Near v. Cunningham, 8713.

• Decision Date: 07 January 1963
• Docket Number: No. 8713.,8713.
• Citation: 313 F.2d 929
• Parties: Clyde Raymond NEAR, Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

313 F.2d 929 (1963)

Clyde Raymond NEAR, Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellee.

No. 8713.

United States Court of Appeals Fourth Circuit.

Argued September 27, 1962.

Decided January 7, 1963.

W. A. Hall, Jr., Richmond, Va. (Robert Randolph Jones, and W. Griffith Purcell, Richmond, Va., on brief), for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Va. (Robert Y. Button, Atty. Gen. of Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, J. SPENCER BELL, Circuit Judge, and JOHN PAUL, District Judge.

J. SPENCER BELL, Circuit Judge.

This is an appeal from a denial by the District Court for the Eastern District of Virginia of a petition for a Writ of Habeas Corpus.

On December 8, 1958, Clyde Raymond Near, the petitioner, was indicted for murder by the grand jury of Powhatan County, Virginia. On January 6, 1959, an attorney was appointed to represent petitioner. Trial was held in the Circuit Court of Powhatan County on May 26 and 27, 1959. The jury found Near guilty of murder in the first degree, and fixed punishment at death. On August 4, 1959, the Circuit Court of Powhatan County, after taking testimony and hearing argument, denied Near's motion to set aside the verdict upon the grounds, among others, that the jury had been permitted to mingle with the spectators during the recesses of the trial and had been prejudiced by remarks made within their hearing. On October 14, 1959, and November 27, 1959, Near filed further motions to set aside the judgment because of alleged misconduct of a juror who had discussed the case with several persons and had listened to news telecasts concerning the trial, contrary to the judge's instructions. The Circuit Court of Powhatan County denied both motions without making any findings of fact or entering any written order in connection therewith. The Supreme Court of Appeals of Virginia affirmed the judgment of August 4, 1959. Near v. Commonwealth, 202 Va. 20, 116 S.E.2d 85 (1960), and the Supreme Court of the United States denied certiorari. Near v. Virginia, 365 U.S. 873, 81 S.Ct. 907, 5 L.Ed. 2d 862 (1961).

Near filed a petition for a Writ of Habeas Corpus in the Supreme Court of Appeals of Virginia in which he alleged the same grounds as are alleged in the instant petition. That Court denied the petition on November 22, 1961. In its order the Court responded to the allegation that prisoner was not present when the decision was made to allow the jury to separate by pointing out that the formal entries on the record showed that the prisoner was personally present at every stage of the trial, and that under its rules the record may not be controverted. The Supreme Court of the United States denied certiorari. Near v. Cunningham, 369 U.S. 862, 82 S.Ct. 951, 8 L.Ed.2d 19 (1962). Near then brought the instant petition for a Writ of Habeas Corpus under 28 U.S.C.A. § 2241 et seq.

The petition alleges two grounds for issuance of the writ. It is claimed that petitioner was denied due process of the law in that he was not present in the trial judge's chambers when the judge, counsel for petitioner, and the attorney for the Commonwealth agreed that the jury would not be sequestered and kept together under the custody of an officer during recesses of the court. It is also alleged that Near's constitutional right to due process of the law was denied him in that the verdict of the jury below was prejudiced by statements of spectators on the courthouse lawn made in the presence of the jurors during recesses of the trial, or that at the least, the integrity of the verdict was thereby impugned to a degree sufficient to make it void under the Fourteenth Amendment to the United States Constitution. It is alleged that the statements made included opinions of the spectators as to the proper punishment of the petitioner, including opinions that the petitioner should be killed.

Counsel have agreed as to the substance of the testimony of each witness taken at the trial and at the hearing of August 4, 1959.

I

Petitioner's first claim is based on the contention that due process guarantees to an accused the right to be present at every stage of his trial for a felony, especially where capital punishment is involved. So fundamental is this right that it may not be waived. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L. Ed. 262 (1884). The courts of Virginia have jealously guarded this right in a long line of decisions culminating in Noell v. Commonwealth, 135 Va. 600, 115 S.E. 679, 30 A.L.R. 1345 (1923). In that case, Justice Kelly, after pointing out that the Virginia statute (Sec. 19.1-240 Code of Va. (1950)) was merely declaratory of the common law principle, held that "* * * conformity to the rule is essential to jurisdiction, and the accused cannot waive it". Citing with approval Hopt v. Utah, supra.

The record of the original trial showed two entries with respect to the prisoner's presence during the trial. An earlier entry showed that the Commonwealth Attorney and counsel for the defendant, with the judge, went into the judge's chambers, where it was agreed that the jurors should not be kept together during the recesses of the trial. A final entry on the record states as follows:

"The Court certifies that at all times during the trial of this case the accused was personally present."

What was meant by the latter entry is, therefore, not clear. It could mean that, contrary to his claim, the prisoner was in fact present during the conference in the judge's chambers, or it could mean simply that the prisoner was personally present on all occasions which the entrant conceived to be a part of the trial and that this did not include the conference in the judge's chambers. There is good reason, therefore, to think that had their rules of procedure not been thought to forbid the Supreme Court of Appeals of Virginia to go behind the formal declaration of the record for the purpose of clarifying it, the prisoner might well have succeeded in showing that he was not, in fact, present when an important decision was made, namely to allow the jury to separate during the trial. If the Court were so convinced, Near would have been entitled to his writ.

In any event, in a Habeas Corpus proceeding in the United States Courts, the petitioner is entitled to impeach such flat recitals of record, and this right was extended to state prisoners in Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135 (1954). Especially should the right be recognized where the record is ambiguous.

Under the Virginia statute, it is true whether to allow the jury to separate is a matter within the trial judge's discretion (Sec. 19.1-213 Code of Virginia (1950)). However, it is not to be presumed that the discretion is to be exercised in a vacuum. The fact that the Court consulted with counsel on the point is indicative of this. No decision made during the trial was more fateful to the defendant than this. If the allegations of the petition are found to be true then the question considered and decided in Near's absence had direct consequences gravely affecting his case.

Since Hopt v. Utah, supra, the Supreme Court has on a number of occasions been called upon to determine when, so far as the Fourteenth Amendment is concerned, the presence of the defendant is a requirement of due process. Here the conference involved more than a discussion of legal principles which the defendant could not be expected to understand or to contribute anything of value. Deschenes v. United States, 224 F.2d 688 (10 Cir., 1955). Nor was it simply the taking of a verdict as in Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915). There can be no doubt that the petitioner's right to a fair and just hearing was thwarted if the allegations of his petition are established. What occurred out of Near's presence was not a mere showing of the scene of the crime as in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934).¹ There it was held that such a showing is not a part of the trial. But here a decision was taken out of the presence and without the knowledge of the defendant to surrender one of his fundamental rights. Moreover, as it turned out this was no inconsequential matter, for thereby the jurors were exposed to hostile influences. Strangers would not be permitted to make comments to the jury about the defendant in the courtroom; it is no less offensive to allow such comments to be made in the jurors' presence on the courthouse lawn. Absence from the conference cannot, in the light of later events, be dismissed as a mere technicality.

We are not here called upon to decide that the mere fact of the prisoner's absence from the conference — nothing else appearing — would of itself result in such an unfair and unjust trial as to violate the provisions of the Fourteenth Amendment, but this fact, combined with the allegations of serious consequences which are said to have flown from the decision, raise issues on the face of the petition which if true would entitle the petitioner to a new trial.

II

Petitioner asserts as an independent second claim that his constitutionally guaranteed right to due process of the law was violated because of the prejudicial out of court statements made to, or within the hearing of, the jurors. The Virginia trial court on August 4th denied a motion for new trial pressed on this ground. The record contains no evidence that the court ruled on two later motions based on other evidence indicating that one juror engaged in conversations and heard a television newscast concerning the trial. The basis for the decision of the trial court in its ruling of August 4, 1959, does not appear in the record. The District Court, upon receipt of this petition for a Writ of Habeas...