Gray v. Hutto, 80-6679

• Decision Date: 06 May 1981
• Docket Number: No. 80-6679,80-6679
• Parties: Michael GRAY, Appellant, v. T. D. HUTTO, Superintendent, Virginia State Penitentiary; Terry Richtmeyer, Superintendent, St. Bride's Correctional Center, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 210

648 F.2d 210

Michael GRAY, Appellant, v. T. D. HUTTO, Superintendent, Virginia State Penitentiary;

Terry Richtmeyer, Superintendent, St. Bride's

Correctional Center, Appellees.

No. 80-6679.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 4, 1981.

Decided April 1, 1981.

Rehearing Denied May 6, 1981.

Karen Breeding Peters, Alexandria, Va. (Zwerling & Shapiro, P.C., Alexandria, Va., on brief), for appellant.

Vera S. Warthen, Asst. Atty. Gen., Richmond, Va. (Marshall Coleman, Atty. Gen. of Virginia, Robert E. Bradenham, II, Asst. Atty. Gen., Richmond, Va., on brief), for appellees.

Before MURNAGHAN and ERVIN, Circuit Judges, and MERHIGE ^*, District Judge.

MURNAGHAN, Circuit Judge:

Found guilty in a state court prosecution of possession of a controlled substance (PCP) with intent to distribute, Gray appeals a denial of habeas corpus by the United States District Court for the Eastern District of Virginia. The application for habeas corpus proceeded on a claim that, during a lunch recess in the one-day trial, one of the jurors told her husband that she thought Gray was guilty.

The matter had first been called to the attention of the state court judge only upon a post-trial motion for a new trial. The state court judge thereupon convened an evidentiary hearing. The juror denied making the statement and asserted that she did not decide whether Gray was guilty until the jury had retired to deliberate. Several persons testified that the juror had in fact expressed an opinion of Gray's guilt and the state court judge assumed, without actually deciding, that the statement was in fact made. However, relying on the testimony of the juror, the trial judge concluded that the statement was harmless. He accepted the juror's insistence that she was not prejudiced and did not decide Gray's guilt prematurely.

There followed the habeas corpus proceeding in the United States District Court for the Eastern District of Virginia. Judge Albert V. Bryan, Jr., on the basis of the facts as the state court found them, declined to issue the writ. He stated: "the court accepts the state court's finding, and the evidence which amply supports that finding, that Mrs. Craigie did not decide the issue of guilt or innocence until after the jury began its deliberations." Judge Bryan also assumed that the juror had expressed a belief of guilt while the trial was still in progress.

Gray, had he not, by his inaction, eroded his position, might have raised a very serious question. "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." Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892). Assuming, as did both the state court judge and the United States District Judge, that the...