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Dennis Waldon STOCKTON





Classification: Murderer
Characteristics: Murder for hire
Number of victims: 1
Date of murder: July 21, 1978
Date of arrest: June 25, 1982
Date of birth: 1941
Victim profile: Kenneth Arnder (male, 18)
Method of murder: Shooting
Location: Patrick County, Virginia, USA
Status: Executed by lethal injection in Virginia on September 27, 1995

clemency petition


According to press reports, Kenneth Arnder's body was found in North Carolina in 1978. The crime was investigated by officials in North Carolina but no charges were filed.

In 1982 the state of Virginia produced a witness who claimed that he was a witness to a meeting at which Stockton agreed to kill Arnder for $ 1500. The prosecution claimed that Arnder was killed in Virginia and his body was the moved to North Carolina. This testimony was the main evidence against Dennis Stockton. No physical evidence linked Stockton to Arnder or indicated that the murder took place in Virginia.

In 1987, a federal judge set aside Stockton's death sentence when it was learned that the 1983 jury was tainted. The judge offered Stockton a choice of life imprisonment or a new sentencing hearing. Stockton, insisting on his innocence, chose a new sentencing hearing where he was again sentenced to death.

In a 1984 civil case challenging prison conditions, an inmate testified that he was in jail with the witness above when "[he] did tell me....that he lied on Dennis because he said, 'I hate that son of a bitch.'" Another inmate stated that the witness told him "he would....say anything for anybody if the money was right."


Death-Row claims of innocence ignored

The Virginian-Pilot

June 27, 1994

Two men, one awaiting execution, one already in his grave. Each claimed he was innocent of capital murder. Each claimed prosecutors withheld favorable evidence from his trial to get a conviction. Each had strong evidence to back his claim.

But the state has not been inclined to review claims of innocence. The law says that evidence found 21 days after conviction cannot be considered by the courts.

In his dissent to a 1993 U.S. Supreme Court ruling that innocent persons condemned in a fair trial have no constitutional right not to be executed, Justice Harry Blackmun wrote: "The execution of a person who can show that he is innocent comes perilously close to simple murder.''

One man, Dennis Waldon Stockton, bitterly states he soon will be "murdered by the state'' without a fair hearing. The other, Roger Keith Coleman, never got that hearing and went to his grave proclaiming innocence.

These are their tales.

Dennis Stockton's story is one of two jurisdictions: Mount Airy, N.C., where he grew up and lived during infrequent periods out of jail. And Stuart, Va., due north in Patrick County, where in March 1983 a jury said he should die.

Mount Airy was Andy Griffith's home, but the Surry County mill town, dubbed "Little Chicago'' for its criminal element, is a far cry from TV's Mayberry. Stuart, 40 miles away, prides itself on Virginia gentility. The home of Mary Sue Terry and Gerald Baliles, it is also a town steeped in politics.

In 1983, Stuart was the home of assistant prosecutor Anthony Giorno and sheriff's investigator Jay Gregory - both of whom ran for, and won, their respective offices eight months after convincing jurors that Stockton must die.

"Stuart is a different world than Mount Airy,'' said Tom Joyce, managing editor of The Mount Airy News. "People there don't question authority. Giorno and Gregory are demagogues. If they say something's true, it must be.''

In September 1986, the tiny paper, which calls itself pro-capital punishment, said that justice bypassed Stockton.

The condemned man said that all along. He alleged that Giorno failed to disclose a deal-for-testimony with the prosecution's main witness, Randy Bowman; that Giorno knowingly allowed perjured testimony by Bowman; and that prosecutors failed to turn over a questionable statement by another key witness, Robert Gates.

Until 1990, Giorno denied this evidence existed. Then, seven years after the trial, he sent the evidence to Stockton's lawyers. In a letter dated Feb. 28, 1990, he wrote: "I am not aware of any exculpatory evidence in this matter. In an abundance of caution, however, I am writing to disclose'' evidence which could have helped Stockton avoid a death sentence.

"It's repugnant to suggest that I would use tainted evidence that would lead an innocent man to death row,'' Giorno said recently. "I am convinced I did nothing wrong.''

Stockton and his lawyers disagree. "The commonwealth finally admitted, for the first time, that it had lied,'' they claimed in court papers. "For the first time, the commonwealth revealed that it had knowingly elicited perjured testimony from an essential prosecution witness.''

Stockton, now 53, was no choirboy when he ran afoul of Virginia law. His record was peppered with burglary, forgery, weapons and drug charges. Then, in 1982, he was charged with the 1978 murder of Kenneth Wayne Arnder, 18, whose body was found near Mount Airy. Arnder was shot in the head and his hands were hacked off above the wrists. Arnder's mother said she last saw her son alive with Stockton. North Carolina officials investigated, but they never filed charges.

Then Virginia jumped in. According to the state, Stockton killed Arnder in a remote Patrick County picnic area, then moved his body to North Carolina. But no physical evidence linked Stockton to Arnder or the murder to Virginia. And no weapon was found.

The state, however, had Randy Bowman, a small-time felon who said he was present at a meeting during which Stockton agreed to kill Arnder for $1,500. Bowman testified that Tommy Lee McBride, another felon, wanted Arnder killed because of a soured drug deal. McBride, Stockton and others denied this.

The state's case lived and died with Bowman, who not only named the co-conspirators but placed the murder in Virginia. Prosecutors requested death because of Bowman's claim that it was a murder-for-hire case.

Then there was Robert Gates, who testified he was present in June 1979 when Stockton killed another man for "running his mouth'' about Arnder's death. Gates said he watched Stockton shoot Ronnie Lee Tate three times, then helped him bury Tate between Mount Airy and Winston-Salem.

Stockton never denied killing Tate, but he said it was self-defense. He denied killing Arnder, and he said Tate once admitted to killing the teen.

Gates' testimony "was critical'' in sending Stockton to death row, said Philip Gardner, Stockton's trial lawyer.

Almost immediately, questions arose about the fairness of the trial.

The first involved charges against McBride, who allegedly paid Stockton to kill the teen. McBride, now 55, was charged with conspiracy to commit capital murder on March 7, 1983, two weeks before Stockton's trial. His charge was deferred July 1. Virginia authorities said they would send the evidence to North Carolina and let prosecutors there try him. North Carolina authorities later said there was no "credible'' evidence to try McBride.

McBride declined to comment recently. "They arrested me on nothing, and they just nolle prossed the charges,'' he said. "If I talk, they could reinstate the charges.''

A motion to dismiss McBride's charges alleged that his indictment ``was designed only to impeach'' McBride's credibility.

Gardner immediately filed for a new trial. A July 6, 1983, letter to the Patrick County trial judge said: "The McBride cases have now been dismissed. This is a fact which I contend the prosecution knew from the inception. . . . (McBride's lawyers) have both told me emphatically . . . that it was understood shortly after they were appointed that they would not have to worry about the case or do any work to prepare for the case because the charges against McBride were going to be dropped.''

But the court did not consider this grounds for a new trial.

Even today, Gardner is outraged. "I said to the Supreme Court that the indictment against Tommy McBride was a flat-out sham,'' he said. "The commonwealth would have been in an untenable position without charging McBride, asking the jury to send one man to the electric chair while the man that allegedly hired him had never been charged.''

Next, Bowman allegedly recanted. In a 1984 civil case challenging Patrick County jail conditions, inmate Frank Cox testified he was in jail with Bowman when "Randy did tell me . . . that he lied on Dennis, because he said, `I hate that son of a bitch.' '' Another inmate, Cleveland Martin, echoed this: ``He said he would . . . say anything for anybody if the money was right.''

In 1987, a federal judge vacated Stockton's death sentence when it was learned the 1983 jury was tainted. The owner of a diner told jurors eating lunch that Stockton should be executed. The judge gave Stockton a choice: Hold a new sentencing or settle for a life term.

Insisting he was innocent, Stockton chose the trial. But, under law, no new evidence on the murder could be presented. Stockton again was sentenced to die.

Stockton and his lawyers continued papering state and federal courts with appeals. Then, in 1989, the case took an unexpected turn.

That year, Stockton's lawyers took affidavits from two former Patrick County employees, deputy Clifford Boyd and former sheriff Jesse Williams. The two then repeated their tales to officials in the attorney general's office.

Both men said Randy Bowman was angry after Stockton's trial ``because promises allegedly made to him were not kept,'' records show. Boyd said Bowman was angry because he claimed "Jay Gregory and the Surry County authorities had promised that he would be transferred to another penitentiary or would receive a sentence reduction.'' Bowman claimed both Gregory and Giorno promised he would not be sent back to North Carolina, Williams said.

Stockton's lawyers had made an end run around Giorno, whose hand was now forced. In February 1990, Giorno sent the letter saying: "I am not aware of any promises made to Bowman other than that I told him I would endeavour to see that he would be transferred.''

Before this, Giorno had said there were no promises at all.

In the package accompanying Giorno's letter was a letter from Bowman, dated March 2, 1983 - two weeks before Stockton's trial. Bowman was writing from prison in North Carolina, where he served time for firearm and larceny charges. In it, he told Gregory: "I'm writing you to let you know that I'm not going to court unless you can get this 6 or 7 months I've got left cutoff where I don't have to come back to prison.''

Gregory said recently he was not aware Giorno had sent the letter to Stockton's lawyers. He would not comment further. Giorno reiterated there never was a deal. ``People ask us for stuff all the time,'' he said. "We say, `We can't promise you anything.' That's exactly what happened here.''

Transcripts of Bowman's testimony show that he denied any promises had been made and never mentioned the letter. Gardner asked Bowman: "So you've helped yourself considerably by coming forward with this story by getting charges against you dropped, isn't that a fact?''

Before Bowman could answer, Giorno broke in: "Objection. Objection to that. I think he's trying to lead the jury to believe that some charges were dropped and that's certainly not the case.''

But court records show otherwise. On Aug. 17, 1982, Bowman was taken from Surry County jail to Stuart to testify in Stockton's preliminary hearing. Seventeen days later, Surry County prosecutors dismissed a charge of obtaining stolen property against Bowman.

Court records show that Bowman also received favorable treatment after Stockton's trial. In 1981, he was sentenced to 4 1/2 years for several charges. But records show he was out on parole by November 1983. For the rest of the decade, Bowman was in and out of jail for repeat offenses with only minimal sentences.

Giorno said he had nothing to do with any of this.

One other document was included in Giorno's package: the statement Robert Gates made to Surry County officials in February 1980. In it, Gates gave a detailed account of Ronnie Tate's killing. But he failed when he tried leading police to the body. Later, Stockton showed police where Tate was buried.

According to Gates, Tate was murdered on the night of July 3, 1979. It was between midnight and 12:30 a.m. as they rode back from the killing, Gates said. Stockton was driving.

"He (Stockton) stopped at the Pinnacle exit'' off U.S. 52, Gates said in a statement to police. ``I remember that just as plain as day because there was a sandwich shop there and he stopped . . . and they was a couple police cars setting there in the parking lot that night and I remember I looked inside and I seen a black-headed woman running the cash register and Dennis had to write a check.''

The shop was the Pinnacle Sandwich Shop, which still stands today. It has been owned since May 14, 1967, by Charles Watson.

"We were never open that late,'' Watson recently told a reporter. "Back then, we closed at 10 p.m. weeknights, 11 on weekends. We never had a black-haired woman at the cash register. . . . And July 3, we wouldn't have been open anyway. We always closed up for the Fourth of July.

"Nobody ever came and checked this story till now,'' Watson said. "This is the first I ever heard of it. No Surry County sheriffs, nobody from Patrick County. This was a man's life. It's not that far from Mount Airy. You'd think they'd want to check everything out before they sent some guy to the chair.''

When Roger Keith Coleman was strapped into the electric chair on May 20, 1992, officials put his glasses on his face and he read this statement:

"An innocent man is going to be murdered tonight. When my innocence is proven, I hope Americans will realize the injustice of the death penalty as all other civilized countries have. My last words are to the woman I love. Love is eternal. My love for you will last forever . . . ''

A year-and-a-half later, the U.S. House Judiciary Committee's report on innocent men sentenced to death singled Coleman out:

"The reviews afforded death row inmates on appeal . . . simply do not offer a meaningful opportunity to present claims of innocence,'' the report stated. "Coleman's innocence was debated only in the news media, and considerable doubt concerning his guilt went with him to his execution.''

In March 1982, Coleman, a 33-year-old coal miner from Grundy, was sentenced to death for raping and murdering his 18-year-old sister-in-law, Wanda McCoy. Since Grundy police did not initially find any signs of forced entry into her house, they assumed McCoy opened the door to her killer. Her husband said his timid wife would only allow three people inside their Slate Creek cabin. This included Coleman, who had a previous record of sexual assault.

Soon, Coleman was charged. He maintained his innocence, but prosecutors told the jury there was no forced entry and picked at Coleman's alibi defense.

Yet, from the beginning, these crucial pieces of evidence were withheld from Coleman's court-appointed lawyers:

A police report written 13 days after the murder showed there was, indeed, "a pressure mark which appeared to be a pry mark'' on the door's molding. The mark "appeared to have been made with very little pressure.''

A police report, written six days after McCoy's death, indicated that a fingerprint was lifted from the door. But the print never was analyzed.

A timecard corroborating Coleman's alibi was not turned over.

Coleman's defense depended on a detailed accounting of his every move from 10 p.m. to 11:10 p.m., the time when the murder occurred. Prosecutor Tom Scott tried to show that 22 minutes of that time were unaccounted for: enough time, he said, for Coleman to park his truck, climb a hill, wade a creek, kill McCoy, then return to the truck.

Yet, during a 1985 hearing, "the state trooper who timed the route admitted he had not timed the complete route and had gone a different and shorter route,'' records show. Thus, the state's time estimate was wrong.

A statement by McCoy's husband, taken the night of the murder, was also withheld, said minister James McCloskey, who investigated Coleman's case. In the statement, the husband said he and his wife had argued with Donald Ramey, a man later implicated by five Grundy residents in Wanda McCoy's killing. Ramey never was charged.

Scott, the prosecutor, disagreed that evidence was withheld. "An affidavit signed by Terry Jordan, Coleman's trial lawyer, showed he knew about'' the timecard and the reports on the pry mark and fingerprint, Scott said. "He just didn't think they were important. Whoever said the commonwealth withheld evidence made a bald-faced lie.''

Yet court records question Jordan's changing statements.

In an April 27, 1992, affidavit, Jordan said he was aware of the two police reports and the timecard, but he said he did not think they could help his client. He called the pry mark a "light pressure mark'' and concluded it "would have been laughable'' to use in Coleman's defense.

Yet in a Nov. 12, 1985, hearing, Jordan told a different story. He said he was not aware of any fingerprint and admitted it would have been important evidence. He said he never personally examined the door for pry marks; he did not admit knowledge of the pry-mark report, as he would later. He said he was aware of the timecard and believed it could have been used in the trial, but he never requested it from police.

Other unheard evidence, discovered after Coleman's conviction, also cast doubt on his guilt:

The testimony of inmate Roger Matney, who told jurors that Coleman confessed to the murder while they were in jail together. Yet in a 1991 affidavit, Matney's mother-in-law said she heard Matney say he lied. He said, "If you use your head for something besides a hatrack, you can get out of a lot of prison time that you would have to pull,'' the mother-in-law said.

Court records show that in February 1982, the court released him from jail and suspended his four-year sentence.

The statements of six Grundy residents, who told McCloskey that Donald Ramey had confessed to killing Wanda McCoy. Teresa Horn said that when Ramey tried to rape her in 1987, he said he'd "do her like he did that girl on Slate Creek'' if she didn't quit screaming. Kenneth Clevinger corroborated her statement. During a party, Ramey told Harold Smith and others that he "had a hand in the incident at Slate Creek,'' McCloskey said.

Four women, including Horn, told McCloskey they had been sexually assaulted by Ramey during the 1980s. Yet Ramey never was charged.

In 1992, Horn voiced her charges on a Roanoke TV show. The next day she was found dead. An autopsy later said she died of a drug overdose.

Other unanswered questions remained. Why, in such a grizzly murder, did only three drops of blood wind up on Coleman's trousers? Why, when Coleman's clothes were covered with coal dust, was no coal dust found at the scene? Why was there dirt on Wanda McCoy's hands, arms and fingernails if the entire attack happened inside?

Yet none of this new evidence was reviewed by a court.

Notwithstanding this, DNA tests showed Coleman was the killer, said Scott, the prosecutor. According to expert testimony, 10 percent of the population had B-type blood, as did Coleman and the killer. About 8.5 percent are secretors, meaning their blood type can be detected from body fluids.

As his execution neared, Coleman's attorneys fought for and won a DNA analysis of the semen taken from McCoy's body. Yet their own expert concluded that the alleles - genetic markers - of the rapist matched Coleman's, a match the expert said is found in only 2 percent of the population. Coleman's defenders could never dispute these results, which ultimately swayed Gov. L. Douglas Wilder to deny Coleman's clemency plea.

"With those results, I would have retried the case if I had to,'' Scott said. "I would have been a national folk hero. I would have loved to retry him just to prove to all those do-gooders that we had the right man all along.''

But not everyone in Grundy is convinced. Susan Van Dyke's husband, Philip, was the man whose withheld timecard could have been used in Coleman's defense. Before Coleman was executed, she publicly said she thought Coleman was being railroaded. Shortly thereafter, she received a death threat.

"Somebody called and said I needed to shut my mouth or my body would be the next they found beside a cabin in the woods,'' Van Dyke recently said.

"Roger was innocent as could be,'' she said. "Not many people talk about it now in Grundy, but nobody forgets. If you're poor, like Roger, once the court says you're guilty . . . it never admits it was wrong. You know the right people, get a good lawyer, you get away with murder.

"That's what we learned from Roger Coleman,'' Susan Van Dyke said softly. "It makes me sick. Some of us still hope the truth will come out someday. But we're not holding our breath. Not here in Grundy.''


The Crime

On July 20, 1978, a young man named Kenny Arnder telephoned Dennis Stockton at his home. Arnder wanted Stockton to drive him to Kibler Valley, a remote, wooded area in southwestern Virginia. Arnder said he was scared because someone whom he feared had seen him stealing tires off a car. Stockton agreed, and drove Arnder to Kibler Valley, dropping him off at 6 PM. Stockton left, but later returned around mid-night, finding a number of people who were having a party.

Five days later, Arnder's body was found in a gully near a dirt road in North Carolina, close to the Virginia border. The body was covered with branches and already decomposed, making identification difficult. Arnder's arms were stretched out in the form of a cross and his hands had been chopped off at the wrists. He had been shot between the eyes.

The Suspect

Dennis Stockton already had a criminal record and was one of the last persons to see Kenny Arnder. The police questioned him shortly after Arnder's body was discovered. Stockton readily showed the police guns he had in his house, but they were different calibers than the murder weapon. Then the police left.

Later, Stockton heard rumors about who had killed Arnder. However, Stockton did not go to the police with the information he had heard about the crime.

Two years after the crime, Stockton was in jail on other charges. He heard rumors that the police suspected him of Arnder's murder. He believed he knew where the rumors were coming from and he offered to reveal some new information to the police.

The police took him to his house, where he showed them letters from a "prominent citizen" who had written to Stockton, offering him money in order to have a "rival" killed. Stockton claimed he had been given $2,000, with a promise of $3,000 more if he killed this rival. Stockton said he kept the money, but never killed anyone.

Later, he received another $1,000 and a letter asking him to kill someone else. Again, he kept the money, but did not act on the offer. He gave the letters to the police, indicating that the author of the letters might be the one spreading the rumors about Stockton's killing Arnder as a way of getting back at Stockton for not carrying out the murders requested in the letters. Later, the letters were lost by the police.

Finally, four years after the crime, Stockton was charged in Virginia with the murder-for-hire killing of Kenny Arnder, when another convicted felon offered to testify that he heard Stockton agree to a contract on Arnder's life.

The Trial

Dennis Stockton's trial was held in the rural town of Stuart, Virginia in 1983. Stockton was charged with accepting $1,500 for murdering Kenny Arnder from Tommy McBride. Allegedly, McBride was angry with Arnder for crossing him on a drug deal and wanted Arnder killed as a message to others. Arnder's mother testified that the last person she saw with her son was Dennis Stockton.

Randy Bowman testified that he had been at McBride's house trying to sell some stolen goods and heard McBride offer to pay $1,500 to have Arnder killed. Bowman testified that Stockton quickly agreed to the deal. Bowman's testimony was the only evidence directly linking Stockman to Arnder's murder. Bowman stated that he was not given any promises in return for his testimony, although he was facing criminal charges.

At the sentencing hearing, a different witness testified that he had seen Stockton kill and bury another man named Ronnie Tate in North Carolina in 1979. Ronnie Tate had also been at the park in Kibler Valley the night Kenny Arnder was last seen alive. Stockton claimed he killed Tate in self-defense after Tate had pulled a gun and threatened to shoot him. Although Stockton had admitted to this killing earlier and had even led police to the body, it helped establish for the jury that Stockton would be a future danger to society, and he was sentenced to death.

Meet the victim

Kenny Arnder was 18 years old when he was killed. He was the second youngest of Wilma Arnder's six children. She had raised all the children herself after her husband left her. Kenny was a tall boy, with long hair that was common in the 1970s. He was easy-going, but in his teens he started associating with a rough crowd. Sometimes he would live away from home. When his body was found, he was wearing jeans, a T-shirt with a slogan joking about drugs, and a necklace with a white stone, the same clothes he had been wearing when he was last seen alive five days before.

Arnder had known Stockton for some months and looked up to him. Mrs. Arnder recognized Stockton because he had been at their house a few times. Stockton telephoned her after Kenny was reported missing and again when his body was found. She did not doubt that Stockton was the killer, but she found it cold-blooded that someone could kill his friend.

Meet the defendant

Dennis Stockton was born in 1940 in North Carolina. He spent most of his adult life in prison, work camp, or jail. His first stint in jail came when he was locked up for passing bad checks. His parents let him stay in jail over the weekend to teach him a lesson. He was sexually assaulted by a guard. When he was 17, he was sentenced to three-to-five years in prison for two counts of passing bad checks in his parents' names. When he returned home at age 20, he was already a hardened adult.

Stockton's early years were spent in Shelby, North Carolina, where he lived with his parents in a small rented house near the cotton mills. He did well in school and had an IQ estimated between 130 and 160. He loved baseball and played whenever he could. His father was away for much of his childhood, fighting in World War II. When he returned, he was often abusive to Dennis.

Stockton played baseball on a prison team and claimed he was scouted by the New York Yankees. But he never made it to the big leagues. He became heavily involved with drugs, both using and dealing, committing arson by contract, safecracking, and carrying a gun. Police frequently sought him out as a suspect in crimes. He sported a prison tattoo, and idolized race car drivers. At one point, police claimed they had seen a human body part preserved in a jar in Stockton's house. He said he had gotten it from a biker gang and just kept it to show off at parties.


852 F.2d 740

26 Fed. R. Evid. Serv. 647

Dennis Waldon STOCKTON, Petitioner-Appellee,
COMMONWEALTH OF VIRGINIA; Edward W. Murray, Director,
Virginia Department of Corrections,

Dennis Waldon STOCKTON, Petitioner-Appellant,
COMMONWEALTH OF VIRGINIA; Edward W. Murray, Director,
Virginia Department of Corrections, Respondents-Appellees.

Nos. 87-4002(L), 87-4003.

United States Court of Appeals,
Fourth Circuit.

Argued Feb. 1, 1988.
Decided July 22, 1988.

Before WIDENER, ERVIN and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

Dennis Stockton was tried before a jury in the Circuit Court of Patrick County, Virginia, for the murder for hire of Kenneth Arnder. The guilt phase of Stockton's trial lasted for two days and, on March 23, 1983, the jury found him guilty of capital murder. The sentencing phase of the trial took place the following day. The jury recommended that Stockton be sentenced to death.

Stockton petitioned for federal habeas relief pursuant to 28 U.S.C. Sec. 2254, seeking to have his death sentence vacated and his conviction overturned. He contends that his sentence was tainted by prejudicial comments made to the jurors during their deliberations. While several members of the jury lunched at the Owl Diner on the day they deliberated Stockton's sentence, the proprietor of the diner approached the jurors and told them, among other things, that "they ought to fry the son of a bitch." We think such communications denied Stockton his right to a fair and impartial jury during the sentencing deliberations. We therefore affirm the district court's judgment vacating Stockton's death sentence. The state shall have the choice of either reducing his sentence to one of life imprisonment or sentencing him anew.

Stockton also claims that he was denied a fair trial on several grounds, including other extrajudicial contacts with jurors during the guilt phase of his trial, the admission of testimony describing his commission of a second murder, improper jury deliberations, and prosecutorial misconduct. We hold that Stockton was not denied a fair trial in the guilt phase of the proceedings, and we affirm the judgment of the district court denying habeas relief on his conviction.


On July 25, 1978, the body of eighteen year old Kenneth Arnder was discovered in a remote area of Surry County, North Carolina. Arnder had been shot in the head and both of his hands had been severed at the wrists. The parties stipulated that the cause of death was either the wound to the head, the severing of the hands, or both.

Stockton was arrested for Arnder's murder on June 25, 1982, in Patrick County, Virginia, a small county in southside Virginia with a population of less than 20,000 people. He was tried in the Circuit Court of Patrick County on March 21 to 24, 1983. His arrest and trial generated considerable local publicity. The print and broadcast media featured reports of the trial and pretrial proceedings as well as accounts of investigations connecting Stockton to several local murders, the discovery of the victims' bodies, and Stockton's past criminal history. In one newspaper article, Stockton was labeled "Surry County's public enemy number one" and compared to Charles Manson.

The evidence presented against Stockton at his trial was substantial. Randy Bowman testified that he, Stockton, Ronnie Tate, "Sunshine" Hatcher, and Diane and Tommy McBride were at McBride's home in June of 1978 when Tommy McBride offered Bowman $1,500 to kill the "Arnder boy," who had offended McBride in a drug deal. Stockton offered to do the job because he needed to make money. Stockton and McBride then went into another room together.

Arnder's mother testified that she last saw her son alive on July 20, 1978. That evening Arnder left his mother's home with Stockton to camp out in a picnic area in Patrick County to avoid difficulties arising from his involvement with some stolen property. Arnder's body was found five days later. Further evidence at trial included Robert Gates' testimony that in July of 1979 he witnessed Stockton shoot and kill Ronnie Tate for "running his mouth" about the Arnder killing. There was also testimony that on several occasions Stockton had admitted to killing Arnder.

On March 23, 1983, the jury found Stockton guilty of the murder for hire of Kenneth Arnder. On the following day, pursuant to Virginia's bifurcated trial procedure for capital crimes, the jury fixed Stockton's sentence.

During the sentencing deliberations, the jury broke for lunch. At least two groups of jurors, one group of three women and another of three or four men, ate at the Owl Diner, a restaurant near the courthouse. The atmosphere at the diner was a casual one. One juror recognized two court deputies at a nearby table and James Blackard, a witness subpoenaed to testify at the trial, was seated with his wife in a booth across the aisle from a group of male jurors.

The Blackards testified that Glenn Puckett, the owner of the Owl Diner, approached the jurors and inquired whether they had reached a decision yet. One of the men replied that they had all decided except for "one damned woman." Puckett then commented to the jurors that he thought "they ought to fry the son of a bitch." According to the Blackards, Puckett remained and conversed with the jurors for several minutes.

The jurors resumed sentencing deliberations after the lunch break. They concluded that Stockton was likely to "commit criminal acts of violence that would constitute a continuing serious threat to society" and that his conduct was "outrageously or wantonly vile, horrible, or inhuman" and fixed his sentence at death.

The trial court held a post-conviction hearing on June 7, 1983. At the hearing, the court took testimony concerning the Owl Diner incident. The court concluded from the evidence presented that Puckett had asked members of the jury whether they had reached a decision, but that Stockton had suffered no prejudice as a result of that query. The court also indicated that something else may have been said but that the witnesses did not know what it was. The court then entered final judgment against Stockton and imposed the death sentence.

Stockton perfected a direct appeal of his conviction to the Supreme Court of Virginia. The conviction and sentence were affirmed. Stockton v. Commonwealth, 227 Va. 124, 314 S.E.2d 371 (1984). Certiorari was denied by the United States Supreme Court. Stockton v. Virginia, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

After some further state proceedings, Stockton's execution was scheduled for October 3, 1986. Stockton petitioned the United States District Court for the Western District of Virginia for a stay of execution and federal habeas corpus relief. The stay was granted on October 2, 1986. A hearing was then held on the habeas petition, and on June 18, 1987, the district court granted Stockton a writ of habeas corpus vacating his death sentence and granting him a new sentencing hearing or a reduction of his sentence to life imprisonment. The Commonwealth appeals and Stockton cross appeals the district court's denial of relief with respect to his conviction.


Glenn Puckett approached a group of jurors while they lunched at the Owl Diner on the day they deliberated Stockton's sentence. After inquiring about the progress of their deliberations, Puckett told the jurors that he thought "they ought to fry the son of a bitch." The import of this comment is the primary issue in this case.1


The Commonwealth argues that the defendant bears the burden of establishing that unauthorized third party communications with members of the jury resulted in actual juror partiality. It is true that the defendant must first establish both that an unauthorized contact was made and that it was of such a character as to reasonably draw into question the integrity of the verdict. Once such a contact has been established, however, the government bears the burden of demonstrating the absence of prejudice.

The Sixth Amendment guarantees a criminal defendant the right to trial by an impartial jury. No right touches more the heart of fairness in a trial. The fact that there was here no threat or inducement, no invasion of the sanctity of jury room deliberations, does not still the sense that something went awry.

The Supreme Court has long recognized the dangers to impartiality posed by unauthorized communications between third parties and members of the jury. Almost a century ago the Court declared that "[p]rivate communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, 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). In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Court reinforced the rule set forth in Mattox:

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial ... The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.

Id. at 229, 74 S.Ct. at 451.

The rules of evidence make it difficult for either party to offer direct proof of the impact that an improper contact may have had on the deliberations of the jury. See Fed.R.Evid. 606(b); Mattox, 146 U.S. at 149, 13 S.Ct. at 53 (quoting Woodward v. Leavitt, 107 Mass. 453 (1871)) ("the evidence of jurors as to the motives and influences which affected their deliberations, is inadmissible either to impeach or to support the verdict"). The right to an impartial jury belongs to the defendant, however; thus a rebuttable presumption of prejudice attaches to the impermissible communication.

While juror testimony concerning the effect of the outside communication on the minds of the jurors is inadmissible, the state may rebut the presumption of prejudice through whatever circumstantial evidence is available, including juror testimony on the facts and circumstances surrounding the extraneous communication. This circuit has held in the civil context that the party supporting the jury's verdict must overcome the rebuttable presumption of prejudice that attaches once an impermissible contact with the jury has been established. Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1535-37 (4th Cir.1986). If this was true in the civil context, it would appear no less applicable to a criminal trial.

We cannot accept the Commonwealth's argument that the presumption of prejudice attaching to extrajudicial communications was overturned by the Supreme Court in Tanner v. United States, --- U.S. ----, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) or Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Neither of those cases dealt with the question at issue here--the effect of a third party communication to the jury about the case.

In Tanner, the Court held that juror testimony concerning drug and alcohol use by members of the jury during the trial was inadmissible in a post-verdict evidentiary hearing under Rule 606(b) of the Federal Rules of Evidence and was not required by the Sixth Amendment. Tanner, 107 S.Ct. at 2750-51. The defendant's Sixth Amendment right to a competent and unimpaired jury was held to be amply protected by the opportunity to examine a juror's suitability during voir dire and to introduce non-juror evidence of juror misconduct and impairment in a post-verdict evidentiary hearing. Id. at 2751.

In Phillips, the Court declined to impute bias to a juror who, during the course of trial, applied for employment as an investigator with the district attorney's office. The Court again noted that the beliefs, biases, and preferences of every juror may be explored and exposed by the defendant at voir dire. Further, when some external manifestation of a juror's predisposition subsequently calls the juror's impartiality into question, the defendant is afforded the opportunity to establish the juror's actual bias. Id. 455 U.S. at 215-17, 102 S.Ct. at 945-46.

Where, however, the danger is not one of juror impairment or predisposition, but rather the effect of an extraneous communication upon the deliberative process of the jury, the defendant's right to an impartial jury requires that the government bear the burden of establishing the nonprejudicial character of the contact. See, e.g., Haley, 802 F.2d at 1535-36 and n. 5 (civil case); United States v. Butler, 822 F.2d 1191, 1195-96 and n. 2 (D.C.Cir.1987); United States v. Littlefield, 752 F.2d 1429, 1431-32 (9th Cir.1985). But see United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985).

Although neither Tanner nor Phillips dealt directly with extraneous communications to members of the jury, those cases are nonetheless instructive in any situation where a jury verdict is being impeached. The benefits of ensuring the finality of the jury's verdict and avoiding needless harassment of jurors by the losing party are relevant in all such cases. See Tanner, 107 S.Ct. at 2749-50.

Thus, jury verdicts are not to be lightly cast aside. Our system of criminal justice rests in large measure upon a confidence in conscientious juror deliberations and juror attentiveness, both to the evidence at trial and to the instructions of the trial judge. This confidence is not to be displaced every time a third party communication reaches the ears of a juror during trial. See id. at 2747-48; Phillips, 455 U.S. at 209, 102 S.Ct. at 940. Thus, while a presumption of prejudice attaches to an impermissible communication, the presumption is not one to be casually invoked.

When this sequence of proof involves fact-finding by the state courts, those determinations must be afforded further deference in federal habeas proceedings. Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981). Testimony on the Owl Diner incident was taken by the state trial court in a post-conviction hearing. Unfortunately, the trial court failed to make a factual finding on the critical questions presented here: whether Puckett commented to the jurors that "they ought to fry the son of a bitch" and, if so, whether that juror contact was prejudicial. Since "the merits of the factual dispute were not resolved in the state hearings," the federal habeas court properly held an evidentiary hearing on the question. Townsend v. Sain, 372 U.S. 293, 313-16, 83 S.Ct. 745, 757-59, 9 L.Ed.2d 770 (1963); 28 U.S.C. Sec. 2254(d)(1).2


We agree with the district court that Puckett's comment posed a potential for prejudice that was too serious to ignore.

We note at the outset that Puckett did not deny making the offending remark. In fact, he testified before the district court that "knowing me, I could have said it." Excerpts from juror depositions and the testimony of James Blackard and Ginger [Blackard] Hall, who overheard the conversation, were also received by the court.

Based upon this evidence the district court found that

[t]he testimony of Blackard and Hall clearly shows that some of the jurors were contacted by Puckett. Their testimony is corroborated by some of the juror testimony as well as that of Puckett. Moreover, their testimony and the corroboration leave little doubt that the matter discussed by Puckett was the focus of the jury's deliberations, i.e., whether to impose a life or death sentence upon Stockton.

The district court further concluded that "it is just as clear that Puckett's comments were not 'innocuous.' Indeed, a comment could be no more pointed tha[n] 'I hope you fry the son-of-a-bitch.' Even the milder characterization of Puckett's comments as being 'nasty' or 'unfavorable to Stockton' would not permit a finding of being 'clearly innocuous.' " These findings are amply supported by the evidence.

The circumstances surrounding Puckett's comments do not, as the Commonwealth suggests, rebut the presumption of prejudice that attaches to this contact. This was no mere offhand comment. Puckett knew that he was addressing his opinion to members of the jury--his comment about what should happen to Stockton was preceded by an inquiry as to whether the jurors had reached a decision. Further, the comment bore on the exact issue--whether to impose the death penalty--that the jurors were deliberating at that time. Puckett's comment was then followed by several minutes of conversation between Puckett and the jurors, the subject of which is unknown.

While the Commonwealth disputes the district court's characterization of Puckett as "a rather prominent local figure," it is not unfair to assume that a local restaurant owner was a source or barometer of local sentiment. The fact that Puckett's comment was not mentioned in jury deliberations does not persuade us that it had no prejudicial impact upon the jurors' minds. Indeed, two jurors still remembered the essence of the Owl Diner incident four years after it occurred.

Emotional environments require that the deliberateness of jury decisionmaking be preserved. Stockton's trial generated intense publicity and interest within this small community. The details of the murder of which he stood accused understandably occasioned outrage. The casualness with which the trial was conducted stands in sharp contrast to this charged milieu. We do not hold that the trial court abused its discretion in refusing to grant a change of venue or to sequester the jury. Stockton, 314 S.E.2d at 380.

We are troubled, however, by the trial court's failure to take more modest steps to protect the jurors from community sentiment. Throughout the brief trial and sentencing deliberations, jurors were simply released for lunch. They dined in small groups in restaurants near the courthouse frequented by the attorneys, witnesses, and court personnel. Contrast Andrews v. Shulsen, 600 F.Supp. 408, 419 (C.D.Utah 1984) (jurors kept together and away from others and provided a separate dining room).

They were approached by interested citizens curious about the progress of their deliberations. Although many jurors attempted dutifully to ignore expressions of public opinion and to avoid commenting on the case, they were powerless to avoid contact with the public. As a result they were exposed to the type of pointed and prejudicial suggestion whose utterance encourages the all too human tendency to pursue the popular course.


Stockton challenges the validity of his underlying conviction on several grounds. We find no violation of Stockton's rights with regard to the guilt phase of his trial. We thus affirm the district court's denial of habeas relief with respect to the jury's verdict that Stockton was guilty of murder for hire.


Stockton argues that his conviction should have been reversed because the juror depositions ordered by the district court indicate that there were extrajudicial contacts with members of the jury during the course of the trial. We reject this contention for two reasons.

First, unlike the Owl Diner incident, no mention of these additional jury contacts was ever made at any stage of the state court proceedings. Although Stockton claims he learned of these contacts for the first time as a result of juror depositions conducted in federal court, he has failed to demonstrate sufficient cause for not attempting to pursue in state court a line of inquiry that surely was suggested by his claim of jury partiality as a result of the denial of his motions for sequestration of the jury and a change of venue. Raising stale claims for the first time in federal court is precisely what the Supreme Court has warned litigants to avoid. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977) (criminal trial and sentencing in state court is the "decisive and portentous event").

Secondly, reversal is not required anytime a juror hears anything at all about a case. Even the most scrupulous jurors may not be able to avoid overhearing all comment on a trial. Jurors are not rendered "partial" simply because they become aware of the existence of negative community sentiment. "The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." Smith v. Phillips, 455 U.S. at 217, 102 S.Ct. at 946. However, "due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable." Id.

The other alleged contacts differed markedly from the Owl Diner incident. While some of the jurors had the general impression that public sentiment disfavored the defendant, their recollection of specific instances of third party communications was vague. Juror Bowman recalled a neighbor telling her, "You probably know what I think, but I can't tell you." She testified that strangers occasionally commented that they thought Stockton was guilty. She "figured ... that most people were in favor of the death penalty," but she properly excused herself when people began to discuss the trial. Juror Hughes testified that "people naturally think 'well he shot this man in the head and cut his hands off, you're going to put the noose around his neck, right?' " When asked if anyone told him that Stockton should be given the death penalty, Hughes responded, "No, sure didn't."

As noted above, Stockton bears the initial burden of establishing both that the extrajudicial contacts occurred and that they were of such a nature as to reasonably cast doubt on the validity of the jury's verdict. See Haley, 802 F.2d at 1537 and n. 9. Stockton has failed to carry his burden in that regard. Other than the Owl Diner incident, there is no clear evidence of instances in which so pointed an expression of community displeasure was communicated directly to members of the jury. We are satisfied from the nature and context of these contacts that they were indeed innocuous and did not prejudice the jury's deliberation of Stockton's guilt or render that phase of his trial unfair.


We likewise find no merit to Stockton's claim that his right to a fair trial was violated by improper deliberations by subgroups of jurors. The district court found, and the record reveals, that the only evidence relating to charges of improper deliberations concerned conversations between three jurors who shared a ride to and from the courthouse. These conversations consisted in part of small talk about the manner in which the trial was being conducted and the appearance of certain witnesses.

The question of defendant's guilt or innocence was not discussed. It is certainly permissible for jurors to carpool to and from court without giving rise to a question of subset deliberations. It may also be unrealistic to think that jurors will never comment to each other on any matter related to a trial. Even if these conversations violated the trial court's instructions to the jurors not to discuss matters relating to the trial, there is no evidence that the merits of the case were deliberated. There was thus no prejudice to the defendant as to warrant a new trial. See United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974).


The evidence presented against Stockton at his trial included the testimony of Robert Gates, an eyewitness to the murder of Ronnie Tate. Gates testified that in July of 1979, he saw Stockton shoot and kill Tate for "running his mouth" about the Arnder murder. Stockton testified on his own behalf that he had killed Tate in self-defense when Tate, who was "real messed up on drugs," pulled a gun on him.

The state called Gates in rebuttal. Gates testified in graphic detail about how Stockton killed Tate in cold blood. He testified that Stockton shot Tate in the chest. Stockton then walked over to Tate and told him to get up or he would shoot him in the face. About five minutes after Stockton shot Tate the first time, Stockton shot Tate twice more as he begged for his life. Stockton then forced Gates to dig a grave for Tate's body and threatened to do the same thing to Gates if he talked about the murders.

Stockton reiterates here the claim previously raised on his direct state appeal, that this testimony was so inflammatory and prejudicial as to amount to a denial of his due process right to a fair trial. We agree with the Virginia Supreme Court, however, which held that "the testimony was so relevant and probative to the truth-finding process that its probative value greatly outweighed any prejudicial effect." Stockton, 314 S.E.2d at 383; see United States v. Pate, 426 F.2d 1083, 1086 (7th Cir.1970), cert. denied, 400 U.S. 995, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971).

As the Virginia Supreme Court observed:

The only reasonable inference which can be drawn from Gates' testimony is that Tate knew Stockton killed Arnder, and Stockton, believing Tate was telling others about the murder, killed Tate to silence him. Clearly, the two offenses were interrelated, and Gates' testimony showed both Stockton's guilty knowledge of Arnder's murder and his desire to conceal his guilt.

Stockton, 314 S.E.2d at 383.

It is true that the details of the Tate murder were gruesome, but this was unavoidable due to the nature of the act. Probative evidence of knowledge is not rendered inadmissible simply because it depicts a hideous crime. Moreover, the admissibility of evidence is generally a matter of state law which does not properly concern a federal habeas court unless it impugns the fundamental fairness of the trial. Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960). Stockton was not denied due process by the introduction of this evidence, the relevance and probative value of which outweighed any possibility of unfair prejudice to him.


Stockton contends that Commonwealth Attorneys engaged in several acts of misconduct designed to discredit the testimony of Stockton and principal defense witnesses, which denied him due process. We find these contentions meritless.

Randy Bowman testified that in July of 1978, when he, Stockton, Ronnie Tate, "Sunshine" Hatcher, and Tommy and Diane McBride were at the McBrides' house, Tommy McBride offered Bowman $1,500 to kill Kenneth Arnder. He further testified that Stockton offered to do the job because he needed money. This testimony conflicted with that of Tommy and Diane McBride. Tommy McBride testified that he did not offer to pay Stockton, Bowman, or anyone else to kill Arnder. Diane McBride testified that the events described by Bowman never took place.

Stockton contends that the Commonwealth indicted Tommy McBride as the principal in the murder for hire of Arnder for the sole purpose of impeaching his testimony on behalf of Stockton. Both the Virginia Supreme Court and the federal district court found no evidence to support this claim.

The fact that McBride's indictment was obtained two weeks before Stockton's trial, was served on the day McBride testified, and was dismissed three weeks after Stockton's sentence so McBride could be prosecuted in North Carolina does not give rise to an inference of an improper motive on the part of the state. In fact, any inference must be to the contrary since, under Virginia law, the indictment had to be brought by the action of a grand jury which must find probable cause to return a "true bill." See Virginia Code Sec. 19.2-191 (1983).

Furthermore, Stockton has failed to show that he was in any way prejudiced by the government's use of the indictment to impeach McBride. McBride's prior criminal record already put his credibility in doubt. McBride was allegedly the principal in the murder for hire. His involvement in the murder could have been argued with or without the indictment. McBride's incentive to deny hiring Stockton to kill Arnder remained the same whether or not he was under indictment, and Diane McBride was similarly interested in protecting her husband in either case. The evidence amply supports the state court's conclusion that Stockton failed to prove his allegations of improper motive and that, in any event, the indictment resulted in no prejudice to Stockton. Stockton, 314 S.E.2d at 387.

Stockton also alleges prosecutorial misconduct as a result of improper cross-examination of him by the state. No objection to this testimony was made until the day after it was presented. The Virginia Supreme Court found that Stockton had waived his objection to this evidence by failing to object contemporaneously to its introduction. See Stockton, 314 S.E.2d at 384 n. 2. The state court's finding of procedural noncompliance under state law binds the federal courts, and Stockton has failed to establish "cause and prejudice" for his failure to follow Virginia's contemporaneous objection rule. Wainwright v. Sykes, 433 U.S. at 86-87, 97 S.Ct. at 2506-07.


Stockton contends that the district court improperly refused to consider newly discovered evidence that Bowman had lied when he testified that Stockton accepted McBride's offer to pay $1,500 for the murder of Kenneth Arnder. The newly discovered evidence consists of the affidavit of Bowman's cellmate, Frank Cox, in which Cox stated that Bowman told him that "he [Bowman] had lied at the trial of Stockton." Stockton argues that Bowman's testimony was the only evidence that Arnder was murdered for hire and that evidence challenging the credibility of that testimony is highly material.

We disagree. To warrant a federal evidentiary hearing on the basis of newly discovered evidence, the "evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759. The grounds for habeas relief on the basis of newly discovered evidence are exceedingly narrow:

When public officers connive at or knowingly acquiesce in the use of perjured evidence, their misconduct denies a defendant due process of law. Recantation of testimony alone, however, is insufficient to set aside a conviction on the ground that the due process clause has been violated. A habeas corpus petitioner must show that the prosecutor or other government officers knew the testimony in question was false in order to prevail.

Thompson v. Garrison, 516 F.2d 986, 988 (4th Cir.1975) (citations omitted), cert. denied, 423 U.S. 933, 96 S.Ct. 287, 46 L.Ed.2d 263 (1975).

Stockton has made no allegations of prosecutorial misconduct with respect to Bowman's testimony. In addition, the evidence he proffers is not of such a nature as to bring about a different trial result. There has been no proffer that Bowman would himself recant his prior testimony and it is questionable whether Cox's hearsay testimony of Bowman's alleged statements would be admissible at trial. This hearsay evidence addressed only the credibility of Bowman's testimony, which had been contradicted by four other witnesses, including the defendant. Stockton is therefore not entitled to relief on this ground.


The judgment of the district court denying habeas relief on Stockton's conviction of murder for hire is affirmed. The judgment vacating his death sentence and imposing a sentence of life imprisonment or awarding a new sentencing hearing is also



WIDENER, Circuit Judge, concurring and dissenting:

I concur in those parts of the opinion which affirm the conviction and which otherwise deny relief, but, as to the question of jury bias, I respectfully dissent.

I doubt the validity of applying our Haley presumption of prejudice1 in this case following the decision in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), although I recognize that Haley is the rule in this circuit. I also doubt that Federal Rule of Evidence 606(b) should be applied over literally so as not to permit the State to introduce at least some evidence from the jurors who heard any remarks by Puckett to say whether or not such remarks had any effect on them personally, this without invading the deliberations in the jury room and so as to uphold, not impeach, the verdict. To hold, as we do, that any extraneous communication to a juror is presumably prejudicial unless innocuous, and then prevent the State from proving lack of prejudice by the very juror involved, very nearly places the State in a box from which escape is difficult if not impossible. Such questions of bias are freely explored on voir dire prior to a trial, and limited exploration of the same "with great caution in the use of such evidence" would seem to have been the rule absent Rule 606(b). Mattox v. United States, 146 U.S. 140, 148, 13 S.Ct. 50, 52, 36 L.Ed. 917 (1892). See also Smith v. Phillips, 455 U.S. 209, 217 n. 7, 102 S.Ct. 940, 946, n. 7, 71 L.Ed.2d 78 (1982), which did not consider Rule 606(b). Indeed, Remmer v. United States, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (1956) (Remmer III ), requires the inquiry at the required hearing to include the "...communication with the juror and the impact thereof upon him then, immediately thereafter, and during the trial...." 350 U.S. at 379, 76 S.Ct. at 426. If the Constitution imposes a hearing on the States, as here, then the rules of the hearing must also be imposed regardless of Rule 606(b).

While the above protests may turn out to be little more than lamentations about a result I think is unjustified on account of the almost casual comments of a restaurateur, our decision, I think, has a pronounced and basic flaw. That is that Stockton is procedurally barred from raising this claim under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and subsequent like cases. Since Stockton could have raised the question on direct appeal and did not, absent cause and prejudice, which are not present here, he is procedurally barred under state law from its consideration in a state court, and we may not consider it now. Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980) (en banc). See also Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

An examination of the opinion of the Supreme Court of Virginia in 314 S.E.2d 371 (Va.1984), of the 19 assignments of error in that case and of the briefs filed discloses no mention of jury bias on account of the offending statement by Puckett so pronounced as to be worthy of argument in the sense presented here.

The minor consequence that was laid to this is corroborated by an examination of Stockton's petition for collateral relief by way of habeas corpus filed in the Circuit Court of Patrick County, and the written opinion of that court denying relief, which petition was prepared by attorneys instead of by Stockton, and which included 11 claims for collateral relief, including 7 charges of ineffective counsel, but which never mentioned any question of jury bias caused by an outside communication such as is now claimed.

In Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), the Court held that a federal petitioner who is a state prisoner must "... present the state courts with the same claim he urges upon the federal courts." 404 U.S. at 276, 92 S.Ct. at 512. The Court pointed out that "This is not a case in which factual allegations were made to the federal courts that were not before the state courts." 404 U.S. at 276, 92 S.Ct. at 512.

It was a case in which a state prisoner had never brought before the state courts a Fourteenth Amendment claim of denial of equal protection of the laws. Rather, his claim, upon the same facts, was whether the indictment procedure in Massachusetts was consistent with the Fifth Amendment's requirement of grand jury indictment. While the prisoner had claimed in the state courts under the Fourteenth Amendment as it respected his Fifth Amendment claim, he had not presented his Fourteenth Amendment equal protection claim to the state courts.

The Court held that the prisoner had not "... provided the Massachusetts 'court with "an opportunity to apply controlling legal principles to the facts bearing upon [his] constitutional claim." ' " 404 U.S. at 277, 92 S.Ct. at 513. And, most importantly, the court added "To be sure, respondent presented all the facts. Yet the constitutional claim the Court of Appeals found inherent in those facts was never brought to the attention of the state courts." 404 U.S. at 277, 92 S.Ct. at 513.

I see no significant difference in the case before us and Picard. While Picard was a case involving exhaustion of state remedies, its procedural rule for presenting a claim should apply here. No claim is made of cause which prevented the raising of the claim. Accordingly, I suggest that Wainwright should control the disposition of this case.

I am supported in my reasoning by the record of the state trial, and the likely reason for the claim not having been perfected heretofore. Everyone connected with the case simply thought there was nothing to it, and there was not.

After the conclusion of the state trial, the attorneys moved to set aside the verdict on the ground of jury bias by reason of the now complained of statements by Puckett. The state court had a hearing at which all interested parties were permitted to participate and at which evidence was taken which met the requirements of Remmer I and Smith. The trial court heard the testimony of a Mr. and Mrs. Blackard, who were not jurors but were present, and of one Cockram who had been the foreman of the jury.

Mrs. Blackard testified on direct examination:

Q. All right, now, tell the Judge what you saw and what you heard.

A. They were sitting together and, ah, Glen Puckett, the owner of the diner, came up and was talking to them about the trial. He wanted to know if they had reached a verdict and one of them, I did not know which one, said that all of them had decided except for one woman, something to that effect is what was said.

And, on cross-examination, she added nothing:

Q. Mrs. Blackard, the only statement made was--the only statement made by this third person, Mr. Puckett, was he asked if they had reached a verdict and the response was that, ah, they were all in agreement except for one lady.

A. Something to that effect, yes.

Her husband, Blackard, on direct examination, testified:

Q. With Mr. Puckett. And how do you know they were talking about the trial and not talking about going fishing or hunting or something?

A. Well, ah, Glen [Puckett] came up and asked them if they'd come to a verdict yet and, ah, the best of my knowledge, they said they had all except for one, ah, one person, no, he said for one reason and, ah, Mr. Puckett said what's that; he said haven't you guessed yet, it's a damned woman. And then, ah, as I recall, Glen Puckett says something to the effect, said I hope they fry that son-of-a-bitch.

But, on cross examination, one of his responses was:

Q. Mr. Blackard, other than the statement made by the--by Mr. Puckett in which he inquired about whether they had reached a verdict, that was really the only conversation that you heard, isn't that right?

A. That's true.

After the conclusion of the testimony and argument of counsel, the court delivered its oral decision, which is quoted in full:

THE COURT: All right, gentlemen. If I understood Mr. and Mrs. Blackard's statement as to what they heard was said, was that this Mr. Puckett asked if they had reached a decision and some comment was made they all had decided but one woman. I feel that the statement in itself is not prejudicial, not harmful and Mr. Puckett says they didn't discuss anything any further. Mr. and Mrs. Blackard seem to suspect that maybe something else was said but they don't know what was said. So, based upon that, I see no harm or prejudice in the statement that was made and I'll overrule the motion.

From the trial court's opinion, we see that it found as a fact that "Mr. Puckett asked if they had reached a decision but some comment was made that they all had decided but one woman." It further found as a fact that "Mr. and Mrs. Blackard seem to suspect that maybe something else was said but they don't know what was said." Both of these findings are quite justified by the testimony. While it is true that Blackard testified on direct examination that Puckett had said "I hope they fry that son-of-a-bitch," it is just as true that on cross-examination that Blackard testified that it was true that "... other than the statement made by the--by Mr. Puckett in which he inquired about whether they had reached a verdict, that was really the only conversation that we heard, isn't that right?" (The latter part of the last sentence is clumsy grammar, but its import is such that I do not wish to lose effect by any accusation of quoting out of context.)

I think that the trial judge was not required to accept Blackard's testimony that Puckett had said he hoped they would fry the son-of-a-bitch. Blackard, in one breath, stated that such offending statement had been made, and, in the next breath, denied it, so the trial judge was entitled to believe as he obviously did that the statement had not been made.2 This was entirely a question of the weight of the evidence and the credibility of the witnesses, a matter peculiarly entrusted to a trial judge, especially upon oral testimony, as here.3

In addition, the finding of the state trial judge is supported by 28 U.S.C. Sec. 2254(d). I further note that in Smith the finding of the state trial judge of no "prejudice against the [respondent]", 455 U.S. at 213, 102 S.Ct. at 944, was accorded the presumptively correct protection of Sec. 2254(d). 455 U.S. at 218, 102 S.Ct. at 946. I see no reason the "no harm or prejudice" finding of the state trial judge here should not be accorded the same presumptive validity. There is no convincing evidence to the contrary. Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981).4

Accordingly, I would reverse the grant of the writ.


The Commonwealth argues that Stockton is procedurally barred from raising in his federal habeas proceeding the claim that he was denied a fair trial by an impartial jury as a result of the Owl Diner incident. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We disagree.

Although the issue was not framed with the precision that one would prefer, Stockton's briefs to the Virginia Supreme Court raised the question of jury impartiality in light of Puckett's comments to the jurors in the Owl Diner and the general emotionalism that surrounded his trial. In addressing the trial court's refusal to grant a change of venue, Stockton argued in his briefs:

A witness testified that the foreman and two other jurors were at the Owl Diner having lunch and he heard the owner discussing the case briefly with those jurors. According to the witness, the restaurant owner had said to the foreman that he hoped "they fry that son of a bitch." ... So now we must wonder: was the verdict the product of the quiet, cool impartiality of jurors who truly stood "indifferent" to the cause, or is the verdict tainted by all the above factors? ... The fact that twelve good men and women may have tried their best to give the defendant a fair and impartial trial is of no moment. The question is whether they stood "indifferent to the cause" or impartial as a deliberative body. It would ignore human nature and common sense not to be seriously and gravely concerned about the impartiality of the jury that convicted Stockton.

Stockton's briefs "fairly presented" his constitutional claim of juror partiality to the Virginia Supreme Court giving the state courts "a fair opportunity to consider ... [that] claim and to correct [the] asserted constitutional defect." See Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). In sum, we do not believe that Stockton's claim is procedurally barred on federal habeas by virtue of a failure to raise it before the Virginia Supreme Court.


In the state trial court hearing James Blackard testified that Glenn Puckett "came up and asked [the group of jurors] if they had come to a verdict yet.... And then Glen Puckett says something to the effect, said I hope they fry that son-of-a-bitch." Ginger Blackard testified that "Glen Puckett, the owner of the diner came up and was talking to them about the trial. He wanted to know if they had reached a verdict, and one of them ... said that all of them had decided except for one woman."

On cross-examination, she stated that Puckett "sat down and talked to them but I wasn't paying any attention to what they were talking about." The jury foreman, Gary Cockram, also testified at the hearing. He testified that "[o]ther than the comment of are you about to reach a decision ... no other discussion that I recall took place concerning the case."

After hearing this testimony the trial court stated:

If I understand Mr. and Mrs. Blackard's statement as to what they heard was said, was that this Mr. Puckett asked if they had reached a decision and some comment was made they had all decided but one woman. I feel that statement in itself is not prejudicial, not harmful and Mr. Puckett says they didn't discuss anything further. Mr. and Mrs. Blackard seem to suspect that maybe something else was said but they don't know what was said. So, based upon that, I see no harm or prejudice in the statement that was made and I'll overrule the motion.

Two things concern us regarding the trial court's conclusions. Contrary to the trial court's statement, Puckett had not testified at the state post-trial hearing. Secondly, James Blackard's testimony specifically mentioned the offending comment, but the trial court did not address it in its holding.

We obviously do not require state factfinding to address all the minutiae of defendants' claims, but it is not unrealistic to expect more than an ambiguous response to contentions of this consequence. We therefore agree with the district court that "the trial court did not make findings as to the issue of Puckett's comments to the jurors at the Owl Diner. This issue was not specifically addressed when the ruling was made."


Haley is a rule of federal procedure merely, following Remmer I which was the same. We now apply it as a constitutional imperative without regard to United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), which emphasized the higher burden on collateral attack of a criminal judgment. I acknowledge, however, that Smith, 455 U.S. at p. 221, 102 S.Ct. at 948, may be construed as interpreting Remmer I as constitutionally "requiring a post trial hearing on juror bias."

In Tanner v. United States, --- U.S. ----, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), the Court did construe Rule 606(b) as limiting juror testimony to impeach the verdict, but it dealt with self imposed drinking during the trial, a matter it treated as intrinsic bias rather than bias from an extrinsic source, as here.


The hearing before the state trial judge showed that Blackard had been convicted of four felonies. In the intervening four years between then and the hearing in the district court, he had been convicted of an additional five felonies, a total of nine. Yet, we are asked not to follow the state trial judge's assessment of credibility and weight of evidence, although Blackard was not even corroborated by his wife


The majority takes the trial judge to task because the trial judge recited that Puckett had testified at the hearing on the motion, which he had not, rather than Cockram, who had. While I think it is apparent that this substitution of names was nothing more than a slip of the tongue or of a stenographer's pencil, I have not referred to Cockram's testimony in the body of this dissent so as not to detract from the trial judge's finding. If Cockram's testimony were considered, there is even more reason to give weight to the trial court's finding:

Q. This, ah, you may feel that this puts you on the spot a little bit but I have to--sometimes I have to do that, ah, do you recall the events of that Thursday at lunch well enough to disagree with what Mr. and Mrs. Blackard said? Are you saying that that didn't happen, that Mr. Puckett didn't come by and he didn't discuss the case with you or the people sitting at your booth?

A. Other than the comment of are you about to reach a decision, which was sort of a normal question, everybody we met that day asked us, ah, no other discussion that I recall took place concerning the case.

Q. Do you recall whether Mr., ah, or whoever the man was that came over to the table made commentary to you about what ought to be done with the defendant or what he hoped was done with the defendant?

A. Ah, He didn't make any comments to me.

Q. All right. Did you hear him make any comments to others at the table about that?

A. That's really hard for me to say. Like I say, he did not come to talk to me because I don't know the man, so, I don't.

Q. All right. Did you hear him or someone other than him, who came over to the table, make comments to your fellow jurors? Did you hear him say anything like that?

A. Not that I thought had any effect or event pertained really to the case. Ah, It was typical comments. We hope you finish up this afternoon, ah, I don't really remember anything in particular because I think it was a point that most of the jury members, I think, felt the way I did. We wanted a time to get away and think a little bit and I wasn't in the mood for a conversation.


We should also take into consideration that the state hearing was held June 7, 1983, only 68 days after the verdict, while the hearing in the district court was April 20, 1987, with depositions being taken March 17 and 18, 1987, some four years later. Thus, any difference in testimony should be resolved in favor of the fresher recollection available in the state court


41 F.3d 920

Dennis Waldon STOCKTON, Petitioner-Appellant,
Edward MURRAY, Respondent-Appellee.

No. 94-4000.

United States Court of Appeals,
Fourth Circuit.

Argued Sept. 28, 1994.
Decided Dec. 5, 1994.

Before ERVIN, Chief Judge, and WIDENER and WILKINSON, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge ERVIN and WIDENER joined.


WILKINSON, Circuit Judge:

Appellant Dennis Stockton seeks relief from his capital murder conviction, claiming that the prosecution withheld exculpatory and impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and knowingly elicited perjured testimony during his 1983 trial. Because we find that Stockton's claims are procedurally barred, and in any event are meritless, we affirm the district court's dismissal of Stockton's petition.


A full description of the facts underlying Stockton's trial and conviction can be found in Stockton v. Commonwealth of Virginia, 852 F.2d 740 (4th Cir.1988), cert. denied sub nom. Virginia v. Stockton, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989), and in Stockton v. Commonwealth, 227 Va. 124, 314 S.E.2d 371, 376-77, cert. denied sub nom. Stockton v. Virginia, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). We recount here only those facts relevant to the instant appeal.

Briefly, eighteen-year-old Kenneth Arnder was last seen alive on July 20, 1978, in Mount Airy, North Carolina, when appellant Dennis Stockton picked up Arnder to drive him to Patrick County, Virginia. Arnder's body was discovered five days later in a remote area of Surry County, North Carolina. Arnder had been shot in the head and both of his hands had been severed above the wrists.

On June 25, 1982, Stockton was arrested and charged with the murder for hire of Arnder under Va.Code Ann. Sec. 18.2-31(b). Stockton pleaded not guilty and was tried before a jury in the Circuit Court of Patrick County in March 1983. According to the prosecution's theory at trial, Tommy McBride hired Stockton to kill Arnder because Arnder owed McBride a sum of money from a drug transaction.

Only one witness testified at trial about the meeting at which McBride hired Stockton to kill Arnder. That witness, Randy Bowman, was imprisoned in North Carolina at the time of Stockton's trial. When asked at trial whether he had received any promises in return for his testimony, Bowman replied that he had not and insisted that he was testifying because it was "the right thing to do." Bowman did admit, however, that he "hoped" his cooperation would mitigate his sentence in some respect.

Another prosecution witness, Robert Gates, testified that Stockton had killed Ronnie Tate in 1979 because Tate had been "running [his] mouth about Kenny Arnder." The Supreme Court of Virginia upheld admission of Gates' testimony based on its conclusion that "the two offenses were interrelated, and Gates' testimony showed both Stockton's guilty knowledge of Arnder's murder and his desire to conceal his guilt." Stockton v. Commonwealth, 314 S.E.2d at 383.

We likewise determined that admission of the testimony was not unfairly prejudicial, given the apparent link between the Tate and Arnder killings. Stockton v. Commonwealth, 852 F.2d at 748. The prosecution did not elicit testimony at trial about any motive for the Tate killing other than its relation to Kenny Arnder.

After a two-day trial, the jury found Stockton guilty of murder for hire. At the sentencing phase, the same jury recommended that Stockton be sentenced to death. The trial court imposed that sentence on June 7, 1983. The Supreme Court of Virginia affirmed the conviction and sentence. Stockton v. Commonwealth, 314 S.E.2d at 389. The United States Supreme Court denied certiorari. Stockton v. Virginia, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). Thereafter Stockton began a lengthy quest for post-conviction relief.

This quest took the form of four habeas corpus petitions in state court and two such petitions in federal court. In the eleven years since Stockton's conviction, he has presented his claims for post-conviction relief to state and federal courts on numerous occasions. Those courts have provided a thorough and careful review of Stockton's conviction and sentence.

In fact, this court previously affirmed a district court judgment vacating Stockton's death sentence and remanding for resentencing, Stockton v. Commonwealth, 852 F.2d at 741, where a second jury fixed Stockton's penalty at death based on the aggravating factors of vileness and future dangerousness. Stockton v. Commonwealth, 241 Va. 192, 402 S.E.2d 196, 207-09 (discussing aggravating factors), cert. denied, 112 S.Ct. 280 (1991). Stockton's remaining petitions, however, have all been dismissed. The state court's dismissal of his fourth state habeas petition is of particular interest to us in this case.

Stockton's fourth state court petition was premised upon facts revealed by a 1990 letter from the trial prosecutor. In 1982, during the course of preparation for trial, Stockton had filed a pre-trial motion asking the Commonwealth, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for "any and all information exculpatory in nature," and particularly for information regarding "any other person implicated in the crime charged in this case" and copies of statements made by those persons. The Commonwealth denied awareness of any such information. In February 1990, however, Stockton's counsel received a letter from the trial prosecutor that he alleges contained references to potentially exculpatory material.

The letter indicated that the prosecutor told Randy Bowman before Stockton's trial that he would endeavor to help Bowman secure a transfer to another prison.1 A document enclosed with the letter also indicated that Gates had previously suggested an additional motive for Stockton's murder of Ronnie Tate than the one to which he testified at trial.

In a statement given to North Carolina officials in 1980, Gates implied that two possible motives for the Tate murder existed: Tate's "running his mouth" about Arnder and Tate's discussion of alleged homosexual encounters with Stockton. Prior to the 1990 letter, Stockton maintains, he was unaware of this material and hence unaware of the factual bases for the instant claims.

On December 3, 1990, Stockton filed his fourth habeas petition in state court, alleging that he was entitled to a new trial on two grounds: first, that the Commonwealth failed to disclose evidence pursuant to Brady and Dozier v. Commonwealth, 219 Va. 1113, 253 S.E.2d 655 (1979), and second, that the Commonwealth knowingly elicited perjured testimony from an essential prosecution witness, Bowman, during the guilt phase of Stockton's trial.

The Patrick County Circuit Court dismissed this petition pursuant to Virginia's procedural default statute, Va.Code Ann. Sec. 8.01-654(B)(2), which provides that "[n]o writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition." The Virginia Supreme Court affirmed this dismissal in a written order dated June 25, 1992, agreeing with the lower court that Stockton's claims were procedurally barred. The United States Supreme Court denied certiorari. Stockton v. Virginia, --- U.S. ----, 113 S.Ct. 612, 121 L.Ed.2d 546 (1992).

Appellant thereafter filed the instant petition for a writ of habeas corpus in the federal district court, asserting the same claims raised in his fourth state court petition. On May 3, 1993, the Commonwealth filed a motion to dismiss the petition, arguing that the district court was barred from considering Stockton's claims because the state court had found those claims procedurally defaulted under Sec. 8.01-654(B)(2). The district court agreed with the Commonwealth and dismissed the petition on November 29, 1993. Stockton appeals from the district court's order dismissing his petition.


The Supreme Court of Virginia expressly relied on a state procedural default statute, Va.Code Ann. Sec. 8.01-654(B)(2), to find that Stockton had defaulted his present claims in state court. The state court's finding of default bars federal habeas review of those claims, absent a showing of both cause and prejudice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).

We thus turn to the question of whether there was cause to excuse the procedural default. According to McCleskey v. Zant, "[o]bjective factors that constitute cause include ... 'a showing that the factual or legal basis for a claim was not reasonably available to counsel.' " McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)); see also Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir.), cert. denied, 485 U.S. 1000, 108 S.Ct. 1459, 99 L.Ed.2d 690 (1988) ("Cause may be established for a procedural default where an objective impediment made compliance with a procedural rule impossible, as where the factual basis for a claim was not reasonably available to counsel.").

Stockton urges that the Commonwealth's failure to produce the materials provided in the 1990 letter at an earlier date constitutes "cause" for his procedural default. He insists that before he received the February 1990 letter from the trial prosecutor, he was unaware of the information it contained.

We cannot agree. Findings of the state court supporting its decision to apply the procedural bar are given a presumption of correctness in determining whether cause exists to excuse the procedural default. 28 U.S.C. Sec. 2254(d). See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); Clanton, 845 F.2d at 1241; Coleman v. Thompson, 798 F.Supp. 1209, 1218 (W.D.Va.), aff'd, 966 F.2d 1441 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2983, 119 L.Ed.2d 600 (1992).

There is ample support for the state court's conclusion that Stockton knew of, or could reasonably have discovered, the factual bases for his present claims. Stockton has failed to carry the burden assigned to him by Sec. 2254(d) to "establish by convincing evidence that the factual determination by the State court was erroneous." 28 U.S.C. Sec. 2254(d); Sumner, 449 U.S. at 550, 101 S.Ct. at 771.

First, Stockton's present claim that Randy Bowman fabricated testimony overlooks the fact that Bowman's veracity has been at issue from the inception of this case. Claims related to Randy Bowman continue to reemerge in different guises. For instance, Stockton's first state court habeas petition alleged ineffective assistance of counsel on the grounds that, among other things, trial counsel's cross-examination of Bowman failed to raise the inference "that Bowman came forward only after the Commonwealth was looking for witnesses to corroborate Stockton's [incriminating] statements, and that therefore Bowman had fabricated the story in order to give ... the authorities what they were seeking."

In a similar vein, Stockton's second state court habeas petition asserted that "[s]oon after the petitioner's conviction in March of 1983, Randy Bowman admitted to other inmates at the Patrick County jail that he had committed perjury while testifying against the petitioner." Stockton's attempt to dress his old claims in new garb does not establish "cause" as defined by McCleskey.

Even more pointedly, evidence was available to Stockton prior to his fourth state habeas petition that Bowman claimed to have secured a "promise" from the Commonwealth in exchange for his trial testimony. In his second state court habeas petition, Stockton cited a civil action brought by him in support of his contention that Bowman admitted to other inmates that his trial testimony was perjurious.

Frank Burton Cox, an inmate at the Patrick County jail, testified under oath in the proceeding cited by Stockton that "Randy said that Jay Gregory [the state investigator] and them had promised him things, you know." Not only was Stockton present when Cox testified, Stockton in fact examined Cox.

Even if Stockton had not actually raised or known of these claims previously, he still cannot establish cause to excuse his default if he should have known of such claims through the exercise of reasonable diligence. Here, it seems clear that Stockton could have marshalled the facts underlying his present claims regarding Randy Bowman's veracity in the course of investigating the factual bases of his previous claims concerning Bowman and thus could have raised the instant claims in a prior petition. See, e.g., Waye v. Murray, 884 F.2d 765, 766 (4th Cir.), cert. denied, 492 U.S. 936, 110 S.Ct. 29, 106 L.Ed.2d 634 (1989) (a finding of default under Sec. 8.01-654(B)(2) establishes that "all of the facts on which the current petition was based were either known or available to the petitioner years ago"); Coleman, 798 F.Supp. at 1218. Stockton thus cannot demonstrate, as required by McCleskey, that the "factual or legal basis for" his claim regarding Bowman's truthfulness "was not reasonably available" to him.

Similarly, Stockton was aware of the existence of Robert Gates' taped statement regarding Stockton's motives for murdering Ronnie Tate as early as 1983 but chose not to investigate it further. Indeed, investigator Jay Gregory testified in a 1983 post-trial hearing that North Carolina officials had permitted him to listen to a portion of the tape. Again, reasonably diligent inquiry would have revealed the factual basis for Stockton's claim with regard to Gates' statement long before Stockton's fourth state court habeas petition.

Stockton also complains that the Commonwealth withheld potentially exculpatory statements by Donald York, William Roy Adkins, and Linnie Davis implicating other individuals in the Arnder murder. At most, these statements merely relate to arguments that Stockton raised in earlier habeas petitions. Moreover, the evidence Stockton claims was contained in these statements was available through other sources at the time he filed earlier petitions.

The Donald York statement, for instance, relates assertions that Tommy McBride allegedly made to York. Not only did York testify at trial regarding McBride's statements to him, Stockton cannot escape the simple fact that McBride appeared as a witness on behalf of Stockton and presumably stood ready to offer whatever information he possessed upon the asking. In sum, the record amply supports the conclusion that cause did not exist to excuse the procedural default of Stockton's claims.



Given the Virginia Supreme Court's finding of procedural default, we are in no way obliged to consider the merits of Stockton's claims. We do so, however, in the exercise of care and we are satisfied that Stockton's contentions lack merit. First, Stockton alleges that the government failed to correct perjurious testimony by Randy Bowman that the prosecutor had made no promises to Bowman to secure an early release or transfer to another prison. This claim is meritless. At most, the prosecutor told Bowman that he would do what he could to help Bowman secure a prison transfer, but pointed out to Bowman that, as a Virginia prosecutor, he had no authority over matters within the North Carolina penal system. The prosecutor submitted an affidavit to this effect:

I made it clear to Bowman at the time [prior to Stockton's trial] that I could not make him any promises; I told him I would try. I believe that I told him I would forward positive information to the North Carolina officials. As a Virginia prosecutor, I was not in a position of any authority as to matters in the North Carolina system and I so advised Bowman.

Nothing advanced by Stockton discloses the existence of any prosecutorial commitment to change the length or terms of Bowman's confinement. To the contrary, this was the very thing that the prosecution could not, and did not, promise.

We perceive only Bowman's hope that his testimony would lead to a favorable consideration of his circumstances. The sum and substance of this hope was communicated to the jury by the entirety of Bowman's testimony:


COMMONWEALTH: Randy, Have an--Have any promises been made to you in return for your testimony here this morning?

BOWMAN: No, sir.


Q: ... Why are you testifying here today?

A: I must feel it would be the right thing to do.

Q: You feel it would be the right thing to do. Any other reason?

A: Uhmm-I hope it may help.

Q: You hope it may help in what respect?

A: Well, get out sooner or something, I guess.

Q: So, that's one--another one of rhe [sic] reasons why you're testifying here today, is that correct?

A: Yea.

Q: And, also, because you feel it would be the right thing to do.

A: Yea. I don't ...

Q: All right.

A: I don't really have much time left, so, it can't help me much.



Q: And I believe that, ah, you told Mr. Giorno that no promises were made to you about your testimony here.

A: That's right.

Q: But one promise was made to you wasn't it. That they would do all they could to see that you got consideration for this testimony.

A: Well they--I was hoping to get some consideration out of it, yea.

Q: And they promised you that they'd do all they could to see that you got what consideration you could get.

A: Naw, they didn't make any promises.

Q: Well, they didn't promise you that the Judge would do this or the Judge would do that but they gave you their word that they would help you in any way they could to see that you got what consideration you could for your testimony, isn't that a fact?

A: They told me that they couldn't make any promises. Said they didn't know if they could help me or not.

Q: You were told you would get your consideration on pending charges and you thought you would get consideration on pending charges, isn't that a fact?

A: I was hoping to, yea.

Bowman's testimony was not perjurious. He responded to questioning with an accurate description of his understanding with the prosecution: while no commitments were made to him, he still hoped that his cooperation would help reduce the length or alter the terms of his incarceration. The jury was apprised that Bowman "was hoping to get some consideration out of" his testimony, but that there was no guarantee that he would. In short, Bowman's testimony did not deprive Stockton of his right to a fair trial.

For similar reasons, Stockton's claim that he is entitled to relief under Brady based on the prosecution's failure to turn over Bowman's 1983 letter to the trial prosecutor must also fail. Stockton claims that the letter suggests that Bowman conditioned his testimony on elimination of the remainder of his sentence and that the Commonwealth in fact offered Bowman a "deal" in return for his testimony. To the contrary, the plaintive tone of Bowman's letter indicates that no promise had been made to reduce Bowman's sentence.2

Moreover, Stockton has pointed to no evidence in the record that the prosecution acceded at any point to Bowman's demands for a reduction in his sentence. Bowman's letter thus does not fall within the contours of Brady. Failure to turn the letter over to the defense before trial cannot provide grounds for the relief Stockton seeks.


Stockton's second Brady claim concerns the Commonwealth's failure to disclose the Robert Gates statement. Stockton contends that Gates' 1980 statement, by revealing dual motives for Stockton's murder of Tate, conflicted with Gates' testimony at trial and should have been turned over under Brady. This claim fails for three reasons.

First, Brady does not compel the disclosure of evidence available to the defendant from other sources, including diligent investigation by the defense. United States v. Wilson, 901 F.2d 378, 380 (4th Cir.1990). As we have previously discussed, Stockton was aware of the Gates tape as early as 1983, when investigator Gregory testified in a post-trial hearing that he had listened to "[a] very short segment" of the taped statement.

Stockton chose not to pursue Gates' statement any further, and cannot now seek relief from his conviction under Brady because the statement did not fall into his lap before the prosecution's 1990 letter. If we were to hold that Stockton's claim amounts to a violation of Brady, we would create the risk that Brady could dull the adversarial process and render the prosecution the gatherer of all evidence necessary to preparation of a defendant's case.

Aware of the existence of potentially exculpatory information, a defendant cannot sit idly by in the hopes that the prosecution will discover and disclose that information and, when the prosecution does not do so, seize upon the prosecution's conduct as grounds for habeas relief. See, e.g., Lugo v. Munoz, 682 F.2d 7, 9-10 (1st Cir.1982).

Second, the Gates statement is not clearly exculpatory. Gates' taped statement mentions both Tate's comments about Arnder and Stockton's alleged homosexual activities with Tate as motives for the Tate murder. The existence of one motive does not foreclose the other. Were Stockton to have argued the contents of Gates' statement in its entirety to the jury, the jury nonetheless could have concluded that Stockton killed Tate at least in part to silence him about the murder of Kenny Arnder. When considered in its entirety, it is clear that the Gates statement in fact confirms a link between the Tate and Arnder murders.

Finally, investigator Gregory claims in an affidavit that he relayed the substance of Gates' statement to Stockton's counsel before trial. Stockton does not directly dispute the affidavit, but contends generally that he was unaware of the entirety of Gates' statement until the prosecutor's 1990 letter. Whether or not Stockton possessed the information, it is difficult to envision how Gates' full statement would have assisted Stockton's case.

Stockton's alleged homosexual activities with Tate had the potential to seriously prejudice the jury. Had the Commonwealth in fact introduced evidence of this additional motive for the Tate murder, Stockton likely would have moved for a mistrial. See, e.g., United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993) ("[I]mplications of ... homosexuality ... unfairly prejudice a defendant.") (footnote omitted); United States v. Gillespie, 852 F.2d 475, 479 (9th Cir.1988) ("Evidence of homosexuality is extremely prejudicial."). For all the reasons discussed above, Stockton's Brady claim with respect to Robert Gates' statement lacks merit.


In conclusion, we are persuaded that Stockton's trial and resentencing were fair, and we see no reason to doubt the soundness of the jury's verdict. The post-conviction process in this case has been lengthy, and Stockton has had multiple opportunities to present his claims for habeas relief to state and federal courts. The district court's dismissal of his petition is hereby




We set out here relevant excerpts from the 1990 letter:

In keeping with my previously filed response to [Stockton's] motion, I am not aware of any exculpatory evidence in this matter. In an abundance of caution, however, I am writing to disclose information which may arguably be viewed by you as mitigation evidence....


Randy Bowman sent a letter to Jay Gregory dated March 2, 1983, in which he wrote that he would not come to court unless he could get the remaining six or seven months of his sentence curtailed. As you can see from the enclosed copy, Bowman did not write that he had been promised the sentence reduction. Actually, he closes the letter by writing that if Gregory will call Raleigh he is sure Gregory can work something out.

I am not aware of any promises made to Bowman other than that I told him that I would endeavor to see that he would be transferred. Jay Gregory told him only that he would try to help him. Of course, Bowman testified at trial that he hoped to benefit from his testimony.


Bowman's letter reads as follows:

Hi Mr. Gregory.

I'm writing you to let you know that I'm not going to court unless you can get this 6 or 7 months I've got leaf [sic] cutoff [sic] where I don't have to come back to prison. I've got a bunch of problems but I can't tell you about them now. I don't have to tell you how searious [sic] this is. I'll probley [sic] get killed over this anyway and I think I deserve to get out of prison before I do. Mr. Gregory if you'll call Raleigh and explain to them how searious [sic] this thing is I'm sure you can work out something.


70 F.3d 12

Dennis Waldon STOCKTON, Petitioner-Appellee,
Ronald J. ANGELONE, Director, Virginia Department of
Corrections, Respondent-Appellant.

No. 95-4011.

United States Court of Appeals,
Fourth Circuit.

Submitted Sept. 26, 1995.
Decided Sept. 26, 1995.

Before ERVIN, Chief Judge, and WIDENER and WILKINSON, Circuit Judges.



The Commonwealth of Virginia seeks to vacate a stay of execution granted by the district court in petitioner's case. Such stay was granted by the district court for the purpose of holding a future evidentiary hearing on petitioner's claim of actual innocence in the capital murder of one Kenneth Arnder. For the reasons set forth herein, we vacate the stay of execution and direct that our mandate issue forthwith.

This petition comes to us very late in the day. It has now been twelve years since Stockton was convicted by a jury of the capital murder of eighteen-year-old Kenneth Arnder. In the ensuing dozen years, Stockton's case has made its way through numerous reviewing courts. His direct appeals aside, Stockton has filed no fewer than six state habeas petitions and three federal habeas petitions.

The claims he raises are procedurally defaulted, and they also represent an abuse of the writ. This court has not hesitated to vacate last minute stays of executions granted by district courts ruling on procedurally defaulted claims in successive petitions. Peterson v. Murray, 949 F.2d 704 (4th Cir. 1991); Evans v. Muncy, 916 F.2d 163 (4th Cir. 1990), cert. denied, 498 U.S. 927, 111 S.Ct. 309, 112 L.Ed.2d 295 (1990); Clanton v. Bair, 826 F.2d 1354 (4th Cir. 1987), cert. denied, 485 U.S. 1000, 108 S.Ct. 1459, 99 L.Ed.2d 690 (1988).

The Supreme Court has made clear that a petitioner raising an eleventh-hour actual innocence defense faces a significant burden. Here, as in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), we face a freestanding claim of innocence which is unconnected to any other cognizable constitutional violation. This court has been cautioned that it is "particularly egregious" to enter a stay on second or subsequent habeas petitions unless "there are substantial grounds upon which relief can be granted." Delo v. Blair, --- U.S. ----, 113 S.Ct. 2922, 125 L.Ed.2d 751 (1993).

We have been further directed to respect the finality that inheres in state court judgments of conviction, and to understand that the capacity of federal courts to improve upon state trials in evidentiary hearings held years afterwards is limited. Herrera, 506 U.S. at 397-406, 113 S.Ct. at 859-63. Last minute stays on the part of federal courts represent an interference with the orderly processes of justice which should be avoided in all but the most extraordinary circumstances.

Petitioner's claim fails to meet these standards. It reflects a formula for eleventh-hour relief that is increasingly common in capital cases. Petitioner has advanced affidavits which claim that the actual perpetrator of the murder has confessed to the respective affiants.

For many reasons, Herrera requires that we regard these affidavits with considered skepticism. The credibility of the affiants has never been observed; the contentions of the affiants have never been tested by cross-examination. Moreover, the affidavits do not represent eyewitness accounts of the offense, and they are produced a dozen years after the trial in a context that is suggestive of an intent to delay.

Thus, affidavits like this should "be treated with a fair degree of skepticism." Id. at 423, 113 S.Ct. at 871 (O'Connor, J., concurring). That is especially so here, however. The affidavits contend that Randy Bowman is the real killer of Kenneth Arnder. However, Arnder was murdered between July 20, 1978 (when he was last seen) and July 25, 1978 (when his body was found).

The Sheriff of Surry County, North Carolina, has also submitted an affidavit indicating that Mr. Bowman, the alleged actual killer, was in jail during that entire period. The affidavit of Sheriff Watson declares that Bowman was in continuous custody in the Surry County jail from July 3, 1978 until August 16, 1978. Those dates more than encompass the conceivable dates of the Arnder murder. Petitioner's contention that Bowman was recommended for work release on July 13 fails to contradict the statement in the affidavit that Bowman was actually released on $500 bond on August 16.

In any event, this last minute attempt to replicate a state trial setting through affidavits and federal evidentiary hearings twelve years after the fact of conviction bears little relationship to the orderly and deliberate manner in which justice should proceed. In view of the foregoing, we reverse the judgment of the district court, reinstate the execution date set by the state, and direct that our mandate issue forthwith.

It is so ORDERED.



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