Bauberger v. Haynes

MOTZ, and Before WILKINSON I. KEITH, Judges, and DAMON J. Circuit of the Judge United States Senior Circuit February Bauberger William On Circuit, for the Sixth Appeals Court of at a Super party attended Bowl friend’s by designation. sitting of the house. Over the course five or so there, he drank hours was he more than by published and remanded Reversed game Bauberger, ten After the beers. opinion. Judge WILKINSON wrote the condition, despite his intoxicated decided in which majority opinion, Judge MOTZ to drive friend’s He to another house. joined. Judge KEITH wrote a Senior Instead, never it. he drove his Cad- made dissenting opinion.

illac—at speed somewhere around 45 wrong 55 miles per hour—the direction OPINION 421 in ramp Highway down exit off U.S. WILKINSON, Judge: Circuit Winston-Salem, North Carolina. Disre- Bauberger Thomas convict- William was garding “Wrong Not Enter” and “Do second-degree ed murder and assault Way” signs, as the as well honks and deadly weapon inflicting with a serious traveling swerves cars of several injury wrong after he drove his car direction, Bauberger finally proper way ramp, person an exit killing down crashed car into that of William and his wounding Bauberger and another. unsuc- Foy. sustained several Carol William bro- cessfully challenged his conviction murder bones, ken and Carol died within minutes. learning after state court dictionary definitions of read several words government charged Bauberger instructions. judge’s murder and second-degree with assault inflicting a deadly weapon with serious sought then Bauberger federal habeas injury. government At trial intro- § arguing relief under 28 U.S.C. troubled rec- Bauberger’s driving duced jurors’ dictionary use his fed- violated driving-while-im- He prior ord. had two rights eral prejudiced constitutional (“DWI”) convictions, paired as a well his The district agreed verdict. court driving reckless conviction and other driv- granted the writ. Given that the dictio- disregarded He also had offenses. nary materially alter definitions did not to drive prior court orders and was as a whole and that instruction driving night on a revoked license government significant presented evidence Bauberger admitted the collision. that his malice, any may misconduct the night content that 0.20 blood-alcohol did not have committed exert a “substan- and that injurious determining dangers tial ... he was aware effect light driving Brecht while intoxicated. of this jury’s verdict.” v. Abraham- evidence, Bauberger guilt Bauberger conceded filed for federal habeas relief involuntary § man- lesser-included offense U.S.C. 2254. The district but insisted that he slaughter his granted petition, holding that the necessary for a jurors’ lacked the malice second- dictionary use violated Bauberger’s degree North murder conviction under clearly established Sixth Amendment law. prejudiced Carolina and that the error him the dictionary’s because definitions of convicted of second- “recklessly” “wantonly” may have low- deadly assault degree murder and with a government’s ered the proof burden of weapon inflicting injury, serious and he regarding malice. was sentenced to 189 to 236 months came prison. Shortly after the verdict II.

down, however, parties the court the jury may that used a learned have We review the district court’s deci dictionary during its Bau- deliberations. grant sion to de writ novo. Bell v. berger postconviction filed a Motion for Ozmint, (4th Cir.2003). 332 F.3d (“MAR”), Appropriate arguing that Relief We deciding shall assume without impermissible an extra- the North Carolina of Appeals’s Court re- neous influence on and that the jection of Bauberger’s Sixth Amendment lowered govern- to, was “contrary claims or involved an ment’s burden proof regarding malice. of, application clearly unreasonable estab- The MAR ju- court determined from the law, lished Federal by as determined the jury’s foreperson rors’ affidavits that Supreme States,” Court of the United sat- during left the courthouse break delib- isfying the threshold demands for habeas erations, a public library, went relief under the Antiterrorism and Effec- brought back the 1953 edition of Webster’s (“AEDPA”). Penalty tive Death Act Collegiate Dictionary. New He read to § 2254(d)(1); U.S.C. also Golphin see v. other dictionary’s definition Branker, (4th 519 F.3d 189-90 Cir. of several terms in the in- judge’s malice 2008) (leaving unresolved whether but struction not the definition of “malice” unreasonably state court applied federal itself. any law because preju- error did have The MAR denied Bauberger’s court Brecht.) impact so, By dicial under doing relief, quested reasoning jurors’ problems long we skirt associated with actions, though improper, were harmless. unnecessary decisionmaking: constitutional The North Carolina Court of af- Appeals wasting parties’ we avoid and the firmed, reasoning Bauberger’s federal limited “questions courts’ resources on constitutional were not violated be- no effect on the outcome of the cause the definitions “concerned ter- Callahan, case,” Pearson v. 555 U.S. minology, not trial.” developed evidence 808, 818, (2009), 129 S.Ct. 172 L.Ed.2d 565 v. Bauberger, N.C.App. State good and minimize adjudi- we the threat (2006). S.E.2d The North Car- cation that arises courts when enter into equal- olina Court affirmed thorny constitutional areas with inade- vote, ly leaving divided Bauberger’s con- quate briefing or in disposi- fact-bound in place victions lower stripping but tions, id. at see 819-20. precedential court’s decision of effect. See Bauberger, Assuming arguendo State N.C. that the state (2006). Bauberger’s S.E.2d 536 court in rejecting erred claim question be Fry, view standard. inquiry, however. end our does not was whether habeas courts can be harm- fore Court errors constitutional “[M]ost AEDPA/Chapman test apply the kind we shall should less,” those of including unreason (asking trial. whether state court Bauberger’s occurred assume 279, 306, Fulminante, ably applied Chapman’s direct review 499 U.S. Arizona v. (1991); standard), (asking the Brecht test 113 L.Ed.2d 302 111 S.Ct. Lee, 663, a constitutional error had a substantial and see, 290 F.3d Fullwood e.g., Cir.2002) effect), injurious Fry, or both. See (third-party influence 678-83 119-20,127 of extra- U.S. at jurors’ consideration juror subject to harmless error neous evidence The Court made two critical deter review). review, govern- direct On First, § “in minations. it held that that a proving ment has the burden proceedings preju a court must assess the beyond error was “harmless constitutional in a impact dicial of constitutional error Chapman v. a reasonable doubt.” Califor- state-court criminal nia, ..., standard whether or not the ] [Brecht (1967). L.Ed.2d 705 appellate recognized the error state it and reviewed for harmlessness under review, however, collateral On 121-22, Fry, at [Chapman].” 551 U.S. Because of the changes. the calculus added) (citations (emphasis 127 S.Ct. 2321 “finality, pose threat collateral attacks omitted). Second, the stated that Court Pliler, federalism,” Fry v. 551 comity, and certainly require “it makes no sense to 116, 2321, 112, 127 168 L.Ed.2d U.S. S.Ct. (AED application formal of both tests (2007), may petitioners habeas secure 16 Brecht) PA/Chapman and when the latter only “actually] preju if error the writ at obviously subsumes the former.” Id. them, Brecht, 637, 113 507 U.S. dice[d]” 120, say, 127 S.Ct. 2321. That is to where Lane, v. (quoting S.Ct. 1710 United States Brecht, any an error is harmful under 438, 725, 449, 474 88 U.S. declaring it state court decision harmless (1986)) (internal quotation L.Ed.2d 814 unreasonably Chapman. applied must have omitted). making marks this determi result, any satisfying error Brecht As nation, courts ask whether the error had satisfy re will also AEDPA’s deference injurious influ “substantial and effect or quirements. Wolfenbarger, See Ruelas v. in determining jury’s ence verdict.” (6th Cir.2009). 403, 580 F.3d 411-13 Kotteakos, 776, (quoting 66 Id. 1239) (internal quotation S.Ct. marks omit Thus Court took somewhat ted). In the “unusual” situation where appropriate convoluted debate over the evenly that [the “the matter is so balanced error habeas cases standard harmless judge] equi habeas feels himself in virtual opted simplicity for itself. Federal as to the harmlessness of the error poise always habeas courts must review consti is, judge ]” Brecht where [under —'that Brecht, tutional errors state trials under “grave grant is in doubt”—the court must but need not debate whether a state McAninch, v. the writ. O’Neal court’s harmless error determination also 992, L.Ed.2d 947 unreasonably applied Chapman, as most (1995). Fry explicitly implic circuits since Workman, recently itly recognized. Court addressed See Welch v. (10th Cir.2010); relationship Chapman between the di- 607 F.3d Wes (5th Thaler, standard, brook v. 585 F.3d 255-56 rect review AEDPA’s deference Cir.2009); v. Wolfenbarger, and the Brecht collateral re- Ruelas requirement, Cir.2009); standard, begin by v. we laying 411-13 Moses out the F.3d (9th Cir.2009); greater actions detail. 555 F.3d Payne, Bissonnette, v. 544 F.3d 347- Farley A. (1st Beard, Cir.2008); F.3d Bond (3d Cir.2008). judge The trial Per- instructed the But see 275-76 “malice,” (2d meaning only Herbert, element 596 F.3d 175-77 kins v. second-degree murder Cir.2010) (leaving undecided whether both disputed, as follows: AEDPA/Chapman and Brecht must necessary is a Acevedo, 398, Malice element dis- used); 572 F.3d Johnson degree (7th Cir.2009) tinguishes second from murder AED- (requiring 403-04 manslaughter. Malice arises when an Brecht where a state PA/Chapman and inherently act which is dangerous to hu- harmlessness). court addressed intentionally life is man done reck- so course, peti most Of successful habeas lessly wantonly as to manifest a through must go “AEDPA[’s] tioners still utterly mind regard human two-step analysis” ... dem mandate[d] deliberately life and social duty bent onstrating that the court’s state resolution on mischief. contrary constitutional claim their Shortly deliberations, beginning after its unreasonably applied clearly to or estab jury requested copy of the elements lished federal law and the error was second-degree murder manslaugh- Baum Brecht. v. Rush In response, ter. judge re-read the (4th Cir.2009); ton, see instructions to the and returned McBride, 443, v. 521 also Barbe F.3d 453 However, them to their deliberations. Cir.2008). two-step But this process sent they judge soon another note to the require first does not us to address the copy for a the asking regard- of instruction prong petitioner’s the fail on where claims ing any malice and other contested ele- second, the see 519 189— Golphin, F.3d at ment, stating “[m]any that of us are visual above, explained as Fry and absolves The people.” judge informed them he any need AED us to consider both prepare copy during upcom- would a their PAJChapman unreasonableness and lunch ing recess and dismissed them for prejudice Brecht in the error harmless that recess. we deter Accordingly, only context. need indicated, previously during As lunch jury’s dictionary mine whether use jury’s foreperson retrieved a

prejudiced Bauberger the Brecht and read some of its to the definitions standard.1 other when deliberations resumed. he

Though did not read the definition for jury, “malice” itself to the he did read III. them for some of the words definitions instruction, analyzing prejudice from judge’s whether “reck- including “wantonly.”2 jury’s dictionary lessly” use meets the Brecht and The 797, 803, parties' 1. We therefore need not resolve the L.Ed.2d (1991) (habeas look courts should dispute about we "look whether should through summary affirmances to the "last through” Ap- the North Carolina Court of to determine reasoned decision” (which peals’s did not decision conduct review). procedural rule bars habeas state analysis) harmless error to the MAR Court’s (which did) perform AEDPA/Chap- decision also heard Nunnemaker, analysis. man See v. Ylst ("show”), "utterly” ("fully, "manifest” total- Kibbe, “lack of caution” Henderson v. the former as due defined (1977) (looking of S.Ct. 52 L.Ed.2d 203 “arrogant recklessness and the latter in- feelings of Two difference between actual justice others.” given struction and the correct resumed deliberations the instruction hours into their Polk, prejudice); to determine McNeill judge they had informed (4th Cir.2007) split 476 F.3d 226-27 (King, but were seven to resolved one count J., judge part in in concurring concurring instructed five on the other. judgment) (examining to “reconcile difference be- [their] them to do their best definitions); tween ... without surrender differences McNeill, J., (Gregory, at 229-30 Within an hour 476 F.3d conscientious convictions.” dissenting concurring in part part) at ten to instruction stood (same). two, hours Carolina two had con- Under North law the and within second-degree murder “distinction between ‘recklessness’ indica- Bauberger victed tive of deadly weapon inflicting murder and ‘recklessness’ associat- assault with manslaughter degree ed with ‘is one of injury. serious Rich, rather than kind.’” State v. B. N.C. (quot- 527 S.E.2d Fleming, United States argues that Bauberger the dictio (4th Cir.1984)). 945, 948 North Carolina nary “recklessly” definitions of and “wan indicated, however, courts have tonly” government’s burden of lowered See, id.; large. difference in degree e.g., malice, proof on the issue of an issue with Wilkerson, State v. 295 N.C. apparently which he contends (1978). Nonetheless, they S.E.2d result, struggled. Bauberger As a claims upheld second-degree have murder convic- use of the erroneous those dictionar tions even portion where a of the malice ies the Brecht one or meets standard: culpable instruction veered toward negli- jurors may applied more of the recklessness, gence defining provided low malice unacceptably standard con conveyed instruction as whole victing mur second-degree Rich, difference. at See 527 S.E.2d 301-03 der, a dictionary and therefore use had (upholding second-degree a murder convic- injurious upon substantial and effect his tion portion where a of the recklessness disagree: dictionary verdict. We defi instruction suggested “recklessness of materially nitions did not alter mean sufficed). consequences” whole, of a the instruction as and the government significant introduced evi If had Bauberger’s only the dence of malice. dictionary’s “lack of caution” due definition go determining on in the recklessness element, portion of the malice he would more assessing ju harm from of a ease. But as the Supreme dictionary rors’ a part long emphasized use of we look in to Court has in the analo instructions, gous difference between the defi context single of “a nition jury may and the instruction not judged definition. See be court, ly"), "regard” ("respect lowing or and consideration the district focuses for”), Bauberger's earlier in trial one impact on of the

juror up the of looked definition "malice” in a "recklessly” "wantonly” definitions for copy at his home but did it appeal. on it, down, recall or share it with Fol- others. isolation, but in ing Bauberger’s must viewed conduct was wan- artificial charge.” Cupp of overall But possibly the context ton. modified instruction 141, 146-47, 94 S.Ct. Naughten, entirety conveyed U.S. its still the knowing (1973). disregard L.Ed.2d 368 Viewed of others’ central wan- safety instruction, light, possibly even as tonness under North Carolina law. It by jurors modified the definitions con acts, of spoke “intentionally done” ones sulted, fully of conveyed essence North performed “arrogant with such reckless- concerning law malice. The mod Carolina ness” toward “to others as show a mind ified version still referred to “intention fully totally or or respect without consider- done,” “inherently dangerous” act. It ally deliberately ation for human life ... and “lack still described the of due caution” as added). (emphases Any bent on mischief.” fully of nature as to “show mind such modification of the instruction that came totally respect or consideration by dictionary’s about virtue defini- duty.” “social it for human life” or And “wantonly” materially tion of did not affect spoke still of an individual whose acts were that instruction’s malice standard. “arrogantly] justice so or the reckless[ ] The other instructions also indicate a mind feelings others” to indicate jurors could not have read the “deliberately bent mischief.” isolated definitions so as to alter mal- is not language culpa- This of mere ice instruction. challenged “[T]he instruc- negligence. impose ble Phrases like these many [is tion but one of in- often] such higher “thought- a much standard than the ” Henderson, structions .... U.S. disregard consequences” less and “heed- n. (quoting 97 S.Ct. 1730 Cupp, safety less indifference (internal 396) quota- culpable negligence requires. others” omitted). Here, tion marks other those Mack, State v. S.E.2d instructions illustrate that the were Wade, (N.C.Ct.App.2010) (quoting State well aware of mal- the difference between N.C.App. S.E.2d culpable negligence. ice and (2003)) (internal omitted). quotation marks that if Bau- they acquitted were instructed substantially Bauberger’s verdict was not berger second-degree murder dictionary’s injuriously affected must consider of in- guilty whether he of “recklessly” definition because the al- voluntary manslaughter, requires a tered instruction as whole remained ma- showing culpable negligence. To find equivalent terially given by to the one culpable in- negligence, judge. jurors they structed that must find “wantonly.”

So Bauberger impaired, too with Under that drove while that law, North “willful[ly,] wanton[ly,] Carolina “wantonness” de he or intention- wrongdoing,” law, scribes “intentional ally]” conduct violated his “inad- in undertaken “conscious and intentional vertent or unintentional violation of disregard of to accompanied by and indifference law ... reckless- [was] Williams, safety and of probable consequences others.” State ness of a dan- (1973); gerous amounting 199 S.E.2d ... altogether N.C. nature to Young, N.C.App. thoughtless disregard see also State v. consequences (2002). Again, safety it or a to the S.E.2d heedless indifference only jurors would if the knew Bau- thing had others.” also jus involuntary “arrogant berger guilt considered recklessness of had conceded in manslaughter, including tice or the determin- lower feelings culpable others” its wrong while on the standard, speed impaired, malice the rate of making negligence road, in zone no-passing of the and them. side disputed issue before central rules”); right-of-way State v. in violation of circumstances, unlikely it is these Given Westbrook, N.C.App. S.E.2d jurors seized on isolated (finding sufficient evi- 78-79 the malice stan- to transmute of malice the defendant had a dence where disputed to be the knew dard-—which sped through a prior DWI conviction and culpable negli- in the case—into issue road). of the light wrong traffic side standard, Bauberger had gence Bauberger’s not analyzing we are While words, Bau- In other already conceded. sufficiency of the evi- conviction for substantially af- not berger’s verdict was dence, compelling such evidence of malice definitions, fected because considerably likely it makes less instruction as a light in of the viewed both jury’s use affected the ultimate trial, in entire did light and whole decision. materially alter the malice standard. not Bauberger importance of discounts the by pointing struggles this evidence to the reaching jury apparently had in its strength also to the We look He the actual decision. contends that in the dic assessing the evidence jury’s decisionmaking process injuriously tionary substantially and use —its instructions, printed its fore- quests for Bauberger’s See verdict. affected dictionary, McNeill, J., person’s decision retrieve (King, concur 476 F.3d at 226 initially and its divided votes—is what concurring judg and ring part in Brecht, the actions of a ment); J., counts (Gregory, dissenting at 229 id. hypothetical looking at evidence. part). ap in This part concurring in in agree principle accordingly and have pre We proach makes sense: if the evidence jury’s reaching difficulty in looked sented was such that the issue of malice in in one, assessing prejudice prior decision likely likely was not close it is less McNeill, dictionary use cases. See impacted jury’s that the error decision. (King, J., concurring part in F.3d at 226 score, prej- claim to Bauberger’s On this in concurring judgment); id. at particularly par- is the udice is weak. His J., part in (Gregory, dissenting adigmatic second-degree case of murder concurring part). above, driving. via drunk As detailed he However, here, prior driving applied principle convic- this had several drunk drive, tions, prior not to and a cannot do the work sets out for orders night question. revoked license on the it because the record of the delibera- stipulated weight. to a con- cannot bear much high He blood-alcohol tions only an hour knowledge tent and admitted heard the definitions alcohol’s yet despite He also And dangerous upon effects drivers. into their deliberations. high speed, oncoming Bauberger’s at a traf- the defini- drove into contentions fic, disregard signs. lowered the to a of several tions malice standard routinely essentially ac- had Bauberger North Carolina courts have level to which conceded, an addition- cepted evidence formidable than the needed less still reaching a decision. upholding second-degree in murder convic- al four hours before See, Rich, at tells e.g., tions. 527 S.E.2d 304 This timeline us little about issues (finding jurors’ struggles malice which the sufficient evidence of where around ultimately put to high unwilling at a volved. We are the defendant “drove his vehicle record, jury’s ambiguous geFs disturbing a dispositive weight driving combined be with altogether night That would too his activities on acci- actions. dent, permit the modified instruc- more than speculative. Where would to conveyed gist utterly Car- find a “mind for” fully regard tion North present- and the life-threatening ultimately olina law where evidence and life-end- strong, by ed was it takes clearer evidence risks created his conduct. Given so circumstances, jury difficulty satisfy than this to these was there no substan- tial injurious Brecht. and his from effect on verdict jurors’ dictionary reading.3 The dis- IV. trict order granting court’s writ is therefore reversed and case principle “The that collateral review is remanded with directions dismiss the from different direct review resounds petition. throughout [the Court’s] habeas Brecht,

jurisprudence,” AND REVERSED REMANDED understandably and so. KEITH, Judge, Senior Circuit Casually upending fed state convictions dissenting: comity, “finality, eral court threatens federalism,” 116, 127 Fry, 551 U.S. at I respectfully majori- dissent from the singly together words con ty’s opinion. It is axiomatic that vey judicia of respect sense toward state prohibits Constitution going from significant responsibilities ries as independently outside of the record to de- signed respected them. we have Thus termine the that are standards to be used an judgments impact, state where error’s deciding when person’s guilt accused considered the context as a or innocence. many This is based on

whole, See, e.g., not significant. Gol principles; sound importantly, most phin, (overwhelming 519 F.3d at 190-92 reality that such frequently standards dif- any evidence rendered error from admit and, thus, fer from the governing rule Brecht); ting a confession harmless under the basic precept per- undermine that all Ozmint, Wilson v. guaranteed process sons are due Cir.2004) (sentencing any record rendered equal protection law. Such admitting mitigating error from not concerns are not lightly. taken Brecht). statement harmless under treat Were we to such violations cavalier- ly, open floodgates it would arguendo we error assume occurred and, ignoring the of the court Bauberger’s instructions justify trial does not essence, the responsibilities entrusted relief now court he seeks. Neither the nor them the Constitution. any the government bringing had role in about the erroneous use. The Analysis I. instruction, potentially modified taken as a whole, conveyed notes, majority the essence North Car- As the the appropriate olina regarding question considering law malice. Bauber- And when defendant’s judgments 3. To the extent the dissent to ascribe state upon wishes of conviction col- larger significance holding, some to our we lateral has attack of course absolved the simply we should note have assumed for court of the need to conduct careful review argument purposes of the existence of the matter, distinguished and we our thank upon applica- error and rested decision colleague willingness in dissent for his to do tion of Brecht to the facts and standard likewise. circumstances the case. The due deference 110 the ver- influenced juror improperly was corpus is wheth- habeas writ of

petition reversed). contrary must be was dict decision court’s er the state application to, an unreasonable involved or law. See 28 federal established Unreasonably clearly A. The Trial Court 2254(d)(1). “Clearly estab- § Supreme U.S.C.A. Applied Established 2254(d)(1) § law” federal

lished Court Precedent. or legal principle governing fers in rele- provides, Amendment The Sixth Supreme Court by the forth principles set enjoy the that “the accused shall part, vant its court rendered the state the time by impartial ... an right to a trial[ ] 685, 698, Cone, 535 U.S. Bell v. decision. with the wit- ... be confronted [and to] (2002); 1843, 914 152 L.Ed.2d 122 S.Ct. him.” against nesses U.S. Amend. Const. 405, 413, 362, 529 U.S. Taylor, v. Williams by impartial an right VI. (2000). 1495, L.Ed.2d 389 146 120 S.Ct. by panel a ... a fair trial “guarantees vio- proceedings court if the state Even jurors.” Irvin v. indifferent impartial, law, clearly established lated 1639, Dowd, 717, 722, 6 366 U.S. petition for grant a defendant’s may not (internal (1961) quotation L.Ed.2d 751 v. harmless. Jones if the error was relief omitted). “any right prohibits This marks (4th Cir.2005). 257, Polk, 401 F.3d communication, contact, tamper- or private entitled to will be petitioner The habeas juror a dur- directly indirectly, or with “in doubt grave court is if a habeas relief pending before ing trial about the matter of federal law a trial error about whether States, 347 jury.” Remmer v. United injurious effect or in- substantial had 229, 450, 227, L.Ed. 654 74 S.Ct. U.S. jury’s verdict.” determining the fluence (1954). McAninch, 513 U.S. v. O’Neal (1995) (in- 992, 130 L.Ed.2d 115 S.Ct. interpreted has As Fourth Circuit and citation omit- marks quotation ternal all Supreme precedent, Court relevant “[Gjrave when, ted). exists doubt influences, record, juror’s outside circumstances, is so question relevant necessarily prohibited. are not decisions reviewing court evenly balanced clearly has established Supreme Court equipoise on the in virtual finds itself external influences on that while McBride, Barbe v. harmlessness issue.” internal ones prohibited, are deliberations Cir.2008) (internal (4th 443, 461 521 F.3d Polk, Robinson v. permissible. are omitted). citations marks and quotation Cir.2006). 350, it can said with fair The test is whether case established Court Under juror’s single decision assurance that not law, if it is an influence is external extrinsic influ- swayed by resort to the information; i.e., extraneous Gladden, ence. Parker v. into that was not admitted information (1966) (A L.Ed.2d 420 on a nevertheless bears evidence but by tried is “entitled to be defendant (2) is an fact at issue in the case or unprejudiced impartial even 9 or upon partiality influence outside Lee, 290 F.3d jurors.”); Fullwood communication, private jury, such (4th Cir.2002) (“[I]f ju- single even a contact, juror. ... with a tampering or an im- by overcome impartiality ror’s (internal quotation marks at 363 influence, Id. the accused extraneous proper omitted). of internal Examples citations impar- right deprived has been drugs taken include alcohol influences Borg, 60 F.3d jury.”); tial Lawson Turner, (9th Cir.1995) juror, (noting that if even one

111 546, readings juror or Bible which a with the jury presumptively S.Ct. prejudicial); purpose for the upon “examining States, relies Mattox v. United 146 U.S. within,” own from his or her conscience (1892) 13 S.Ct. L.Ed. 36 917 (stating Robinson, 438 F.3d at 363-64. that “in capital cases ... jury should pass upon the case

It is clear under the free from external Court’s precedents jury that when the relies on a causes to tending disturb the exercise of knowledge outside of its source own or judgment”). deliberate and unbiased beliefs, presented not at trial or ingesting Unlike drugs alcohol or or or judge part of his her instruc- reading conscience, a Bible to settle one’s tions, to what relevant determine law to looking up legal terms apply apply, jury subject has been to an decision-making process merely is not an “external influence” in violation of “internal” matter that merely affects how Sixth Amendment to the United States one or feels facilitates an examination of States, Rogers v. Constitution. United what already one thinks or believes. (1975) S.Ct. 45 L.Ed.2d Rather, case, jury in consider- (finding violation of the Amendment Sixth dictionary’s definitions was consult- court, consulting where the ing an external dictionary— source—the defendant, provided further instruction to specifically because found their inter- jury jury then relied on in nal defendant). knowledge to be insufficient. See See Rob- convicting also Tan- inson, (external States, 107, 117-18, at 364 ner v. United 483 U.S. influences (1987) (not- impart pressure or juror S.Ct. L.Ed.2d “a knowledge on ing the “external” in- apart juror himself, distinction between from the reading fluences, juror a reading newspa- such as of Bible passages invites the listener to per hearing prejudicial or statements from examine his or her own conscience from others, influences); Parker, “internal” within.”). Had the had the knowl- 364-66, 385 U.S. at 468 (finding S.Ct. itself, edge within it would not found that a bailiffs statement to it necessary to consult the defendant was a “wicked fellow” and place. first “guilty” constituted “outside influence” Likewise, unlike reading the Bible or that violated the Sixth defendant’s Amend- ingesting or drugs, consulting alcohol right ment to fair trial and confrontation dictionary applicable determine the le- because “the developed against evidence gal principle not merely incidental to defendant shall come from the witness jury, issues before the directly but was in public stand courtroom where there is relevant up as the looked it words was judicial full protection of the defendant’s apply. instructed to See (finding id. at 363 right confrontation, of cross-examina- juror’s reading of the Bible did not tion, counsel”); and of Turner v. Louisi- require reversal conviction because ana, 466, 473, 379 U.S. “the no any Bible had fact bearing on L.Ed.2d 424 (finding violation of sentencing, relevant to and was therefore defendant’s Sixth Amendment tantamount ‘evidence’that was used deputies against where two who testified against sentencing.”). Any him at him doubt assigned were to guard, and frater- concerning with, the correctness of this conclu- jury); nized Remmer v. United States, sion is all but vitiated a situation such as (1954) (stating “private L.Ed. 654 this where the all defendant has conceded communication, contact, but tampering” element and ac-

112 a legal rectly point, provide ‘gov- on but must about this quired information articulate erning legal principle’ spe- at issue. element for lower courts to cific considerations in re- provides, the state The cases prece- applying [relevant] follow when clearly distinguishable. sponse, are Quinn 837, v. 234 F.3d Haynes, dent.” an jurors rely on cases did the none of the (4th Cir.2000) (citing v. Williams 844 legal question to resolve a influence 1495, 120 S.Ct. Taylor, 529 U.S. relevant the case before dispute to factual (2000)); see v. 146 L.Ed.2d 389 Panetti (4th Johnson, 140 it. 565 F.3d Wolfe 930, 953, 127 Quarterman, 551 S.Ct. Cir.2009) juror (finding no error where (“That (2007) 662, 2842, 168 L.Ed.2d into room of his son brought pictures terms general is stated in does standard wife); juror spoke his with and another application mean the was reasonable. not Robinson, no (finding 438 F.3d 364 ‘require not state and statute] does [The juror a prohibiting law clearly established nearly courts wait for some federal any garner Bible relying on not to from factual before a pattern legal identical merely to legal principle fact or external ”); applied.’ Lockyer v. An- rule must be conscience); Lynch v. his own reflect on drade, 1166, 538 U.S. Cir.2006) (4th Polk, Fed.Appx. 204 167 (“Section L.Ed.2d 155 (same). on the afore- The state’s reliance 2254(d)(1) permits a federal the flawed cases suffers from mentioned applica- on the grant habeas relief based influ- merely that assumption because principle governing legal tion of a to a may materials not violate ence of some facts from those of the set of different Amendment, the consideration Sixth principle in which was an- case does not any and all external material nounced.”).1 violate the Sixth Amendment. Finally, this conclusion is buttressed cases, citing pro- these the state Beyond which similar- the decisions other courts why it explanation no as to believes vides ly found that of a on have the reliance ele- dictionary used to define the that a defining applicable legal in center of ment at the trial constitutes violates principles the Sixth Amendment. permissible opposed internal influence as Duncan, F.2d States v. See United influence. impermissible an external Polk, Cir.1979); McNeill v. F.3d Rather, that no simply the state asserts (4th Cir.2007) (two judges of three that a use specifically case has found finding juror improper that relied on panel specific legal to define the by consulting dictionary influence external in at issue this case violates terms J., (King, concur- mitigate) for definition Amendment. Accordingly, it con- Sixth J., judgment) (Gregory, dissenting ring not the issue in this case is cludes judgment); Vasquez, Marino v. clearly established. (9th Cir.1987) (“[Unautho- F.2d argument This line of misconstrues rized reference to principle. relevant error which the relevant constitutes reversible “[T]he beyond a precedent prove be di- must harmless rea- Supreme Court need not State up posits reply 1. that it is case violated Sixth The state in its brief looked argument obviously arguing Supreme Court must Amendment. This in- not ternally The state once ar- decided an identical issue before a feder- inconsistent. relief, grant petition gues arguing that there may habeas that it is must be al court complains merely decid- an case and then Court has not identical looking up case. which the there is not identical ed that words doubt.”); McNeill, Kupau, panel of this States circuit. 476 F.3d at sonable United cert, (9th Cir.1986), However, de- history of this nied, circuit’s consideration these factors is (1986)(same).2 L.Ed.2d 45 not Supreme so nascent. The Court and the Fourth Circuit have long considered majority Accordingly, while the as- each of factors set out in Mayhue the sumes, deciding the that adopted in considering McNeill when the amendment, Sixth no conduct violated the prejudicial effect of constitutional viola necessary. assumptions are Under such Kibbe, tions. Henderson v. Supreme both Court’s and this Cir- the un- 52 L.Ed.2d jurisprudence, cuit’s such conduct is (1977)(examining constitutional. the difference between given the instruction and the instruction B. The Error had a Substantial that given should have been in determin Injurious Effect on the Barbe, ing prejudice); 521 F.3d at 459-60 Defendant. that (explaining pre the trial court’s error jurors’ that the Upon assuming conduct vented the defendant from cross-examin amendment, majori- the Sixth the violated expert the prosecution’s as to a matter ty erroneously rejects Bauberger’s petition “crucial his presentation to of an effective grounds any on the that such error was defense”); Greene, Fitzgerald v. 150 F.3d prejudicial to him. (4th Cir.1998) (noting po that a tentially juror’s impact biased Mayhue was minimal Hosp. Francis St. of Wichita, Inc., (10th rejected as Cir.1992), jury the sentencing sugges 969 F.2d 919 his out a tion part jury the Tenth Circuit set five test to and the had made its decision determining use when lower before he made potentially prejudicial prejudicial. statements); court’s error is The test as- Smith, Sherman v. 89 F.3d sesses: (4th Cir.1996) (concluding

(1) importance light The of the word or “in all presented the evidence trial, to phrase being defined the resolution of grave [the no court] harbor[ed] (2) case; the The extent to which the prejudicial doubt” as to the minimal effect dictionary definition differs from the visit.”) (internal juror’s “site quota jury proper instructions or from the le- omitted); tion Stock marks citations (3) definition; gal The extent ton v. Virginia, 852 F.2d jury and emphasized discussed the Cir.1988) (finding by jury comment to res definition; (4) strength of the evi- taurant owner where it “bore dence and whether the had difficul- on the exact issue ... were ty reaching prior a verdict to introduc- Duncan, time”); on at deliberating definition; tion of (finding F.2d at 866 error prejudi was not Any a deter- other factors relate to cial immediately as the foreman squelched prejudice. mination of definition); any discussion Johnson, Id. at test Cairns v. subsequently Fed.Appx. 924. The (4th Cir.2008) by adopted majority judges of a (noting potentially erro- noted, analysis persuasive district As the unreason- of these decisions is in the ”[t]he application of a state court’s of ... objective ableness inquiry before court.” Bauber- jurisprudence [the relevant] Court Haynes, ger F.Supp.2d by cannot established decisions lower (M.D.N.C.2009) omitted). (internal citation [However], federal courts or state courts. imposed jority agrees, that the standard were relevant to journals neously excluded case). virtually identical these Given terms central issue legal counterpart. their application basis well-founded lists, the like- parties, the test the factors To the effect these defini- understand wise, applicability. its agree on examine, must jury, tions had on the majority Nonetheless, focuses its does, majority judge’s on extent to which primarily analysis malice, of which the charge differed from dictionary definition disputed part. judge’s words were in and itself was jury instruction —which provided on malice instruction to the strength the evi- the of substantial —and “[mjalice when an act which is arises Bauberger’s conviction. supporting dence inherently to human life in- dangerous no to the weight It attaches meanwhile tentionally recklessly and done so wanton- jury for issue which the centrality of the utterly as to a mind ly manifest time length and the of assistance sought duty for life and social regard human exposed jury was the for which deliberately Tr. Vol. bent on mischief.” IV definitions, past both of which erroneous added). trial (Emphasis judge The have deemed relevant. of this circuit courts contrasted with the more this standard in to a care- of such addition Consideration involuntary man- applicable lenient important of the differences weighing ful slaughter, Bauberger was with which also dictionary legal defini- the between involuntary of man- charged. guilty To be the examined terms establishes tions of have slaughter, the defendant must acted magistrate and district that both “culpable “Culpable negligence.” with doubt” judges correctly “grave concluded requires negligence,” explained, the court effect of the as to the existed (1) “willful,wanton, or intentional” either error. constitutional operation governing violation of of law vehicle, a motor or an “inadvertent or factor, parties do not to the first As unintentional of the law” that is violation looked dispute that the words “accompanied by probable recklessness of up dictionary supreme were of im- nature consequences dangerous of a when above, As portance in this ease. noted by foresight rule of reasonable tested every element, other Bauberger conceded amounting thoughtless altogether to dis- acted with malice—the but he had or a heedless regard consequences indif- jury sought precise term the additional Trial safety of others.” Tr. ference defining. in help judge VI 21-22. The also Vol. notes, majority do parties, The as meaning instructed the on the extent disagree as to the the definitions of reckless “reckless” in the context driv- provided in the words for find Bau- ing, required “recklessly” “wantonly” differ from carelessly heedlessly in berger “acted The legal counterparts. dictionary de- their rights disregard or of the or willful wanton “lack of “recklessly” fined due caution.” safety of Id. others.” “wan- App. 157. The defined clearly courts have “arrogant jus- North Carolina tonly” as an recklessness stated, majority acknowledges, as the feelings of others.” Id. Bauber- tice or murder purposes “malice” for ger of these argues use “a quires high degree recklessness.” effectively lowered the standard Rich, 527 S.E.2d something more to State v. 351 N.C. equivalent malice (2000). However, even contrast argues, ma- negligence. The state and the with the trial court’s instruction regarding definition imposed a more lenient stan- meaning “reckless” the context of every dard. Not act which is in arrogant driving, reckless defini- disregard of others will necessarily in- tion—lack of due caution —sets a low stan- volve a conscious and intentional disre- person It seems clear that a may dard. gard Rather, of others. above, as noted caution, have acted without due but not definition, the dictionary’s because it does necessarily in willful or disregard wanton not require that the disregard be con- rights safety of others. Stated intentional, scious or resembles lower otherwise, may there many circum- standard of negligence. person may stances which a not have argues, state and the majority proper (thereby exercised caution acting agrees, that if even attached the recklessly as defined the dictionary) but lower standard may necessarily associated with each of acted with willful disregard dictionary definitions, or wanton term’s for the or safe- when the ty of others. correctly points terms are read in the context of the overall dictionary’s out that the definition of reck- instruction for malice their insertion could lessness, because it does not require that only have had a minimal effect. The ma- disregard for others be willful or wan- jority emphasizes that a reading of the ton, resembles standard negli- for instruction as a whole shows that the crim- gence. inal act must still have been “intentionally done” and “manifested] mind utterly

North Carolina similarly courts have without regard for wantonness, human life interpreted in and social the criminal context, duty and deliberately requiring bent on more than a mere mischief.” disregard actuality, unintentional the majority by of others. simply “Wan- em- ... tonness connotes wrongdo- phasizing intentional that these words present are in ing. ... Conduct is wanton when in con- instruction, regardless of place- their scious and disregard intentional ment, views them in isolation and out of indifference to the safety so, context. In doing it ignores both the Williams, State others.” 284 N.C. instruction’s text and the facts of this case. (1973) (internal 199 S.E.2d quo- instruction, face, on its has two omitted) (em- tation marks and citation separate parts. Under the instruction’s added). phasis Furthermore, “[t]he terms, for an individual to have acted with words ‘willful’and ‘wanton’ have substan- malice, he must not only have committed tially the same meaning when used in the act intentionally, but also acted in will- requisite reference to the state of mind ful or wanton disregard of the risk his for a violation of a criminal statute.” i.e., actions posed, he must have been Davis, State v. 86 N.C.App. aware of the risk his actions entailed and S.E.2d (citing Williams “ disregarded them noted, 412). nonetheless. As 199 S.E.2d at ‘Willful’ as used in dictionary definition of criminal reckless—lack statutes wrongful means the do- of due requires ing of an act no such aware- justification or ex- caution— cuse, Accordingly, ness. as the instruction read pur- commission an act a) posely jury, deliberately must violation of have com- Id. at 610. b) law.” act; mitted an intentional con- done so trast defined in spite “wanton” as the of the fact a “arrogant grave danger exist- justice recklessness of or the feelings of ed—whether or not he was aware of it. others.” App. Again, simply To conflate the instruction’s two majority so, argues, and the The state did likewise

parts, and assume that the deliberated agrees, the fact construction. plain instruction’s ignores the acquiring after more than four hours further conclusion is Importantly, reaching before Had the jury’s actions. by the undercut dictionary had verdict indicates “intentionally” to the whole jury imputed relevant, it this is little or no effect. While it is instruction, majority suggests, as the presumes. not as conclusive as state would have so the foreman why not clear appropriate misconstrues The state following scien- define need to felt the As noted the court. question before break, he, his lunch terms ter above, merely question is the relevant way of his to obtain gone out would have was affected one individual further assistance. if dictionary. Accordingly, even one vote use, dictionary’s as a result of the shifted factor, Likewise, to the third pursuant had a effect. prejudicial the violation that the to believe strong reason there is emphasis on the significant jury placed strength of evi- factor —the The fourth definitions. they garnered difficulty terms for which dence and the fac- under this considerations weighs The relevant in favor of reaching verdict — jurors exposed notes, the number there is sub- majority tor include As the state. information, acted potentially evidence that the defendant stantial in their deliberations point malice. what with material and received the violative Nonetheless, there is evidence See, it. they time considered length of evidence, jury, the aforementioned despite (noting at 366 Fitzgerald, 150 F.3d e.g., to decide whether malice exist- struggled impact potentially biased member’s that a clarifi- jury requested additional ed. The rejected jury minimal her sentenc- was as of the term “mal- meaning cation as to the they had made their ing suggestion and lunch, the foreman took the During ice.” preju- potentially she made decision before library to the to step going unusual statements). dicial jury to acquire a aid whether the evidence was suf- determining that several members of undisputed It is finding of malice. support ficient to jury further instruction requested lunch, However, returning from after even malice, judge from the on the definition request- receiving the additional materials up are of which the terms looked dictionary, jury reviewing the ed and Likewise, dispute not parties do part. charge an Allen multiple votes and needed the dictio- that once the foreman retrieved Bauberger guilty. it found before disputed terms nary, the definitions for factors, ques- jurors. Considering all these with all twelve of the were shared jury’s consideration that it was the foreman who tion of whether It is relevant is close obtaining the dictio- was responsible for was in favor of a weighing Factors jurors. question. it with other nary sharing jury finding prejudice are providing the defini- party That he was the directly to the sought evidence relevant may that the other suggests tions issue, legal and the substan- disputed to the ex- sole weight have attached additional as de- between the terms Mayhue, 969 F.2d tial difference ternal information. See they are in the and as Finally, it notable that fined at 925. How- by North Carolina Courts. relatively defined foreman obtained justifying a ever, evidence process. the substantial early jury’s deliberative weighs against finding of malice another human finding being’s guilt on nothing Ultimately, my whim; conclusion prejudice. system more than a worthy more preju- constitutional that the violation of Kafka than the Constitution. With First, mind, dicial is based on two realities. these I thoughts respectfully DIS- matter, while, may a legal there today’s SENT majority opinion. from malice, evidence of been substantial obviously did see the situation as noted, it

such. As the foreman felt neces-

sary go library, to the other it neces-

members likewise felt

sary request additional re- information

garding rules to Even apply. pieces these had been once information CRESPIN-VALLADARES; Orlando only provided, charge after an Allen Melgar-Melgar; Yanira Sandra votes its multiple did the reach con- S.E.C.M.; S.O.C.M., Petitioners, Second, above, clusion. as noted the de- fendant, trial, garner a new need not prove proximate result was a HOLDER, Jr., Attorney Eric H. merely the impropriety, sult of but General, Respondent. is in virtual equipoise the evidence his may have been affected. No. 09-1423. centrality Given of the issue States United Court of Appeals, case, the substantial difference in the stan- Fourth Circuit. applied appropri- dard and that which was struggles ate and to resolve the Argued: Dec. 2010. I, issue, court, like the district find that Decided: Feb. Bauberger has grave raised doubt as to decision was fact unbiased.

II. Conclusion protections

The Constitution’s exist not

only persons because ensure that all fairly

are treated our crimi- equally by system, justice they speak

nal but because integrity and values of nation Therefore, residents.

and its when these infringed, are it hurts us all.

Today’s majority opinion me concerns it,With we a dan-

deeply. embark down road

gerous permits jurors go guilt

outside record to determine

innocence. Such conduct threatens

open a Pandora’s box of unconstitutional It potential

behavior. creates the

system any juror in which may determine

Case Details

Case Name: Bauberger v. Haynes

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 11, 2011

Citation: 632 F.3d 100

Docket Number: 09-8111

Court Abbreviation: 4th Cir.