Sherman v. Smith

• Decision Date: 17 July 1996
• Docket Number: No. 94-6831,94-6831
• Citation: 89 F.3d 1134
• Parties: Timothy Scott SHERMAN, Petitioner-Appellant, v. William L. SMITH, Warden, Maryland House of Correction-Annex; John Joseph Curran, Attorney General for the State of Maryland, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1134

89 F.3d 1134

Timothy Scott SHERMAN, Petitioner-Appellant, v. William L. SMITH, Warden, Maryland House of Correction-Annex; John Joseph Curran, Attorney General for the State of Maryland Respondents-Appellees.

No. 94-6831.

United States Court of Appeals Fourth Circuit.

Argued April 2, 1996.

Decided July 17, 1996.

ARGUED: Andrew Lewis Frey, Mayer, Brown & Platt, Washington, DC, 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, DC; 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.

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.

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.

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 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, 111 S.Ct. 370, 112 L.Ed.2d 333 (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, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (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.

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, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (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, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (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, 111 S.Ct. at 1262-64. 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, 111 S.Ct. at 1262-66; overbroad jury instructions at the sentencing stage of a capital case, Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); improper admission of evidence at the sentencing stage of a capital case, Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); jury instructions containing erroneous conclusive or rebuttable presumptions, Carella v. California, 491 U.S. 263, 266-67, 109 S.Ct. 2419, 2421-22, 105 L.Ed.2d 218 (1989) (per curiam); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); erroneous exclusion of a defendant's testimony regarding the circumstances of a confession, Crane v. Kentucky, 476 U.S. 683, 691, 106 S.Ct. 2142, 2147, 90 L.Ed.2d 636 (1986); improper restriction on a defendant's right to cross-examine witnesses for bias, Van Arsdall, 475 U.S. at 673, 106 S.Ct. at 1432; denial of a defendant's right to be present at trial, Rushen v. Spain, 464 U.S. 114, 117-19 and n. 2, 104 S.Ct. 453, 454-56 and n. 2, 78 L.Ed.2d 267 (1983) (per curiam); improper comment on a defendant's silence at trial, Hasting, 461 U.S. at 499, 103 S.Ct. at 1975; improper prohibition on the provision of a lesser included offense instruction in a capital case, Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); failure to instruct the jury on the presumption of innocence, Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) (per curiam); improper admission of identification evidence, Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct. 458, 466, 54 L.Ed.2d 424 (1977); erroneous admission of an out-of-court statement of a nontestifying codefendant, Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 1570-71, 36 L.Ed.2d 208 (1973)...