Robert Wayne Williams, Petitioner-appellant, v. Ross Maggio, Jr., Warden and the Attorney General of Thestate of Louisiana, Respondents-appellees, 679 F.2d 381 (5th Cir. 1982)

We begin our consideration of this case by tracing the steps that led petitioner to this Court. Petitioner Robert Wayne Williams was tried by a jury in East Baton Rouge Parish, Louisiana, and convicted of the crime of first degree murder on April 19, 1979. The following day, the jury sentenced Williams to death. On direct appeal, petitioner's conviction and sentence were affirmed by the Louisiana Supreme Court, State v. Williams, 383 So. 2d 369 (La.1980), and certiorari was denied by the United States Supreme Court. Williams v. Louisiana, 449 U.S. 1103, 101 S. Ct. 899, 66 L. Ed. 2d 828 (1981). This failure to obtain relief on direct appeal led petitioner to apply for a writ of habeas corpus from the Louisiana state court. After this avenue proved equally unsuccessful, petitioner filed an application for a writ of habeas corpus in the United States District Court for the Middle District of Louisiana. That court ruled adversely to petitioner, and so he appealed to this Court. A panel of this Court upheld the lower court decision, Williams v. Blackburn, 649 F.2d 1019 (5th Cir. 1981), but petitioner successfully petitioned for rehearing en banc. Today, for reasons expressed herein, we uphold the original panel decision and find that the death penalty was properly imposed in this case.

Before proceeding to a discussion of the specific errors complained of by petitioner, we briefly describe the sequence of events that culminated in the senseless murder of which petitioner was convicted. On January 5, 1979, Ralph Holmes and Robert Wayne Williams approached a Baton Rouge A & P Supermarket which they intended to rob. Prior to entering, they pulled ski masks over their faces to protect their identities from recognition, and Williams prepared his 12-gauge sawed-off shotgun for use. When they walked inside the store, they spotted the security guard, Willie Kelly, age 67, bagging groceries instead of performing his customary duties. The two men approached Kelly and Holmes attempted to remove the guard's pistol from its holster. He had some difficulty doing this, so Kelly made a move toward the pistol in an effort to free it and thereby aid Holmes. Williams responded to Kelly's move by firing the shotgun in the guard's face at point blank range. The resulting blast severed much of Kelly's head from his body. Police detectives on the scene observed bone fragments, blood, hair, and pieces of skin spread throughout the front of the store. After killing the guard, the two men proceeded to complete the robbery. Before fleeing the scene, however, Holmes pistol-whipped one customer, and Williams accidentally shot two more in the feet.

Six issues are raised by petitioner on rehearing en banc. He contends that: (1) his right to an impartial jury under the Sixth and Fourteenth Amendments was violated by the dismissal for cause of three jurors who never stated their irrevocable opposition to capital punishment; (2) his death sentence violates the due process clause of the Fourteenth Amendment because there was insufficient evidence to support two of the three aggravating circumstances found by the jury, namely, (a) that the petitioner knowingly created a risk of death or great bodily harm to more than one person and (b) that the offense was committed in an especially heinous, atrocious, or cruel manner; (3) the Supreme Court of Louisiana violated his rights under the Eighth and Fourteenth Amendments by reviewing the evidentiary sufficiency of only one of the three aggravating circumstances found by the sentencing jury; (4) the district court erred in denying petitioner an evidentiary hearing on the allegation that he was deprived of the effective assistance of counsel at the guilt and sentencing phases of his capital trial; (5) the district court failed to specifically scrutinize each federal constitutional claim made in the habeas petition; and (6) the comparative review of first degree murder convictions on a judicial district, rather than statewide basis, violates the Eighth Amendment and Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), because of its failure to ensure the fair and evenhanded administration of Louisiana's capital punishment statute.

* The first point of appeal raised by Williams concerns the exclusion for cause of jurors who, in petitioner's estimation, never demonstrated their irrevocable opposition to capital punishment. He argues that his Sixth and Fourteenth Amendment right to an impartial jury was violated by these dismissals.

The seminal case in this area, Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), recognized the unconstitutionality of a death sentence imposed by a jury from which veniremen had been excused for cause simply because they expressed general objections to the death penalty or had conscientious or religious scruples against its infliction. The Court held that "(w)hatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution." Id. at 523, 88 S. Ct. at 1777. The requirements set out in Witherspoon have been echoed by a plethora of subsequent Supreme Court and Fifth Circuit cases. Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); Davis v. Georgia, 429 U.S. 122, 97 S. Ct. 399, 50 L. Ed. 2d 339 (1976); Maxwell v. Bishop, 398 U.S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433 (1969); Alderman v. Austin, 663 F.2d 558 (5th Cir. 1981); Granviel v. Estelle, 655 F.2d 673 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S. Ct. 1636, 71 L. Ed. 2d 870, --- U.S. ----, 102 S. Ct. 1644, 71 L. Ed. 2d 875 (1982); Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979). Both Courts accept the state's power to exclude veniremen from a jury on the ground

(1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.

Witherspoon, supra, at 522-23, 88 S. Ct. at 1777 (emphasis in original). At the same time, however, they also recognize that improper exclusion of even one juror on Witherspoon grounds removes from the state the power to impose a sentence of death.

Petitioner asserts that three jurors were incorrectly excluded on the basis of their opposition to the death penalty.¹  Close scrutiny of the voir dire examination of each juror is necessary for the resolution of this issue. Two of the jurors in question, Ms. Gooden and Mr. Martin, were interviewed together. The following excerpt of the district attorney's preliminary remarks and the jurors' responses to his inquiries about capital punishment clearly demonstrates the automatic opposition to the death penalty which justifies exclusion on Witherspoon grounds.

The State is entitled to a juror that can state that if the case is proven and the statutory requirements involving the aggravating circumstances are shown, and you don't feel that the mitigating circumstances outweigh it, that you be able to return a verdict that would carry the mandatory death penalty. Death in Louisiana is still by electrocution. You may have read that some States have passed lethal injection and this type of thing, but that hasn't been passed in Louisiana. Death is still by electrocution. So I guess my next question is, hearing this explanation and knowing that the State will request the death sentence, if you were satisfied that the State had proved its case, could you return a verdict that would require this defendant to be put to death? ...

Q: Could you Mrs. Gooden?

A: (Ms. Gooden) I don't think I could.

Q: Even if I proved the case, you wouldn't want to return a verdict that would require the defendant to be put to death?

A: (Ms. Gooden) No, sir.

Q: Mr. Martin, could you return the verdict?

A: (Mr. Martin) Sir, with the degree that I hold by being an officer of the church and I'm representing God, I wouldn't want to do it.

Q: It's my understanding, of course, that all citizens would hesitate. I'm sure you would want to look at the case closely before you return a verdict that would require the defendant to be electrocuted, but it's my understanding that you Mr. Green, Mrs. Gooden and Mr. Martin, could not return a verdict that would require this defendant to be put to death....

A: (Ms. Gooden) No.

A: (Mr. Martin) No.

Trial Transcript, vol. 1, at 83-84.

Both Martin and Gooden unequivocally stated their inability to consider the death penalty in this case and thereby disqualified themselves from jury service. Coexisting with the petitioner's right to an impartial jury, after all, is the State's right to have a jury that is willing to consider all penalties prescribed by law. A refusal to strike said jurors clearly would have infringed this right.

Next, we turn to the voir dire examination of the third juror, Ms. Brou. After the district attorney presented a similar introduction about the death penalty and the State's right to select jurors who are willing to consider all penalties, he engaged in the following colloquy with Ms. Brou:

Q: Assuming that I prove the defendant committed first degree murder and is convicted, assume I prove the statutory requirements of aggravating circumstances, which under Louisiana law make the case appropriate for the death penalty, can you return a verdict that mandates that the defendant be put to death by electrocution?

A: (Ms. Brou) I don't think I could do that.

Q: Okay. I appreciate your being honest with me. And let me ask you this. When you say I don't think I can, what you are telling me, you can't tell me positively that you can; is that correct?

A: (Ms. Brou) I know there is certain cases where you read about them and they are so hideous that you just think, oh, the death penalty would be the only good outcome, but this particular case, I don't know.

Q: As the Judge told you, this is the killing of a-Well, I don't know if the Judge said all that, but I think it is before the jury. This is the A & P robbery, murder that occurred on January the 5th of this year. And it is my understanding that you feel that you could not return the death penalty.

A: (Ms. Brou) Oh, let's see. I'm afraid I couldn't. I would just be thinking in terms of why can't a person like that be rehabilitated rather than exterminated.

Q: So you feel that you could not return the death penalty?

A: (Ms. Brou) No.

Q: Are there any circumstances which you could return a verdict that would require a defendant to be electrocuted?

A: (Ms. Brou) This particular one or just in general?

Q: This particular one.

A: Any circumstances where I could do that?

Q: Yes.

A: (Ms. Brou) Well, of course, I don't know that much about the case. I always think in terms of how hideous the crime is because I don't know that much about it. I don't know. I don't think I can do it.

Trial Transcript, vol. 1, at 185-86 (emphasis added).

The prosecuting attorney immediately moved to strike Ms. Brou for cause and no objection was interposed by defense counsel. We will not speculate about trial counsel's reasons for not objecting. Perhaps he did not want Ms. Brou on the jury for other reasons. But even if he had objected, his objection would not have been well-taken.

Petitioner charges that Ms. Brou's responses fall far short of demonstrating automatic opposition to the death penalty. He attributes the absence of Witherspoon talismanic responses on the record to the State's failure to propound hard questions about opposition to the death penalty. We disagree. If one examines the underscored portion of her statement, one clearly finds that she did state that she could not return a death sentence. When the prosecutor inquired again to assure that she could not consider this penalty, Ms. Brou responded that she did not think she could do it. When this response is viewed in conjunction with her previous statement of clear opposition to the death penalty, the record of automatic opposition to the death penalty is established.

Witherspoon and its progeny do not mandate that a prospective juror aver that she would refuse to consider the death penalty in every case that could possible arise. If she knows enough about the case to know that she could not consider imposition of the death penalty regardless of what evidence might be presented, she must be excused. Ms. Brou's responses demonstrate that she would be unwilling to consider the death penalty where the crime charged was murder committed during a robbery. She does leave open the possibility that she would consider this penalty in a more "hideous" case. Her unwillingness to do so here, however, is firm.

By means of this appeal, petitioner asks this Court to narrow further the stiff requirements of Witherspoon and its progeny and, in this Court's opinion, thereby infringes the State's right to an impartial jury that is willing to consider all penalties provided by law.²  According to petitioner's analysis, exclusion of a venireman is impermissible unless he states in response to all questions that he absolutely refuses to consider the death penalty. An equivalent response framed in any other reasonable manner is judged to demonstrate that the individual's position is not firm. We reject such a rigid, unthinking interpretation of Witherspoon. Form will not be placed over substance.

II

Petitioner next urges this Court to find his death sentence violative of the Fourteenth Amendment due process clause because of the insufficiency of evidence to support two of the three aggravating circumstances found by the jury. The jury imposed the death penalty after finding the presence of three aggravating circumstances, any one of which justified the punishment petitioner received. These three aggravating circumstances were: (1) the offender was engaged in the perpetration of armed robbery; (2) the offender knowingly created a risk of death or great bodily harm to more than one person; and (3) the offense was committed in an especially heinous, atrocious, or cruel manner.³ 

Before embarking on a discussion of the substantive law in this section of the appeal, we examine the evolution that has produced the current Louisiana death penalty statute. Prior to the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), Louisiana statute permitted the jury to return any one of the following verdicts in a murder case: guilty, guilty without capital punishment, guilty of manslaughter, or not guilty.⁴  In 1973, apparently in response to the Furman decision, the legislature altered the capital punishment statute from discretionary to mandatory. The amended statute required that the penalty of death be imposed whenever an offender was found guilty of the newly defined crime of first degree murder.⁵  The Supreme Court declared this statute unconstitutional in Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976), holding that "(t)he Louisiana procedure neither provides standards to channel jury judgments nor permits review to check the arbitrary exercise of the capital jury's de facto sentencing discretion." Id. at 335, 96 S. Ct. at 3007.

The direction provided by the Supreme Court in Roberts led Louisiana to once again change its capital punishment scheme to ensure that a jury has the opportunity to consider all mitigating factors proffered as a basis for a sentence less than death. The statute also requires the jury to find at least one of a list of aggravating circumstances in order to impose a death sentence.⁶  When sitting in review of capital cases, the state Supreme Court must find the presence of at least one aggravating circumstance beyond a reasonable doubt. In addition, the court must examine all possible mitigating circumstances and compare the case with all other murder cases from the affected judicial district in order to ensure that the sentence is not disproportionate. This procedure was strictly followed in the instant case. Petitioner charges that this is not sufficient.

Petitioner contends that in light of the care of the Supreme Court to adopt narrowing constructions of aggravating circumstances, Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), two of the three aggravating circumstances found by the jury cannot stand. Consequently, his argument continues, the sentence of death must fall as well. Petitioner finds support for this conclusion in Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), cert. granted, --- U.S. ----, 102 S. Ct. 90, 70 L. Ed. 2d 82 (1981), a case currently pending before the Supreme Court.

In Stephens, a panel of this Court vacated a death sentence because one aggravating circumstance found by the jury, a substantial history of serious assaultive criminal convictions, was later held unconstitutional. This action was taken despite the presence of two other valid aggravating circumstances. The Court based its decision on Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931), where the Supreme Court held:

The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury was instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause.... It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.

Id. at 368, 51 S. Ct. at 535.

The two challenged aggravating circumstances in this case do not suffer constitutional defects. In Gregg v. Georgia, supra, the Supreme Court held that a similar aggravating circumstance in the Georgia statute was not unconstitutional on its face.⁷  The Court noted that this aggravating circumstance must simply be properly limited by an appellate court, where it serves as the basis for the death sentence. In the instant case, this aggravating circumstance, although found by the jury, was not the basis for appellate approval of the sentence. Since Louisiana law requires that only one aggravating circumstance be found in order to justify imposition of the death penalty, only one circumstance was reviewed.⁸  This aggravating circumstance has not been attacked to date in petitioner's series of challenges to his conviction and sentence.

The crucial inquiry in this and every case in which capital punishment has been ordered is whether the jury's sentencing discretion was properly channeled. E.g., Roberts v. Louisiana, supra. By statute, the jury's discretion is limited to the extent that only a few types of killings permit consideration of the death penalty. When one or more of the statutory aggravating circumstances is found, the jury must balance this against the mitigating circumstances offered by defendant. Stephens v. Zant can be distinguished on the grounds that the unconstitutionally vague aggravating circumstances which the Stephens jury found to be present was one that required the jury to understand how to determine the meaning of facts and circumstances not before them as a part of the proof of that crime. This required that the jury be properly guided as to how Georgia classified the aggravating circumstance before they could consider evidence of the other criminal convictions and the impact of this proof on the assessment of the death penalty. The vague words of the Georgia statute failed to guide or channel their discretion.

The instant case is not similarly flawed. The jury was only permitted to weigh the specific facts of the crime in arriving at their decision. The aggravating circumstance of armed robbery-murder was present and unanimously found by the jury. Under Louisiana law this means that the two questioned aggravating circumstances are not necessary to entitle the jury to consider imposition of the death penalty. The extra findings went to the gravity of his crime, not the jury's power to impose the death penalty.

Since the requisite one aggravating circumstance of murder in the course of an armed robbery is clearly present and was unanimously found by the jury, the other two circumstances are only material to deciding whether the aggravating and mitigating circumstances weighed together indicate the death penalty should be imposed. Here, the thing of significance is how the jurors perceived the weight of these actions by petitioner. The weight they assigned in determining whether the petitioner's acts were or were not outweighed by mitigating circumstances was necessarily to be tested by how they viewed the facts they properly knew. The jury necessarily focused on what Williams had done, not on how Louisiana classified his actions, since they were not instructed on the legal meaning of the terms involved. Louisiana's classifications did not change the weights the jury assigned in any material degree. The lack of precise legal definitions, therefore, affected none of petitioner's substantial rights.

It might have been better if the trial judge had permitted the jury to consider only the aggravating circumstances that legally could be present, and if the judge had defined those circumstances for the jury in such a way that their finding that the circumstances were proven had been fully informed, perhaps it could be said that a more fully instructed jury would not have found the aggravating circumstances of heinousness and risk to more than one person to be present. This speculation is beside the mark, however, because the meaningful portions of this verdict, (1) that at least one aggravating circumstance was present and (2) that under the totality of aggravating and mitigating circumstances the death penalty should be imposed, were the product of channeled discretion and are rationally reviewable.

This Court's opinion in Stephens v. Zant, relied on so heavily by petitioner, is simply inapposite. We do not confront a facially unconstitutional aggravating circumstance and, therefore, we need not vacate the sentence given. The aggravating circumstances which were not considered and limited by the appellate court do not serve as the basis for the death sentence. We base the sentence on the one circumstance considered by the Louisiana Supreme Court. In so acting, we follow the procedure implicitly utilized in several Supreme Court cases. See, e.g. Eddings v. Oklahoma, --- U.S. ----, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); Gregg v. Georgia, supra.

In Gregg, the first Supreme Court case to consider the constitutionality of an aggravating circumstance very similar to one challenged here, the Court pointed out that it need not discuss two cases where this aggravating circumstance had been found because "(i)n both cases a separate statutory circumstance was also found, and the Supreme Court of Georgia did not explicitly rely on the finding of the seventh circumstance (outrageous or wantonly vile, horrible or inhuman murder) when it upheld the death sentence." 428 U.S. at 201 n.53, 96 S. Ct. at 2938, n.53, 49 L. Ed. 2d at 890 n.53. The Supreme Court again implied approval of the reasoning employed herein in Godfrey v. Georgia, supra, where at the same time the Court vacated a death sentence it noted, "(t)he sentences of death in this case rested exclusively on § (b) (7). Accordingly, we intimate no view as to whether or not the petitioner might constitutionally have received the same sentences on some other basis. Georgia does not, as do some states, make multiple murders an aggravating circumstance." 446 U.S. at 432 n.15, 100 S. Ct. at 1767 n.15, 64 L. Ed. 2d at 409 n.15. Irregardless of the number of aggravating circumstances returned by the jury, the implication is clear that, in the absence of facial unconstitutionality, one may properly serve as the basis for appellate affirmation of the death sentence. The most recent Supreme Court comment on this issue is found in Eddings v. Oklahoma, supra, where after expressing "doubt that the trial judge's understanding and application of this aggravating circumstance (heinous, atrocious, or cruel murder) conformed to that degree of certainty required by our decision in Godfrey v. Georgia ...," --- U.S. at ----, n.3, 102 S. Ct. at 873 n.3, the Court did not find this a basis for reversal of the death sentence but instead went further to find the judge's failure to consider all possible mitigating factors as the reversible error.

The Louisiana Supreme Court's review of only one aggravating circumstance was entirely proper. We find no violation of either the Eighth or Fourteenth Amendment.

III

Petitioner contends that the court below erred in denying him an evidentiary hearing on allegations of ineffective assistance of counsel at both the guilt and sentencing phases of his trial.

First, we examine the claim of ineffective assistance of counsel at the guilt phase of the trial. Petitioner alleges that his attorneys failed to seek suppression of certain inculpatory statements on a well recognized Fourth Amendment ground. The statements in question, which figured importantly in his conviction, were the fruits of an illegal arrest, according to petitioner; despite the fact that information leading to his arrest was obtained from a confidential informant, the affidavit contains no indication of the reliability of the informant. Petitioner errs in his assessment of the facts. The presentence report contains information from two confidential informants.⁹  The affidavit of the second confidential informant amplifies and corroborates the information received from the first. Information from these two sources provided probable cause for arrest.

Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), established standards for judging the sufficiency of hearsay affidavits to establish probable cause. The Court recognized that an affidavit may be based on hearsay information but specified:

... the magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, ... was "credible" or his information "reliable." Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," ... or, as in this case, by an unidentified informant.

378 U.S. at 114-15, 84 S. Ct. at 1514, 12 L. Ed. 2d at 729. The weakness of the affidavits in the instant case relates to the second prong of the Aguilar test. Nowhere in the affidavits is there any indication of the informants' reliability. Petitioner views this as a fatal flaw. We disagree. This Court, in United States v. Martin, 615 F.2d 318 (5th Cir. 1980), affirmed the validity of similar affidavits. The Court held that, taken together, the corroboration of the two affidavits served to establish their reliability. The Court pointed out that the usual case in which corroborative evidence validates a tip involves independent verification by police investigation. See, e.g., Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971), cert. denied, 404 U.S. 985, 92 S. Ct. 450, 30 L. Ed. 2d 369 (1971). While this Court has held that substantial corroboration of a tip by another confidential informant does provide evidence of reliability, these cases also reported independent governmental verification of the information. See United States v. Farese, 612 F.2d 1376 (5th Cir. 1980); United States v. Barham, 595 F.2d 231 (5th Cir. 1979); United States v. Scott, 555 F.2d 522, 527 (5th Cir.), cert. denied, 434 U.S. 985, 98 S. Ct. 610, 54 L. Ed. 2d 478 (1977). Even in Martin, reliability was not based solely on corroboration by the confidential informant. Some weight was given to the fact that one informant's statement was against his penal interest.

In the instant case, however, corroboration alone serves to satisfy the second prong of Aguilar. The statement of one confidential informant is amplified by the other. We believe that the corroboration of details provides the reliability which the Aguilar test mandates. Therefore, petitioner had no basis for asserting his statements to police were the fruit of an illegal arrest. This claim is without merit.

Ineffective assistance of counsel at the sentencing phase of trial is also charged by petitioner. Specifically, petitioner alleges that his trial attorneys failed to conduct an adequate investigation and to prepare properly for the sentencing hearing, since they neglected to interview readily available witnesses in mitigation of punishment and to familiarize themselves with the pertinent law relating to capital sentencing proceedings in Louisiana. In this Circuit, effective assistance of counsel is determined by the standards set forth in MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), modified, 289 F.2d 928 (5th Cir.), cert. denied, 368 U.S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78 (1961); United States v. Gray, 565 F.2d 881 (5th Cir.), cert. denied, 435 U.S. 955, 98 S. Ct. 1587, 55 L. Ed. 2d 807 (1978); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). Effective counsel does not mean "errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." 280 F.2d at 599.

Petitioner asserts that the failure to call certain character witnesses demonstrates the weakness of his counsel. He attached affidavits of these witnesses to his federal habeas corpus application. The district court made the following finding about this issue: "(A) careful review of these affidavits reveals that these witnesses would not have added any new evidence to that which had already been presented at the sentencing hearing by petitioner's mother. These affidavits contain cumulative testimony which had previously been introduced during the trial and at the sentencing hearing." Williams, supra, at 1025.¹⁰  The trial transcript of this case reveals that three witnesses who knew petitioner were called at the guilt phase of the trial. The individuals had known the petitioner twelve, nine and one year, respectively. They testified about his drug usage because petitioner based his defense on the inability to conform his conduct to the requirements of the law because of intoxication. What petitioner's present counsel is really objecting to is the trial strategy employed by trial counsel. We do not elect to second guess the trial strategy decisions of competent counsel.

Petitioner next argues that trial counsel made a serious error in arguing about the admissibility of photos of the body in front of the jury. He contends that this discussion revealed the gruesome nature of the photos to the jury in graphic terms. This argument is utterly without merit. The "gruesome" facts referred to were the district attorney's remarks that it was heinous to "have your face blown off in front of the people you've worked with and the people that you know and exactly what this man did to the victim in this case." Trial Transcript, vol. 2, at 267. These comments do not introduce to the jury any information not already presented earlier in trial. Furthermore, by presenting this argument in front of the jury, petitioner's counsel had the opportunity to educate the jury about the limited definition of the aggravating circumstance of especially heinous or atrocious crime.¹¹ 

Petitioner's next assignment of error relates to counsel's failure to request limiting instructions on the statutory aggravating circumstances that were considered by the jury. The jury did hear the limited definition of the heinous crime circumstance, however, when counsel argued the admissibility of photos of the body. In addition, counsel presented the jury with a limited definition of both circumstances in his closing argument.¹²  Consequently, counsel's inaction does not rise to the level of ineffective assistance of counsel.

Petitioner's final argument charges counsel with failure to conduct a thorough pre-trial investigation. Counsel would have discovered many good character witnesses if he had undertaken proper pre-trial investigation, he asserts, and then would possibly have decided not to have petitioner's mother testify but would have depended on favorable testimony from members of the community. This challenge to counsel's performance attempts to do precisely that which is barred by this Court; it invites us to question counsel's trial strategy and judge his performance incompetent if it was not errorless. We decline to take this action. There is little doubt that had trial counsel employed the trial strategy proposed by petitioner, this Court would now face an effectiveness of counsel argument based thereon. Trial counsel in this case made the best of a bad case. He certainly provided reasonably effective assistance. Since we find adequate support in the record for our decision, there is no need to return this case to the court below for an evidentiary hearing. No further judicial time need be wasted on such spurious challenges.

IV

Next in this series of challenges, petitioner alleges that the district court failed to specifically scrutinize each federal constitutional claim in his habeas petition. Of his thirteen original grounds for post conviction relief, petitioner asserts that eight have never been addressed.¹³  He is incorrect. Three of these claims, numbers three, nine, and twelve, were specifically rejected by the Louisiana Supreme Court. The district court committed no error by concurring with that court's analysis. Our decision in part II of this opinion disposes of the need to discuss claims four, six, and seven, since these are predicated on the faulty assumption that Stephens v. Zant applies to this case.¹⁴  Claim number ten attacks the failure to adequately instruct the jury about the weight and role of mitigating circumstances. After closely examining the trial court record, we have determined that this claim is spurious. Claim eleven also concerns mitigating circumstances; here petitioner asserts that lack of statutory guidance about mitigating circumstances renders the Louisiana death penalty statute unconstitutional. This claim is likewise without merit.

V

As a final point of appeal, petitioner contends that the comparative review of first degree murder convictions on a judicial district, rather than statewide, basis violates the Eighth Amendment and Furman v. Georgia, supra, because of its failure to ensure the fair and evenhanded administration of Louisiana's capital punishment statute.¹⁵ 

In reviewing the sentence in this case, the Louisiana Supreme Court made the following comparison of this case with other murder cases in the district:

The sentence review memoranda shows that there have been 28 murder prosecutions in East Baton Rouge Parish with eleven resulting in first degree murder convictions. Of these eleven, only three of the defendants were sentenced to death. These three cases are strikingly similar in that all three defendants were the actual killers and the crimes all arose during the perpetration of armed robberies. See State v. Williams, 383 So. 2d 369 (La.1980) (No. 65,563); State v. Clark, No. 66,573, appeal pending.

Thus, a review of the sentences imposed in the same parish shows that in the cases most similar to the defendant's, the death penalty was imposed. Our review also shows a dissimilarity between the defendant's case and the other first degree murder convictions in that arguably, there are no aggravating circumstances or there were present mitigating circumstances which justified the jury's recommendation of life imprisonment.

In light of the above considerations, we are unable to conclude that the sentence imposed here is disproportionate to that imposed in similar cases.

383 So. 2d at 375 (citations omitted).

Although the Supreme Court has referred to statewide reviews as commendable in the effort to ensure against an arbitrary imposition of the death penalty, it has never implied that such review is a constitutional requirement. Gregg v. Georgia, supra; Proffitt v. Florida, supra; Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). The review quoted above provides adequate safeguards against freakish imposition of capital punishment. Just as a venire chosen from a cross section of the community in which the crime is committed is an adequate constitutional safeguard against arbitrary imposition of verdicts and sentences, so a review of the murder convictions imposed within that venire community is sufficient to ensure against arbitrary imposition of the death penalty. We concur with the statement in the panel decision of this case that "we have heard nothing which would even hint at unconstitutionality, and wholly reject the argument." 649 F.2d at 1021.

VI

After carefully scrutinizing petitioner's many points of appeal, we conclude that each lacks merit. Certainly, we do not take lightly such a judgment where, as here, a human life hangs in the balance. Although we comply with our duty to carefully consider petitioner's claims, we refuse to step further and assist in counsel's efforts to ban the death penalty. Therefore, we decline petitioner's invitation to enter the jury room and speculate on what happened therein. Louisiana has properly narrowed juries' sentencing discretion in capital cases. The Louisiana Supreme Court conducts thorough and proper review of all cases.¹⁶  Chief Justice Burger, in his dissent in Eddings v. Oklahoma, supra, expressed a thought most relevant here: "It can never be less than our most painful of duties to pass on capital cases ... However, there comes a time in every case when a court must 'bite the bullet.' " Id. --- U.S. at ----, 102 S. Ct. at 883. That time has arrived.

AFFIRMED.

RANDALL, Circuit Judge, with whom RUBIN, POLITZ and JERRE S. WILLIAMS, Circuit Judges, join, concurring in part and dissenting in part:

Because I think that the jury that convicted the defendant was fatally tainted by the improper exclusion of a juror for cause, I respectfully disagree with the majority and I would, on that ground alone, reverse the judgment of the district court denying the writ as to the sentencing phase and remand for a new sentencing hearing. That disposition would render it unnecessary to consider the remaining asserted constitutional errors in the sentencing phase. Since the majority is required to address those errors by virtue of its conclusion (and based on the premise) that the juror was properly excluded, I shall address the majority's conclusions as to those errors. With respect to the asserted errors stemming from the lack of sufficient evidence to support two of the three aggravating circumstances found by the jury, I believe that this court is required by the Supreme Court's decision in Zant v. Stephens, --- U.S. ----, 102 S. Ct. 1856, 72 L. Ed. 2d ---- (1982), to certify to the Supreme Court of Louisiana the same question that the Supreme Court in Zant certified to the Supreme Court of Georgia. I respectfully disagree with the majority that the two cases can be distinguished on a principled basis, and I dissent from the implicit decision of the majority not to certify that question to the Supreme Court of Louisiana. I concur in the balance of the judgment rendered in Parts III and IV of the majority opinion although in one instance for a different reason than that set forth in the majority opinion.

Veniremen with reservations about capital punishment may be excluded from jury service only if they make unmistakably clear that:

"(1) they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt."

Witherspoon v. Illinois, 391 U.S. 510, 522-23 n.21, 88 S. Ct. 1770, 1777 n.21, 20 L. Ed. 2d 776 (1968) (emphasis in original).

There was nothing in the State-Brou colloquy to indicate that Ms. Brou's attitude toward the death penalty would prevent her from making an impartial decision as to Williams' guilt, and the State does not rely on that ground for her exclusion. The majority finds, however, that Ms. Brou voiced automatic opposition to imposition of capital punishment without regard to any evidence that might be developed at trial.¹ 

The majority opinion sets forth a portion of the colloquy with Ms. Brou, underscoring one question and one response. Then, in three sentences, the majority construes that testimony to establish a "record of automatic opposition to the death penalty:"

If one examines the underscored portion of her statement, one clearly finds that she did state that she could not return a death sentence. When the prosecutor inquired again to assure that she could not consider this penalty, Ms. Brou responded that she did not think she could do it. When this response is viewed in conjunction with her previous statement of clear opposition to the death penalty, the record of automatic opposition to the death penalty is established.

Thus, the majority transforms Ms. Brou's serious reservations about assessment of the death penalty in some circumstances, perhaps in the circumstances of this case, into automatic opposition to the death penalty regardless of any evidence developed at trial. This method of analysis is flawed; the conclusion, incorrect. Moreover, the majority's focus on one sentence, rather than the whole colloquy, does violence to the mandate of Witherspoon and its inherently cautious approach to exclusion of jurors. The proper method of analysis, it seems to me, is to examine her responses as a whole, mindful of the analysis set forth in Witherspoon.

The essence of that analysis is, in the words of Witherspoon itself, that veniremen "cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment;" that a "prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him;" and that a venireman may be asked "that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." Witherspoon v. Illinois, 391 U.S. at 522 n. 21, 88 S. Ct. 1770, 1777 n. 21, 20 L. Ed. 2d 776 (emphasis added).

The colloquy demonstrates that Ms. Brou thought that there were some cases where the death penalty should be returned and some where it should be refused. ("I know there is certain cases where you read about them and they are so hideous that you just think, oh, the death penalty would be the only good outcome....") Thus, Ms. Brou, it seems to me, is the very embodiment of the venireman referred to in Witherspoon who cannot be excluded because she distinguishes between the types of cases in which she could recommend the death penalty from those in which she could not.²  A juror must be permitted to say, "I am willing to consider all the facts and circumstances of this case; but if all that emerges here is a murder committed during the course of a robbery, I do not think I could recommend the death penalty." Ms. Brou said no more.

Furthermore, questions by the State to Ms. Brou, in contravention of the Supreme Court's instruction in Witherspoon that a prospective juror cannot be expected to say in advance of trial whether he or she would, in fact, vote for the extreme penalty in the particular case, were improper; the majority's reliance on her responses to support its finding of automatic opposition is equally so. ("Her unwillingness to do so here, however, is firm.") No juror can be expected to decide, before trial, whether this is the type of case in which the death penalty can be assessed. To require such a commitment flies in the face of the teachings of Witherspoon.

Even were the questions proper, her responses were not, as the majority states, "firm." They were vacillating. ("Well, of course, I don't know that much about the case. I always think in terms of how hideous the crime is because I don't know that much about it. I don't know. I don't think I can do it.") At most, Ms. Brou's statements about the Williams case reflected uncertainty as to her decision because she had not been specifically apprised of the facts.³  This circuit's precedent precludes her exclusion. Granviel v. Estelle, 655 F.2d 673, 678-80 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S. Ct. 1644, 71 L. Ed. 2d 875 (1982); Burns v. Estelle, 626 F.2d 396, 397-98 (5th Cir. 1980) (en banc).

In summary, the majority's conclusion that the exclusion of Ms. Brou was proper cannot be justified under Witherspoon.

Williams asserts several errors relating to two of the three aggravating circumstances found by the jury and the method by which his sentence was reviewed by the Supreme Court of Louisiana. The two challenged aggravating circumstances were: (1) the offender knowingly created a risk of death or great bodily harm to more than one person; and (2) the offense was committed in an especially heinous, atrocious, or cruel manner.⁴ A. What Has the Majority Opinion Held?

Part II of the majority opinion begins by setting forth Williams' claim that his death sentence is violative of the due process clause of the fourteenth amendment because of the insufficiency of the evidence to support two of the three aggravating circumstances found by the jury. The opinion then focuses on whether the two challenged aggravating circumstances suffer constitutional defects under Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), and Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980). It holds that, because the Louisiana Supreme Court did not review the two challenged circumstances, it cannot be said to have adopted an unconstitutionally broad construction of them in violation of Gregg and Godfrey. This facile distinction between what might be called an act of commission (Godfrey) and an act of omission (Williams) misses the point of Gregg and Godfrey. The issue which Gregg and Godfrey present for Williams is whether appellate affirmance of a death penalty based in part on jury findings of two aggravating circumstances that are the product of unchanneled and open-ended constructions of those circumstances can constitutionally be sustained.

The majority turns to the issue whether the jury's sentencing discretion was properly channeled.⁵  The majority begins by distinguishing Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), cert. granted sub nom. Zant v. Stephens, --- U.S. ----, 102 S. Ct. 90, 70 L. Ed. 2d 82 (1981), certifying a question of state law to the Supreme Court of Georgia, sub nom. Zant v. Stevens, ---, U.S. ----, 102 S. Ct. 1856, 72 L. Ed. 2d ---- (May 4, 1982), on the ground that in Stephens the unconstitutionally vague aggravating circumstance found by the jury was one that required the jury to assess the import of facts and circumstances not before the jury as a part of the proof of the crime, whereas in this case, the jury had only to weigh the facts of the crime itself in arriving at its decision. The former requires proper jury guidance per Stephens. The majority states that the latter does not, citing no authority. The presence of a properly found aggravating circumstance cannot be used to distinguish the two cases because such a circumstance existed in each of them. The majority then goes on to assess the impact of the two potentially flawed aggravating circumstances found by the jury. Those circumstances are described as going to the gravity of Williams' crime and as material to deciding whether the aggravating and mitigating circumstances weighed together indicate that the death penalty should be imposed. I agree. Why, then, since the jury may have assigned a degree of gravity or weight to Williams' crime that was erroneous under Louisiana law, are we not compelled to vacate his sentence? Because, according to the majority opinion, the jury assigned that weight simply by "review(ing) the facts they properly knew. The jury necessarily focused on what Williams had done, not on how Louisiana classified his actions, since they were not instructed on the legal meaning of the terms involved." The majority tells us that the very absence of adequate, narrowing instructions on the two challenged aggravating circumstances means that the jury did not in fact classify Williams' actions in the manner contemplated by Louisiana law. They couldn't have done so, because they weren't told how to do it. This analysis of what the jury did cannot be squared with the facts. The only hard evidence we have of what the jury did is the Jury Recommendation, signed by the foreman and delivered to the court, all as required by Louisiana law.⁶  It is set forth in full below:

JURY RECOMMENDATION

Filed April 19, 1979

Article 905.7 Form of recommendations

Having found the below listed statutory aggravating circumstance or circumstances and, after consideration of the mitigating circumstances offered, the jury recommends that the defendant be sentenced to death.

Aggravating circumstance or circumstances found:

Article 905.4

The offender was engaged in the prepetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, or armed robbery.

The offender knowingly created a risk of death or great bodily harm to more than one person.

The offense was committed in an especially heinous, atrocious or cruel manner.

s/ Claude H. Sims, Jr.

s/ Foreman

April 19, 1979

or

The jury unanimously recommends that the defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence.

s/ WWW

s/ Foreman

The portion of the Recommendation beginning with "Article 905.4 ..." through the signature of the foreman is written in the handwriting of the foreman. The jury clearly thought they were finding the existence of three aggravating circumstances set forth in Article 905.4, as they were instructed to do. Though they were not required to do so, they carefully gave the court a statutory reference for good measure. The jury did focus on how Louisiana classified Williams' actions, albeit wrongly in the case of two of the aggravating circumstances.⁷  As we shall see below, there is simply no way to tell whether the jury's mistaken classification of Williams' actions changed the weights the jury assigned in its balancing of aggravating and mitigating circumstances. The majority, however, focuses on what it declares to be "the meaningful portions of this verdict, (1) that at least one aggravating circumstance was present and (2) that under the totality of aggravating and mitigating circumstances the death penalty should be imposed." But why are judges qualified to say what were the meaningful portions of the Recommendation insofar as the members of the jury were concerned? Furthermore, as will also be developed below, the notion that once having found one valid aggravating circumstance, the jury should be and is permitted to evaluate the circumstances of the offense free of guided or channeled discretion ignores the requirements of capital sentencing law as it has developed during the last ten years.

The majority then moves on to announce a new principle of habeas review. The majority states: "The aggravating circumstances which were not considered and limited by the appellate court do not serve as the basis for the death sentence." Although it is somewhat unclear, what the majority appears to be saying is that, under Louisiana law (no citations provided), the aggravating circumstances not reviewed by the Louisiana Supreme Court "do not serve as the basis for the death sentence." The majority then goes on to say "(w)e base the sentence" on the one circumstance which that court did review. Since we are not assessing the sentence, what the majority must be saying is that this court, in reviewing the constitutionality of the petitioner's sentence under 28 U.S.C. § 2254, will review only the aggravating circumstance reviewed by the Louisiana Supreme Court. The majority cites as support for this method of habeas review three Supreme Court cases in each of which certiorari was granted to review the decision of the supreme court of a state affirming a conviction and sentence on direct appeal-Gregg v. Georgia, supra, Godfrey v. Georgia, supra, and Eddings v. Oklahoma, --- U.S. ----, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). The cases cited by the majority do not support the majority's rule of habeas review, nor do they support a similar rule of appellate review. The text accompanying note 53 to the Supreme Court's opinion in Gregg v. Georgia, 428 U.S. at 200, 96 S. Ct. at 2938, is addressed simply to the construction placed by the Supreme Court of Georgia on the (b) (7) aggravating circumstance-that the offense was "outrageously or wantonly vile, horrible and inhuman." The Supreme Court addressed in the text the one reported case in which the Supreme Court of Georgia had affirmed a death sentence based solely on a (b) (7) finding and noted that it was a horrifying torture-murder. Note 53 to the opinion canvasses the only two other reported cases of sentences based in whole or in part on (b) (7) and notes that the Supreme Court of Georgia did not contribute to the gloss on (b) (7) in those cases because it did not rely on (b) (7) when it upheld the death sentences. There is no discussion or analysis in note 53 of the propriety of this method of appellate review; that was not the focus of the note.

In Godfrey v. Georgia, supra, the Supreme Court vacated a death sentence based solely on (b) (7). It had no occasion in Godfrey itself to consider the method of appellate review of a sentence based on multiple aggravating circumstances.

In Eddings v. Oklahoma, supra, the Supreme Court vacated a death sentence because it found that the Oklahoma trial court and Court of Criminal Appeals placed limitations on the mitigating evidence they would consider in violation of Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). Having done so, it had no occasion to consider the method of appellate review of a sentence based on multiple aggravating circumstances. To the extent that any conclusion can be drawn from notes 3 and 4 (Eddings v. Oklahoma, --- U.S. at ---- nn. 3 & 4, 102 S. Ct. at 873 nn. 3 & 4) to the Supreme Court's opinion in Eddings about the Court's position on appellate review, it seems to me that the Court is suggesting that the trial court on resentencing should reconsider its "heinous, atrocious or cruel" finding; it is noteworthy that reconsideration is suggested in a case in which there were two other aggravating circumstances found by the sentencing judge.

B. What is the Import of Zant v. Stephens?

The majority does not address or even advert to the Supreme Court's opinion in Zant v. Stephens, --- U.S. ----, 102 S. Ct. 1856, 72 L. Ed. 2d ---- (1982). It is clear from the manner in which the Court defined the question posed to it in Zant that Williams cannot be distinguished on the basis that the Zant jury had to assess the import of facts and circumstances not before the jury as part of the proof of the crime, whereas in Williams, the jury had to weigh only the facts of the crime itself.⁸  The question was defined in Zant as: "whether a reviewing court constitutionally may sustain a death sentence as long as at least one of a plurality of statutory aggravating circumstances found by the jury is valid and supported by the evidence." Id. --- U.S. at ----, 102 S. Ct. at 1858 (emphasis added). The Georgia Supreme Court had consistently stated that it could constitutionally sustain a death sentence in those circumstances. Gates v. State, 244 Ga. 587, 261 S.E.2d 349, 358 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980). The Court stated that the Georgia Supreme Court had never articulated the state law premise for that conclusion. Zant v. Stephens, --- U.S. at ----, 102 S. Ct. at 1858. Such articulation, according to the Court, would be relevant to its analysis of the case. Id. --- U.S. at ----, 102 S. Ct. at 1859.

The Court then suggested several possible bases for the Georgia rule.⁹ 

It may be that implicit in the rule is a determination that multiple findings of statutory aggravating circumstances are superfluous, or a determination that the reviewing court may assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions. In this Court, the Georgia Attorney General offered as his understanding the following construction of state law: The jury must first find whether one or more statutory aggravating circumstances have been established beyond a reasonable doubt. The existence of one or more aggravating circumstances is a threshold finding that authorizes the jury to consider imposing the death penalty; it serves as a bridge that takes the jury from the general class of all murders to the narrower class of offenses the state legislature has determined warrant the death penalty. After making the finding that the death penalty is a possible punishment, the jury then makes a separate finding whether the death penalty should be imposed. It bases this finding "not upon the statutory aggravating circumstances but upon all the evidence before the jury in aggravation and mitigation of punishment which ha(s) been introduced at both phases of the trial."

Zant v. Stephens, --- U.S. at ----, 102 S. Ct. at 1858.

The Court concluded:

In view of the foregoing uncertainty, it would be premature to decide whether such determinations, or any of the others we might conceive as a basis for the Georgia Supreme Court's position, might undermine the confidence we expressed in Gregg v. Georgia, supra, that the Georgia capital-sentencing system, as we understood it then, would avoid the arbitrary and capricious imposition of the death penalty and would otherwise pass constitutional muster.

Id. --- U.S. at ----, 102 S. Ct. at 1859.

The Court then certified the following question to the Supreme Court of Georgia.

What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury.

Id. --- U.S. at ----, 102 S. Ct. at 1859.

In view of the importance of the state-law premises for the Georgia Supreme Court's rule to the constitutional issue in Zant and the resulting decision of the Supreme Court to certify to the Georgia Supreme Court an inquiry into those premises, we must in Williams consider what the Louisiana rule is and what the state-law premises for that rule are.

The Louisiana Supreme Court has apparently borrowed the Georgia Supreme Court's rule on aggravating circumstances.

At the present we know of no constitutional requirement that a death sentence be vacated whenever the jury errs in its finding of a statutory aggravating circumstance. We note that the Georgia legislature has directed the Georgia Supreme Court to determine whether "the evidence supports the jury's or judge's finding of a statutory aggravating circumstance ...," Ga.Code Ann. § 27-2537(e) (emphasis added), and that this provision was quoted with approval in Gregg v. Georgia, supra. As stated by the Georgia Supreme Court in Gates v. State, 244 Ga. 587, 599, 261 S.E.2d 349, 358 (1979):

"Where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon. Gregg v. State, 233 Ga. 117, 127-128, 210 S.E.2d 659 (1974); Gregg v. Georgia, supra, 428 U.S. (153) at 161, 162 (96 S. Ct. 2909 at 2919-2920, 49 L. Ed. 2d 859) ... The erroneous application of the statutory aggravating circumstance of 'depravity of mind to the victim' ... does not invalidate the valid parts of the verdict of the jury."

State v. Monroe, 397 So. 2d 1258, 1276 (La.1981). The Louisiana court has restated this rule in the context of review of death sentences.

(I)f the jury finds more than one statutory aggravating circumstance and one is clearly supported by the record, it is unnecessary to overturn the sentence because one (or more) of the additional statutory aggravating circumstances are not supported. State v. Monroe, 397 So. 2d 1258 (La.1981); State v. Williams, 383 So. 2d 369 (La.1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 899 (66 L. Ed. 2d 828); State v. Martin, 376 So. 2d 300 (La.1979), cert. denied, 449 U.S. 998, 101 S. Ct. 540 (66 L. Ed. 2d 297).

The jury properly found that at least one statutory aggravating circumstance existed, that is, defendant was engaged in the perpetration of armed robbery when the victim was murdered; therefore, we consider it unnecessary to inquire whether the jury correctly found that the other aggravating circumstances existed.

State v. Mattheson, 407 So. 2d 1150 at 1166 (La.1981) (emphasis added).

The citation in Monroe to the Georgia rule as construed in Gates and the Louisiana Supreme Court's own restatement of that rule in Mattheson demonstrate that Louisiana has adopted the Georgia rule. This is not surprising considering that Louisiana had previously adopted, in large part, the Georgia capital sentencing procedure. "The Georgia sentencing scheme ... serves as a model for our sentencing procedure (C.Cr.P. 905-905.9)." State v. Culberth, 390 So. 2d 847, 849 (La.1980). Compare La.Code Crim.Proc.Ann. art. §§ 905.4, 905.5 (West 1976) and Rule 28, La. Supreme Court Rules, with Ga.Code Ann. § 27-2534.1 (Supp.1975).

But while the Louisiana Supreme Court has adopted the same rule as the Georgia Supreme Court, it has provided us with no more guidance as to the state law premises for that rule than the Georgia Supreme Court has provided. The majority has itself supplied a number of what must be classified as state-law premises for the Louisiana rule, without benefit of a single citation to Louisiana law. We have no warrant to do for Louisiana what the Supreme Court has refused to do for Georgia. If the majority has correctly disposed of the Witherspoon issue (which I doubt, see Part I, supra), then we are compelled by Zant to certify to the Louisiana Supreme Court¹⁰  the same question as the United States Supreme Court certified to the Georgia Supreme Court. I dissent from the implicit decision of the majority not to do that.

C. What Are the Implications of Zant for Our Habeas Review?

Zant involves more than a procedural detour to permit the state court to fill in the rationale for its action. Instead, the reason for the certification appears to be the Court's concern both with the way in which under Georgia law the jury arrives at a decision to assess the death penalty and with the function of the Georgia Supreme Court in reviewing the sentence.¹¹  Williams relies on both as grounds for habeas relief. The dual prongs of the Supreme Court's inquiry stem, at least in part, from the jury-appellate review process contemplated by Gregg v. Georgia, supra. In Gregg, the opinion of Justices Stewart, Powell and Stevens asserts that the death penalty "could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner." 428 U.S. at 188, 96 S. Ct. at 2932. That opinion goes on to say:

Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

Id. at 189, 96 S. Ct. at 2932. The opinion declares that a carefully drafted statute pointing to the main circumstances of aggravation and mitigation that should be weighed and weighed against each other provides guidance to the sentencing authority and reduces the likelihood that the sentencing authority will impose a sentence that is capricious or arbitrary. The opinion of Justice White in Gregg, concurred in by The Chief Justice and Justice Rehnquist, also placed strong emphasis on the role of statutory aggravating circumstances in limiting jury discretion. Gregg v. Georgia, 428 U.S. at 222, 96 S. Ct. at 2947. A majority of the Court, therefore, emphasizes the critical importance of channeling jury discretion, i.e., of providing the jury with standards to guide its use of the information relevant to the imposition of sentence. Id. at 195, 96 S. Ct. at 2935. Finally, the opinion of Justices Stewart, Powell and Stevens also emphasizes the "further safeguard of meaningful appellate review" of "the factors (the jury) relied upon in reaching its decision" as a further safeguard against the arbitrary or capricious imposition of the death penalty. Id. (emphasis added). In Georgia (as in Louisiana, see note 6, supra), the jury is required by statute to list those factors, thereby facilitating appellate review.¹² 

Within that general framework of guided jury discretion and meaningful appellate review, the opinion of Justices Stewart, Powell and Stevens in Gregg then addresses specifically the claim that the aggravating circumstance there involved (the offense was "outrageously or wantonly vile, horrible and inhuman") was so broad and vague as to leave juries free to act as arbitrarily and capriciously as they wish in deciding whether to impose the death penalty. The opinion agrees that it is arguable that this circumstance could be found in any murder, but concludes that there is no reason to assume that the Supreme Court of Georgia would adopt such an open-ended construction. By looking to the Supreme Court of Georgia to weed out those cases in which an overly broad construction of the aggravating circumstance is applied by the jury, the opinion again made "meaningful appellate review" an integral part of the constitutionality of the death penalty provided for in the Georgia sentencing scheme. This critical function of appellate review may help to explain why it is that the Court has thus far declined to adopt Justice Marshall's position, as expressed in his concurring opinion in Godfrey v. Georgia, 446 U.S. at 436-37, 100 S. Ct. at 1769, that the jury instructions must themselves include the narrowing construction of potentially overbroad aggravating circumstances. It seems to me, therefore, that a habeas court assessing the constitutionality of a death sentence imposed under a statutory scheme such as either of the Georgia-Louisiana twins must review both the degree to which the jury's discretion was suitably channeled and the meaningfulness of the appellate review of that sentence.

D. Was the Jury's Discretion Channeled?

The Louisiana legislature paid careful heed to Gregg and its companion cases. The statutory scheme lists nine aggravating circumstances directed to the circumstances of the offense and the character and propensities of the offender. The jury is permitted to consider only the nine aggravating circumstances listed. As noted above, the jury is required to make its recommendation on a statutorily prescribed form which calls for the jury to list the aggravating circumstances which it finds, thereby facilitating review by the Supreme Court of Louisiana, which is mandated to review every sentence of death to determine if it is excessive.

Insofar as channeled jury discretion is concerned, the majority opinion holds that in Louisiana the jury had only to find the existence of one valid statutory aggravating circumstance, under properly channeled discretion, to impose the death penalty. Having done so, the jury is thereafter free to consider the circumstances of the crime (but not facts not before the jury as a part of the proof of the crime) free of any "standards to guide its use of that information." Gregg v. Georgia, 428 U.S. at 195, 96 S. Ct. at 2935. Let us consider what that means in this case. The jury found the existence in this case of two aggravating circumstances-the offender knowingly created a risk of death or great bodily harm to more than one person, and the offense was committed in an especially heinous, atrocious, or cruel manner-that would not qualify as statutory aggravating circumstances as the Louisiana Supreme Court has construed them. What that means is that the list of the aggravating circumstances which the jury was permitted to consider was increased in this case to eleven, having been augmented by two circumstances that would not qualify as statutory aggravating circumstances. This flies in the teeth of the Louisiana statute which limits the jury to consideration of the nine aggravating circumstances listed in the statute. Conspicuously missing from Article 905.4, which lists the statutory aggravating circumstances, is the language found in Article 905.5(h)-"Any other relevant mitigating circumstance"-which is commonly viewed as giving the jury broad discretion to consider mitigating circumstances that might not qualify under the balance of 905.5. Lockett v. Ohio, 436 U.S. at 605, 98 S. Ct. at 2965. The majority's interpretation also means that the same behavior that would not support a finding of a statutory aggravating circumstance (and therefore the death penalty) if it were the only potential aggravating circumstance in the case will support a finding of a nonstatutory aggravating circumstance (and therefore contribute to the death penalty) if there is another validly found statutory aggravating circumstance in the case. None of this finds any support in Louisiana law, and if it accurately describes the process by which Williams' sentence was assessed, that fact alone may constitute a denial of due process. In any event, this process lacks the specific guidance of jury discretion in evaluating the circumstances of the crime mandated by Gregg.

E. Is Louisiana Appellate Review "Meaningful?"

As noted above, key to analysis of the constitutionality of Williams' sentence is the question whether that sentence received meaningful appellate review. The Louisiana Supreme Court considered only whether the first aggravating circumstance was properly found and refused to review the other two under the court's rule that, even if the other two were unsupported by the evidence, the sentence would be affirmed. This procedure must be premised on the proposition that as a matter of law the jury's finding of the other two aggravating circumstances did not affect the jury's decision to recommend the death penalty. On this point, the reasoning of our decision in Stephens, as derived from Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 2d 1117 (1931), is helpful to a determination of the adequacy of appellate review. Stephens v. Zant, 631 F.2d at 406. How can a reviewing appellate court know the degree to which improper aggravating circumstances interacted with the proper aggravating circumstance and affected the jury decision to impose death? Id. As Justice Dennis of the Louisiana Supreme Court stated in reviewing a case similar to the one before us:

On this record, if the jury believed the state's evidence, defendant's death sentence could constitutionally have rested on a finding that he was engaged in aggravated burglary, or that he knowingly created a risk of death or great bodily harm to more than one person. Since the finding of an aggravating circumstance is a necessary ground for, but does not require, the death penalty, however, it is impossible to say whether these grounds alone were the basis for the verdict. On the contrary, so far as we can tell, it is equally likely that the jury would have recommended life imprisonment if it had not thought that the defendant was guilty of killing in an especially heinous, atrocious or cruel manner.

Several United States Supreme Court decisions have clear and forceful application here. In Bachellar v. Maryland, 397 U.S. 564, 90 S. Ct. 1312, 25 L. Ed. 2d 570 (1970); Street v. New York, 394 U.S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969); Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957); Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931), the high court held that a criminal conviction must be reversed if the jury could have based the verdict on an unconstitutional statutory ground, even though there were other valid statutory grounds which the jury in fact may have employed. In those cases, since the defendants' convictions "may have rested on an unconstitutional ground," (emphasis added) Bachellar v. Maryland, supra, 397 U.S. at 571, 90 S. Ct. at 1316, they were set aside.

....

A verdict based upon evidence insufficient for a finding beyond a reasonable doubt is just as unconstitutional as one based on a facially unconstitutional statute. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

State v. Monroe, 397 So. 2d at 1281 (La.1981) (Dennis, J., dissenting).

In the case before us, it was impossible for the Louisiana Supreme Court, just as it is impossible for this court, to determine satisfactorily that the verdict was not affected by the jury's mistaken impression that this crime qualified under Article 905.4 (which the jury cited as authority for its Recommendation) as especially heinous, atrocious or cruel and that Williams' actions had presented the threat of death or great bodily harm to more than one person.

The majority seems to believe that, because "(t)he extra findings went to the gravity of his crime, not to the jury's power to impose the death penalty," the invalid aggravating circumstances had no impermissible effect on the jury's decision to recommend the death penalty. I submit that it is precisely the evaluation of the gravity of a crime which is the Supreme Court-mandated basis for any jury's decision to assess the death penalty. If the jury holds an erroneous impression of the gravity of the crime, its discretion may not be effectively channeled as commanded by Gregg and its progeny, nor can a reviewing court know how that misconception affected its decision.

As Justice Dennis so succinctly reasoned in State v. Monroe, supra :

Moreover, I do not see how it rationally may be contended that a jury which erroneously believes it has legally found three aggravating circumstances to exist will not be more apt to recommend that the defendant be sentenced to death than a jury which correctly believes that the defendant is guilty of a crime involving two aggravating circumstances. To think otherwise is to ignore the realities of a capital sentencing hearing.... (I)t is highly unrealistic and purely artificial to think that a jury which believes three aggravating circumstances exist will not be more likely to impose a death penalty than a jury which finds only (one). Ordinary citizen jurors are likely to be led to the common sense conclusion that, if a defendant can be put to death for a murder involving just one aggravating circumstance found to exist the more likely it is that any mitigating circumstances are outweighed and that the death penalty is appropriate.

Id. at 1281-82 (Dennis, J., dissenting). Furthermore, Justice Stewart has echoed Justice Dennis' dissent in his dissent to the denial of certiorari in Martin v. Louisiana :

The Louisiana jury that imposed the death penalty upon the petitioner found two aggravating circumstances: (1) the petitioner had knowingly created a risk of death or great bodily harm to more than one person; and (2) he had committed the offense in an especially heinous, atrocious, or cruel manner. 376 So. 2d 300, 311-312. In affirming the death sentence, the Louisiana Supreme Court held that the jury had properly found the first aggravating circumstance. Id., at 312. It then reasoned that since the jury had the power to sentence the petitioner to death on the basis of a single aggravating circumstance, there was no need for it to review the correctness of the jury's finding of the second aggravating circumstance. Ibid.

Under the state death penalty statute, however, while the jury was permitted to impose capital punishment where it found only a single aggravating circumstance, it was not required to do so. La.Code Crim.Proc.Ann., Art. 905.3 (West Supp. 1980). The Louisiana court's reasoning, therefore, ignores the possibility that some of the jurors may have voted for the death sentence because of the existence of the second aggravating circumstance alone, or that others may have voted for the death penalty only because of the existence of the two aggravating circumstances.

The jury's verdict thus makes it impossible to determine whether some or all of the jurors may have relied on the existence of the second aggravating circumstance in reaching their decision to impose the sentence of death.

Martin v. Louisiana, 449 U.S. 998, 998-99, 101 S. Ct. 540, 541, 66 L. Ed. 2d 297 (1980) (Stewart, J., dissenting from denial of certiorari).

Since the Louisiana Supreme Court could not hold that, as a matter of law, the challenged aggravating circumstances did not affect William's sentence, the failure of the Louisiana court to review those circumstances did not constitute the meaningful appellate review of the sentence that is critical to the constitutionality under the eighth and fourteenth amendments of Williams' sentence. If the majority is free under Zant to pass on the constitutionality of Williams' sentence at this point, which I doubt, then I dissent from the refusal of the majority to hold that sentence unconstitutional.

While I concur with the majority in its holding that Williams did not suffer ineffective assistance of counsel at the guilt or sentencing stage, I am constrained to disagree with one aspect of the majority's reasoning as to the claim of ineffective assistance of counsel at the sentencing phase.

One of Williams' claims of error was that his counsel failed to request limiting instructions on the statutory aggravating circumstances that were considered by the jury. The majority reasons that, because counsel stated the limitations in his argument to the jury, he mitigated any failure of the trial court to give limiting instructions. Suppose the jury instructions had left out an element of the crime, and Williams' lawyer failed to object. Is it now to be the law in this circuit that, if his lawyer told the jury that they needed to find that element in order to convict, he effectively mitigated the failure of the trial court to give the necessary instruction and he was therefore not ineffective?

I would, instead, hold that there was no need for an evidentiary hearing on the question because the apposite United States Supreme Court and Louisiana Supreme Court law did not, in 1976, require the trial court to give any limiting instructions. As recently as three months prior to Williams' trial, the Louisiana Supreme Court, in State v. English, 367 So. 2d 815, 823-24 (La.1979), gave its construction of the limitations on the aggravating circumstances before us (heinous, atrocious and cruel and risk of harm to more than one person). That court, however, did not explicitly find error in the trial court's failure to give limiting instructions nor did it establish the requirement that it do so.

Additionally, as set out in Part II above, the United States Supreme Court has never mandated that limiting instructions be given to the jury, but has implicitly adopted the position that it is in appellate review that limitation of aggravating circumstances is to be accomplished. Thus, under the analysis developed by this court, the failure of the district court to grant Williams an evidentiary hearing was not error. There were no facts which could be developed at such a hearing that would have aided Williams' case.

Finally, the majority gives little attention to Williams' other grounds. One of Williams' main claims throughout his appeal is that no federal court has in this habeas corpus action addressed all his grounds for relief. I believe, in any habeas case, but especially in a capital case, each ground affecting the granting or denial of relief should be addressed. Thus I summarize the claims I have addressed or in which I concur with the majority:

Ground # 1 (Witherspoon) -a basis for reversal

Ground # 2 (ineffective counsel-sentencing phase)-I concur with the majority's conclusion, though in one case for a different reason

Grounds # 3-6 (errors relating to findings of invalid aggravating circumstances)-bases for reversal

Ground # 8 (failure to review on district basis)-I concur

Ground # 13 (ineffective counsel-guilt phase)-I concur

This leaves grounds seven, ten and eleven. While Williams was entitled to a district court determination of these grounds, he has not briefed these issues to this court. Thus, I believe findings as to these grounds are inappropriate.¹³ 

REAVLEY, Circuit Judge, concurring in part:

I concur in Parts I, II B and III of Judge Randall's opinion.