the witnesses did not know what it was. The court then entered final judgment against Stockton and imposed the death sentence.

Stockton perfected a direct appeal of his conviction to the Supreme Court of Virginia. The conviction and sentence were affirmed. Stockton v. Commonwealth, 227 Va. 124, 314 S.E.2d 371 (1984). Certiorari was denied by the United States Supreme Court. Stockton v. Virginia, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

After some further state proceedings, Stockton's execution was scheduled for October 3, 1986. Stockton petitioned the United States District Court for the Western District of Virginia for a stay of execution and federal habeas corpus relief. The stay was granted on October 2, 1986. A hearing was then held on the habeas petition, and on June 18, 1987, the district court granted Stockton a writ of habeas corpus vacating his death sentence and granting him a new sentencing hearing or

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a reduction of his sentence to life imprisonment. The Commonwealth appeals and Stockton cross appeals the district court's denial of relief with respect to his conviction.


Glenn Puckett approached a group of jurors while they lunched at the Owl Diner on the day they deliberated Stockton's sentence. After inquiring about the progress of their deliberations, Puckett told the jurors that he thought "they ought to fry the son of a bitch." The import of this comment is the primary issue in this case. 1


The Commonwealth argues that the defendant bears the burden of establishing that unauthorized third party communications with members of the jury resulted in actual juror partiality. It is true that the defendant must first establish both that an unauthorized contact was made and that it was of such a character as to reasonably draw into question the integrity of the verdict. Once such a contact has been established, however, the government bears the burden of demonstrating the absence of prejudice.

The Sixth Amendment guarantees a criminal defendant the right to trial by an impartial jury. No right touches more the heart of fairness in a trial. The fact that there was here no threat or inducement, no invasion of the sanctity of jury room deliberations, does not still the sense that something went awry. The Supreme Court has long recognized the dangers to impartiality posed by unauthorized communications between third parties and members of the jury. Almost a century ago the Court declared that "[p]rivate communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892). In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Court reinforced the rule set forth in Mattox:

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial ... The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant,...

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