Rehearing in banc granted by order filed 1/18/96.
Unpublished opinion filed 12/4/95 is vacated.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TIMOTHY SCOTT SHERMAN,
Petitioner-Appellant,

v.

WILLIAM L. SMITH, Warden,
                                                                  No. 94-6831
Maryland House of Correction-
Annex; JOHN JOSEPH CURRAN,
Attorney General for the State of
Maryland,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-91-2006)

Argued: September 27, 1995

Decided: December 4, 1995

Before MURNAGHAN and WILKINSON, Circuit Judges, and
BEATY, United States District Judge for the Middle District of
North Carolina, sitting by designation.

_________________________________________________________________

Writ granted by unpublished per curiam opinion. Judge Wilkinson
wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Andrew Lewis Frey, MAYER, BROWN & PLATT,
Washington, D.C., 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, D.C.; Stuart J. Robinson, Bel Air, Maryland,
for Appellant. J. Joseph Curran, Jr., Attorney General of Maryland,
Criminal Appeals Division, OFFICE OF THE ATTORNEY GEN-
ERAL, Baltimore, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Timothy Sherman, convicted in the Maryland Circuit Court for
Harford County for the shotgun murders of his mother and stepfather,
sought habeas corpus in the federal district court because of a
claimed error which occurred during his trial. A juror, without the
trial judge's permission and in contravention of the handbook distrib-
uted to jury members at the start of the trial,1 visited the scene of the
crime and particularly, a tree in the branches of which authorities had
located the murder weapon. The juror explained to another jury mem-
ber that he went "so that everything would be clearer in his mind" and
because he was dissatisfied with the photographs of the tree.2 The dis-
trict court presumed error, but found it harmless trial error and denied
the writ.3
_________________________________________________________________

1 At sentencing, the trial judge acknowledged that "there's no question
that [the juror] had violated instructions which were given about not
doing his own investigation" but then found the visit did not constitute
prejudicial error.

2 The trial judge had refused Sherman's request for a jury visit to the
crime scene. He believed "the issue was fully covered" and consequently,
the trip would be a waste of time and resources.

3 See Sherman v. Smith (Nuth), 8 F.3d 820 (4th Cir. 1993) (table) (per
curiam); Sherman v. Smith (Nuth), No. 91-2006 (D.Md. July 28, 1994).

                    2
It appears evident that there was error. Not following a rule that is
consistently and uniformly practiced cannot be correct. However, the
question remains whether the error was harmless. Brecht v.
Abrahamson, 113 S. Ct. 1710, 1722 (1993). Because we have con-
cluded that the error was not harmless, O'Neal v. McAninch, 115 S.
Ct. 992, 995 (1995), there is no reason for us to investigate whether
it was structural. See Arizona v. Fulminante, 499 U.S. 279, 306-10
(1991) (discussing distinction between structural and trial errors). We
need only to give the error significance, even if it is merely trial error.

Our conclusion of non-harmlessness proceeds from the conse-
quences of several circumstances:

1) It denigrates much of our entire judicial system when a juror
takes into account factual matters not before the jury as a whole and
communicates what he so has learned to other jurors, all in contraven-
tion of the jury instructions.4

2) The capability of Sherman to place the shotgun amid the
branches as it was found was a question in the trial, and an answer
to it, for a juror dissatisfied with the photographs of the tree,5 could
be clarified by an actual visual inspection.6

3) The juror's description of his erroneous visual viewing may
well have affected the factual viewpoints of the other jury members.
_________________________________________________________________

4 The Sixth Amendment to the United States Constitution guarantees a
criminal defendant the right to a trial by an impartial jury, Stockton v.
Virginia, 852 F.2d 740, 743 (4th Cir.), cert. denied, 489 U.S. 1071
(1989), and Due Process requires that a jury verdict be based solely upon
evidence developed at trial. Smith v. Phillips, 455 U.S. 209, 217 (1982);
Irvin v. Dowd, 366 U.S. 717, 722-23 (1961).

5 The federal district judge declared that the prosecution's most crucial
photograph, a close-up of the pine tree, "does not show me anything on
its face."

6 The attorneys at the sentencing hearing were prohibited from inquir-
ing why the juror searched for the neighborhood and the tree. Yet the
evident effect of doing so illuminates the motivation behind his investi-
gation. In addition, the juror testified: "The reason why I went there was
so I could see the tree that was so much in question."

                     3
4) Aside from what the view of the tree would disclose, the other
evidence against Sherman was conflicting, particularly since no evi-
dence of gunpowder residue was found on Sherman.7

We cannot say, therefore, that the error did not have a "substantial
and injurious effect or influence" on the jury's verdict. Brecht, 113 S.
Ct. at 1722 (citing Kotteakos v. United States , 328 U.S. 750, 776
(1946));8 see also O'Neal, 115 S. Ct. at 995. What the juror saw and
_________________________________________________________________

7 United States v. Williams-Davis , 821 F. Supp. 727, 740 (D.D.C.
1993), involved a juror who conducted an unauthorized crime scene visit
while on an evening's outing all over Washington, D.C. but testified that
the trip failed to affect his ability to render a fair and impartial verdict.
The jurors in the instant case have not so testified about a particular
scene. The Williams-Davis case is, therefore, distinguishable.

8 Brecht v. Abrahamson adopted the standard articulated in Kotteakos
v. United States as generally applicable for federal habeas review of con-
stitutional error. Brecht, 113 S. Ct. at 1722. In its opinion, the U.S.
Supreme Court noted that it was the sixth court to pass on the question
before it. The state courts that had considered the matter on direct review
had done so using the harmless-error analysis set out in Chapman v.
California, 386 U.S. 18, 24 (1967), which requires the prosecution to
show "beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained." The Court concluded that "it scarcely
seems logical to require federal habeas courts to engage in the identical
approach to harmless-error review that Chapman requires state courts to
engage in on direct review." Brecht, 113 S. Ct. at 1721. The Brecht Court
refused to assume that state courts would fail to apply the appropriate
standard on direct review and explained that state courts "are fully quali-
fied to identify constitutional error and evaluate its prejudicial effect on
the trial process under Chapman, and state courts often occupy a superior
vantage point from which to evaluate the effect of trial error." Id. The
Court determined that requiring federal habeas courts to apply the same
standard after state courts have done so might "undermine[ ] the States'
interest in finality and infringe[ ] upon their sovereignty over criminal
matters." Id.

A large support for Brecht's holding that federal habeas courts need
only determine if the error substantially impacted the jury's verdict,
therefore, was the fact that state courts traditionally have applied
Chapman in reviewing constitutional errors on direct review. Hence the
Court's determination that requiring the federal court to apply the same

                     4
what he described to other jurors certainly influenced the jury's ver-
dict. Unlike other cases in which courts have found an error harmless
in light of "overwhelming" or clear evidence against the defendant,
see, e.g., Correll v. Thompson, 63 F.3d 1279, 1291-92 (4th Cir. 1995),
the case against Sherman is less than compelling. The evidence is
largely circumstantial. The prosecution presented no eyewitnesses to
the killings, no confession by Sherman, nor any evidence of gunpow-
der residue, tree sap, or pine needles on him. See id. (finding admis-
sion of defendant's confession harmless in light of co-defendant
testimony, eyewitness accounts, and other testimony that defendant
admitted involvement in crime).

Bearing all the considerations which must be taken into account,
the error was not harmless. Granting a writ of habeas corpus does not
necessarily set Sherman free.9 If the state of Maryland elects promptly
to retry him, a jury, acting properly, may well again convict. It also
may not, however, for Sherman, like all criminal defendants, must be
proven guilty beyond a reasonable doubt. But a subsequent trial,
unlike the trial at issue, presumably would be conducted without
harmful error, which is a basic objective of our judicial system.
_________________________________________________________________

test when the state court has already done so would be duplicative. In the
present case, however, no court--state or federal--has applied the
Chapman test, so to require it in the federal habeas corpus case would
not be duplicative. See Starr v. Lockhart, 23 F.3d 1280, 1292 (8th Cir.),
cert. denied, 115 S. Ct. 499 (1994); Orndorff v. Lockhart, 998 F.2d 1426,
1430 (8th Cir. 1993), cert. denied, 114 S. Ct. 1631 (1994). While the
question of which standard a federal habeas court is to apply in such a
situation has not been definitively answered by this court, we do not need
to confront the question here because the error in this case cannot be
deemed harmless under either standard.

9 Sherman will remain in custody while the state decides whether to
retry him. Only if he is not given a new trial within six months will he
be released from custody pursuant to this order.




                    5
Accordingly, the writ is granted, subject to the right of Maryland
to retry Sherman on the charges of murder within six months of our
adoption of this order.

WRIT GRANTED

WILKINSON, Circuit Judge, dissenting:

I respectfully dissent. It is clear that juror Miller's unauthorized
visit to the crime scene constituted trial error, but it is equally clear
that the error was harmless under the standard enunciated in Brecht
v. Abrahamson, 113 S.Ct. 1710 (1993). See also Smith v. Dixon, 14
F.3d 956, 974-81 (4th Cir. 1994).

The district court, after thoroughly reviewing the evidence pres-
ented at trial, correctly concluded that the juror's site visit did not
have a "substantial and injurious effect or influence in determining
the jury's verdict." Brecht, 113 S.Ct. at 1722 (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)). First, the state offered pow-
erful evidence at trial that Timothy Sherman killed his mother and
stepfather. The murder occurred in the middle of the night when Tim-
othy Sherman was home; there was no indication of forced entry, and
the house was equipped with an alarm system. The murder weapon
was a 12-gauge shotgun that belonged to the Shermans. Police dis-
covered Timothy Sherman's fingerprints on the weapon's trigger
mechanism and a box of 12-gauge shotgun shells under his mattress.
The box itself contained only three shells, and police located two
matching (the box held five) expended shells that experts concluded
were fired from the murder weapon. Police found the shotgun lodged
in the branches of a large tree, where Timothy Sherman had previ-
ously hidden objects and which is located between his own house and
that of his grandparents where he ran to report the murder. It is true
that there was no sign of gunpowder residue on Timothy Sherman and
no pine needles or sap were found on his clothing. But against the
powerful array of evidence presented at trial, these facts seem insub-
stantial.

Second, little prejudice could have resulted from the juror's visit to
the crime scene. Juror Miller apparently traveled to the scene in order
to see the hiding place for the weapon, even though aerial photo-

                     6
graphs of and testimony about the tree had been introduced into evi-
dence. When the district court considered the prejudicial effect of the
visit, it granted Sherman the benefit of several assumptions: "that Mil-
ler examined the tree, told the other jurors that he disagreed with the
photographs, and concluded that it was possible for Sherman to hide
the gun in the tree in the condition in which it was found." Even under
these assumptions, however, the district court found that the error was
harmless because substantial evidence demonstrated that Timothy
Sherman hid the weapon in the tree. That evidence included photo-
graphs showing that Timothy Sherman had an opportunity to hide the
weapon in the tree and testimony that he used the tree as a hiding spot
and would have been physically able to wedge the gun in the tree.
Given this context, the district court appropriately concluded that the
juror's site visit "was cumulative of the detailed evidence presented
at trial" about the neighborhood where the murder took place and the
hiding place for the weapon.

In light of all the evidence presented at trial, Juror Miller's unau-
thorized excursion to the crime scene was harmless. Brecht, 113 S.Ct.
at 1722; Smith, 14 F.3d at 979. I would affirm the judgment of the
district court for the reasons set forth in its careful opinion.

                    7
