Contents    Prev    Next    Last

            Title Flamer v. Delaware

 

            Date 1995

            By Alito

            Subject Habeas Corpus

                

 Contents

 

 

Page 1

LEXSEE 68 F.3D 736

WILLIAM H. FLAMER v. STATE OF DELAWARE; DARL CHAFFINCH; RAYMOND CALLAWAY; HAROLD K. BRODE; WILLIAM H. PORTER; GARY A. MYERS; LOREN C. MEYERS; DANA REED; JAMES E. LIGUORI; CHARLES M. OBERLY, III; WALTER REDMAN; STANLEY W. TAYLOR, Acting Warden; WARDEN ROBERT SNYDER; William Henry Flamer, Appellant; BILLIE BAILEY, Appellant v. ROBERT SNYDER, Warden, Delaware Correctional Center

No. 93-9000, No. 93-9002

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

68 F.3d 736; 1995 U.S. App. LEXIS 29678

February 16, 1994, Argued (93-9000); April 26, 1994, Argued (93-9002); November 22,

1994, Reargued In Banc

October 19, 1995, Filed

SUBSEQUENT   HISTORY:               **1        As   Corrected

January 4, 1996.

PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. No. 93-9000 (D.C. Civil No. 87-00546), No. 93-9002 (D.C. Civil No. 92-00209).

LexisNexis(R) Headnotes

COUNSEL:

CHARLENE D. DAVIS, ESQ. (Argued), BAYARD, HANDELMAN & MURDOCH, P.A., Wilmington, DE. JOSHUA L. SIMON, ESQ., Law Office of David Staats, Wilmington,  DE,  Counsel  for  Appellant,  Flamer  (93-

9000).

GARY     A.            MYERS,  ESQ.        (Argued),               PAUL      R. WALLACE, ESQ., CARL C. DANBERG, ESQ., Deputy Attorney  General,  Department  of  Justice,  Wilmington, DE, Counsel for Appellees (93-9000).

EDMUND D. LYONS, JR. ESQ. (Argued), DAVID JAY LYONS, ESQ., Wilmington, DE, Counsel for Appellant, Bailey (93-9002).

PAUL R. WALLACE, ESQ. (Argued), Deputy Attorney General,    Department   of   Justice,    Wilmington,    DE, Counsel for Appellee, Snyder (93-9002).

JUDGES:   No.   93-9000   Argued   April   26,                 1994, Before:          BECKER,   HUTCHINSON   *   and   ALITO, Circuit  Judges.  No.  93-9002  Argued  April  26,  1994,

Before:  MANSMANN, COWEN, and LEWIS, Circuit Judges.   No.   93-9000,            No.   93-9002   Reargued   In Banc   November   22,           1994,        Before:    SLOVITER, Chief  Judge,  BECKER,  STAPLETON,  MANSMANN, GREENBERG, HUTCHINSON *, SCIRICA, COWEN, NYGAARD,   ALITO,   ROTH,   LEWIS,   McKEE   & SAROKIN, Circuit Judges.

*  Judge  Hutchinson  participated  in  the  argu- ment and conference of the in banc court in these appeals, but he died before the filing of the opinion.

OPINIONBY: ALITO

OPINION:   *739   OPINION OF THE COURT

ALITO, Circuit Judge:

This opinion of the in banc court concerns two ap- peals from orders of the United States District Court for the District of Delaware that denied habeas corpus peti- tions filed by two state prisoners, William Henry Flamer and Billie Bailey, who were separately tried for unrelated double  homicides  and  sentenced  to  death.  The  appeals were initially heard by two separate panels of this court during  roughly  the  same  period.  Both  prisoners   **2  argued,  among  other  things,  that  their  death  sentences should  be  vacated  pursuant  to  Clemons  v.  Mississippi,

494 U.S. 738, 108 L. Ed. 2d 725, 110 S. Ct. 1441 (1990), because Delaware, in the parlance of the Supreme Court's Eighth Amendment decisions, is a "weighing state" and because the juries in   *740   both cases were instructed at the penalty phase regarding certain statutory aggravating factors that were either impermissibly vague or duplica- tive. Before a panel opinion was filed in either appeal, the

68 F.3d 736, *740; 1995 U.S. App. LEXIS 29678, **2

Page 2

court voted to rehear these cases in banc for the purpose of addressing the prisoners' related arguments.

Agreeing with the two district court judges who de- nied  the  prisoners'  petitions  and  with  the  unanimous Supreme Court of Delaware, we now hold that Delaware is not a "weighing state," that Clemons is therefore inap- plicable, and that the governing Supreme Court precedent is Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103

S. Ct. 2733 (1983). Applying Zant, we hold that the strik- ingly similar jury instructions and interrogatories used in these two cases did not violate the Eighth Amendment. We also find no merit in Bailey's remaining arguments. In this opinion, we do not address Flamer's many other arguments, but in a separate opinion **3   that is being filed simultaneously with this opinion, the panel that orig- inally heard Flamer's appeal rejects all of Flamer's other arguments. Accordingly, the district court orders in both cases will be affirmed.

I.

A. The background of Flamer's appeal is set out in the panel opinion that is being filed together with this opin- ion, and therefore a detailed statement is not needed here. Flamer was arrested in 1979 for murdering his elderly aunt and uncle during a robbery at their home. In early 1980, he was tried and convicted on four charges of first-degree murder: two charges of intentionally causing the death of another person, Del. Code Ann. tit. 11 § 636(a)(1), and two charges of felony murder, Del. Code Ann. tit. 11, §

636(a)(2). He was also found guilty of other non-capital offenses. After the jury returned these verdicts, the state sought the imposition of the death penalty.

At the time of Flamer's trial, n1 Del. Code Ann. tit.

11, § 4209(d)(1) provided in pertinent part as follows:

A sentence of death shall not be imposed unless the jury or judge, where appropriate, finds:

a. Beyond a reasonable doubt at least 1

statutory aggravating circumstance; and

**4

b.             Unanimously         recommends,         after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propen- sities of the offender, that a sentence of death be imposed.

See  Flamer  v.  State,  490  A.2d  104,  146  (Del.  1983). Nineteen statutory aggravating circumstances were listed in Del. Code Ann. tit. 11, § 4209(e)(1). n2 In addition, the statute provided that a statutory aggravating circumstance

*741    would be deemed to have been established if a defendant was convicted under certain subsections of the Delaware first-degree murder statute, Del. Code Ann. tit.

11, § 636(a)(2)-(7). n3 Thus, under these provisions, a Delaware jury at the penalty phase of a capital case was required  to  perform  two  steps.  In  the  first  step,  which we will hereafter call the "eligibility" step, the jury was required to determine whether at least one statutory ag- gravating circumstance had been (or was deemed to have been) proven. In the second step, which we will call the

"selection" step, the jury was required to weigh all of the pertinent evidence in aggravation (not just the statutory aggravating **5   circumstances) and all of the evidence in mitigation.

n1 The language of this provision today is sub- stantially the same:

A sentence of death shall be imposed, after considering the recommendation of the jury, if a jury is impaneled, if the Court finds:

a.  Beyond  a  reasonable  doubt  at least  1  statutory  aggravating  circum- stance; and

b. By a preponderance of the evi- dence, after weighing all relevant ev- idence  in  aggravation  or  mitigation which  bears  upon  the  particular  cir- cumstances or details of the commis- sion of the offense and the character and propensities of the offender,  that the  aggravating  circumstances  found by  the  Court  to  exist  outweigh  the mitigating circumstances found by the Court to exist.

Del. Code Ann. tit. 11, § 4209(d) (Supp. 1994). n2 These were:

a. The murder was committed by a per- son in, or who has escaped from, the custody of a law-enforcement officer or place of confinement.

b. The murder was committed for the purpose of avoiding or preventing an arrest or for the purpose of effecting an escape from custody.

c.             The          murder    was          commit- ted  against  any  lawenforcement  offi- cer, corrections employee or fireman,

68 F.3d 736, *741; 1995 U.S. App. LEXIS 29678, **5

Page 3

while such victim was engaged in the performance of his official duties.

d.   The   murder   was   committed against a judicial officer, a former ju- dicial  officer,  Attorney  General,  for- mer  Attorney  General,  Assistant  or Deputy  Attorney  General  or  former Assistant  or  Deputy  Attorney  gen- eral,  State  Detective  or  former  State Detective, Special Investigator or for- mer Special Investigator, during, or be- cause  of,  the  exercise  of  his  official duty.

e.   The   murder   was   committed against a person who was held or oth- erwise detained as a shield or hostage. f.   The   murder   was   committed against a person who was held or de- tained by the defendant for ransom or

reward.

g.   The   murder   was   committed against  a  person  who  was  a  witness to a crime and who was killed for the purpose of preventing his appearance or testimony in any grand jury, crimi- nal or civil proceeding involving such crime.

h. The defendant paid or was paid by another person or had agreed to pay or  be  paid  by  another  person  or  had conspired to pay or be paid by another person for the killing of the victim.

i.              The          defendant               was          previ- ously convicted of another murder or manslaughter or of a felony involving the use of,  or threat of,  force or vio- lence upon another person.

j.   The   murder   was   committed while the defendant was engaged in the commission of, or attempt to commit, or flight after committing or attempt- ing to commit any degree of rape, ar- son,  kidnapping,  robbery,  sodomy or burglary.

k. The defendant's course of con- duct resulted in the deaths of 2 or more persons where the deaths are a prob- able  consequence  of  the  defendant's conduct.

**6

l.  The  murder  was committed  by means of torture, use of an explosive device or poison, or the defendant used such means on the victim prior to mur- dering him.

m.  The  defendant  caused  or  di- rected  another  to  commit  murder  or committed murder as an agent or em- ployee of another person.

n. The murder was outrageously or wantonly vile, horrible or inhuman.

o. The defendant was under a sen- tence  of  life  imprisonment,  whether for natural life or otherwise, at the time the commission of the murder.

p. The murder was committed for pecuniary gain.

q. The victim was pregnant.

r. The victim was severely handi- capped, severely disabled or elderly.

s. The victim was defenseless.

n3 Del. Code Ann. tit. 11, § 636(a) provided:

(a) A person is guilty of murder in the first degree when:

(1)  He  intentionally  causes  the death of another person;

(2) In the course of and in further- ance of the commission or attempted commission of a felony or immediate flight therefrom, he recklessly causes the death of another person;

(3) He intentionally causes another person to commit suicide by force or duress;

(4) He recklessly causes the death of a law enforcement officer,  correc- tions employee or fireman while such officer is in the lawful performance of his duties;

(5) He causes the death of another person by the use of or detonation of any  bomb  or  similar  destructive  de- vice;

68 F.3d 736, *741; 1995 U.S. App. LEXIS 29678, **6

Page 4

**7

(6) He,  with criminal negligence, causes the death of another person in the course of and in furtherance of the commission or attempted commission of rape, kidnapping, arson in the first degree, robbery in the first degree, or immediate flight therefrom;

(7) He causes the death of another person  in  order  to  avoid  or  prevent the lawful arrest of any person, or in the course of and in furtherance of the commission or attempted commission of escape in the second degree or es- cape after conviction

Thus, if a defendant was convicted of first-degree murder  under  subsection  (1) --  for  "intentionally causing the death of another person" --  no statu- tory aggravating circumstance would automatically be deemed to have been established. However,  if a defendant was convicted under subsections (2)-

(7), a statutory aggravating circumstance would be deemed to have been proven.

n4 Del. Code Ann. tit. 11, § 4209(e)(1)k. n5 Del. Code Ann. tit. 11, § 4209(e)(1)n. n6 Del. Code Ann. tit. 11, § 4209(e)(1)p.

n7 Although the Delaware statute described the jury's decision as a "recommendation," this deci- sion, if supported by the evidence, was "binding on the Court." Del. Code Ann. tit. 11, § 4209(d)(1)b.

Shortly  after  this  verdict  was  returned,  the  United States  Supreme  Court  handed  down  its  decision  in Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 2d 398, 100

S. Ct. 1759 (1980), which concerned the Georgia sentenc- ing scheme, upon which, according to the Supreme Court of Delaware, the Delaware scheme "was obviously fash- ioned." State v. White, 395 A.2d 1082, 1085 (Del. 1978). Under  the  Georgia  scheme,     **9    like  the  Delaware scheme, the jury was first required to determine whether at least one statutory aggravating circumstance had been proven. See Zant v. Stephens, 462 U.S. at 871. If the jury found that such a circumstance had been shown, the jury was then called upon to consider all pertinent aggravating and mitigating evidence in determining whether a death sentence should be imposed.  Id. at 871-72.

In Flamer's case, a statutory aggravating circumstance was deemed to have been established by virtue of his con- victions on two charges of felony murder (Del. Code Ann. tit. 11, § 636(a)(2)). See supra pages 4-5. In addition, the prosecution argued that three other statutory aggravating circumstances had been proven, namely, (1) that Flamer's conduct had "resulted in the deaths of 2 or more persons where the deaths were  a probable consequence of that  conduct," n4 (2) that the murders were "outrageously or wantonly vile, horrible, or inhuman," n5 and (3) that the murders  were  committed  "for  pecuniary  gain."  n6  The prosecution urged the jury to impose the death sentence based on these circumstances and certain non-statutory

*742  aggravating factors, including Flamer's prior crim- inal record, the age of his two victims, the frailty of his aunt,  and  Flamer's  exploitation  of  his  aunt  and  uncle's trust in order to gain entrance to their home. Flamer Joint Appendix ("JA") at 1485-86. The jury was given instruc- tions that are discussed in detail in Part III of this opinion. The jury then returned a verdict recommending n7 that a sentence of death be imposed. On a special interrogatory

**8   form, which is also discussed in detail in Part III, the jury found that all three of the additional statutory ag- gravating circumstances alleged by the prosecution had been  established,  and  the  jury  indicated  that  it  had  re- lied on all of the statutory aggravating circumstances in making its recommendation.

In  Godfrey,  the  defendant  had  killed  his  wife  and mother-in--law "instantly" by shooting them in the head with a shotgun.   446 U.S. at 425. In sentencing the de- fendant to death, the jury found one statutory aggravating factor  to  have  been  proven,  i.e.,  that  the  murders  were

"outrageously or wantonly vile, horrible, or inhuman, in that they  involved torture, depravity of mind, or an ag- gravated battery to the victim." Id. at 426. The jury found that this statutory aggravating factor had been proven even though the prosecution had not claimed that the murders had involved "torture" or an "aggravated battery" (other than the homicides themselves) and even though the jury's answers on a sentencing questionnaire indicated that nei- ther torture nor an aggravated battery **10   (other than the murders) had been found. Id.

The Georgia Supreme Court affirmed the death sen- tence, but the United States Supreme Court reversed. In the plurality opinion that embodied the Court's holding, n8 Justice Stewart observed that a valid capital sentenc- ing scheme "must channel the sentencer's discretion by

'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death.'" Id. at 428

(footnotes omitted). The plurality concluded that the chal- lenged statutory aggravating circumstance, as apparently interpreted by the Georgia Supreme Court in Godfrey, did not fulfill this requirement. The plurality wrote:

68 F.3d 736, *742; 1995 U.S. App. LEXIS 29678, **10

Page 5

In   the   case   before   us,   the   Georgia Supreme  Court  has  affirmed  a  sentence  of death based upon no more than a finding that the  offense  was  "outrageously  or  wantonly vile, horrible and inhuman." There is noth- ing in these few words, standing alone, that implies  any  inherent  restraint  on  the  arbi- trary  and  capricious  infliction  of  the  death sentence.  A  person  of  ordinary  sensibility could fairly characterize almost every mur- der as "outrageously or wantonly vile, horri- ble **11   and inhuman." Such a view may, in fact, have been one to which   *743   the members of the jury in this case subscribed.

Id. at 428-29 (footnote omitted). The plurality opinion subsequently added that there was "no principled way to distinguish this case, in which the death penalty was im- posed, from the many cases in which it was not." Id. at

433.

n8 Justice Stewart's plurality opinion was joined by three other justices. Justice Marshall, joined by Justice Brennan, concurred in the judgment. Justice Marshall "agreed with the plurality that, as applied in this case, the aggravated circumstance at issue was   unconstitutionally  vague,"  426  U.S.  at  435

(Marshall, J., concurring in the judgment), but he also expressed the view that reversal was required on broader grounds. Id. at 433, 435-42.

Following   this   decision,   the   Supreme   Court   of

Delaware,  in  Petition  of  State  for  Writ,  433  A.2d  325

(1981), held that the statutory aggravating circumstance set out in Del. Code Ann. tit. 11, § 4209(e)(1)n **12   -- that "the murder was outrageously or wantonly vile, hor- rible, or inhuman" -- was, like its Georgia counterpart, too vague to channel a sentencer's discretion in a capital case. As previously noted, this circumstance was found by the jury in Flamer's case, but three other statutory aggravating circumstances had also been proven. Thus, in Flamer's di- rect appeal, the Supreme Court of Delaware was required to decide whether the jury's reliance on one vague statu- tory  aggravating  circumstance  necessitated  the  reversal of Flamer's death sentence, even though other statutory aggravating circumstances had also been proven.

While Flamer's direct appeal was pending, the United States Supreme Court addressed a similar question in Zant v. Stephens, supra, which again involved the Georgia cap- ital sentencing scheme. n9 In Zant,  the jury had found that three statutory aggravating circumstances had been proven, and it had imposed a sentence of death. 462 U.S.

at  866-67.  One  of  these  statutory  aggravating  circum- stances was subsequently held by the Georgia Supreme Court to be too vague to satisfy the standard adopted in Godfrey. See id. at 867. Nevertheless, the United States

**13    Supreme  Court  held  that  reversal  of  the  death sentence in Zant was not required. The Court, however, specifically reserved decision as to whether its holding would apply in so-called "weighing states," which have a capital sentencing scheme significantly different from Georgia's.  Id. at 890.

n9 Zant is discussed in greater detail below. See infra pages 20-25.

After carefully analyzing the United States Supreme Court's decision in Zant and related cases, the Supreme Court  of  Delaware  held  that  Flamer's  sentence  should be  upheld.   Flamer  v.  State,  490  A.2d  at  131-36.  The Supreme Court of Delaware held that Delaware is not a

"weighing state" and wrote:

While the jury in Delaware is told to weigh and consider certain circumstances, the fact that  they  are  not  told  how  to  weigh  them and that this "weighing" occurs at the discre- tionary stage, renders defendant's argument meaningless.

Id. at 135-36. The Delaware Supreme Court further found that the instructions had not placed **14   excessive em- phasis on the vague statutory circumstance and that the references  to  that  circumstance  were  harmless.   Id.  at

136.  Responding  to  Flamer's  argument  that  two  of  the statutory  aggravating  factors  --  that  the  murders  were committed during the felony of robbery and that the mur- ders were committed for pecuniary gain -- were duplica- tive, the Delaware Supreme Court likewise observed that

"nowhere did the trial court suggest 'that the presence of more than one aggravating circumstance should be given special weight.'" 490 A.2d at 136 (quoting Zant, 461 U.S. at 891).

In his federal habeas corpus petition, Flamer renewed his argument that the jury's finding of one invalid statu- tory  aggravating  circumstance  required  the  reversal  of his death sentence, but the district court agreed with the analysis of the Supreme Court of Delaware.   Flamer v. Chaffinch, 827 F. Supp. 1079, 1094-97 (D. Del. 1993). This appeal followed.

B. Bailey committed the two murders for which he was sentenced to death while assigned to the Plummer House, a work release facility in Wilmington, Delaware.

68 F.3d 736, *743; 1995 U.S. App. LEXIS 29678, **14

Page 6

Bailey v. Snyder, 855 F. Supp. 1392, 1396-97 (D. Del.

1993). After escaping from the Plummer House,   **15  Bailey appeared at the home of his foster sister, Sue Ann Coker, in Cheswold, Delaware.  Id. at 1397. Bailey told his foster sister that he was upset and was not going back to the Plummer House. Id. A   *744    short time later, Bailey and Charles Coker, his foster sister's husband, left in Coker's truck to run an errand. Id. On the way, Bailey asked Coker to stop at a package store. Id. Bailey then entered  the  store  and  robbed  the  clerk  at  gunpoint.  Id. Emerging from the store with a pistol in one hand and a  bottle  in  the  other,  Bailey  told  Coker  that  the  police would soon be arriving,  and he asked to be dropped at Lambertson's Corner, about one and one-half miles away. Id. Coker complied and then drove back to the scene of the robbery, where he inquired about the clerk and telephoned the Delaware State Police. Id.

In the meantime,  Bailey had entered the farmhouse of  Gilbert  Lambertson,  age  80,  and  his  wife,  Clara Lambertson, age 73. Id. Bailey shot Gilbert Lambertson twice in the chest with a pistol and once in the head with the  Lambertsons'  shotgun.   Id.  at  1392.  He  shot  Clara Lambertson once in the shoulder with the pistol and once in  the  abdomen  and  once   **16    in  the  neck  with  the shotgun. Id. Both Lambertsons died. Id.

Bailey  fled  from  the  scene  but  was  spotted  by  a Delaware  State  Police  helicopter  unit  as  he  ran  across the Lambertsons' field. Id. He attempted to shoot the he- licopter co-pilot with the pistol, but he was apprehended. Id.

Bailey was charged with first-degree murder and other offenses, and he was tried at approximately the same time as  Flamer,  but  before  a  different  judge.  After  the  jury found Bailey guilty,  the state sought the death penalty. Bailey v. State, 490 A.2d 158, 172 (Del. 1983). The state argued that it had established the existence of the follow- ing four statutory aggravating circumstances: (1) that the murders were committed by one who had escaped from a place of confinement, n10 (2) that the murders were com- mitted  while  the  defendant  was  engaged  in  flight  after committing a robbery, n11 (3) that the defendant's course of conduct resulted in the deaths of two people where the deaths were a probable consequence of the defendant's conduct, n12 and (4) that the murders were "outrageously or wantonly vile, horrible, or inhuman." n13 Id. The judge gave the jury instructions that were virtually **17   iden- tical to those given in Flamer's case.  Id. at 173. The jury then returned a verdict recommending the imposition of a death sentence. On an interrogatory form that is also virtually the same as that used in Flamer's case, the jury indicated  that  it  had  found  that  all  four  of  the  alleged statutory factors had been proven. See Bailey v. Snyder,

855 F. Supp. at 1409. The jury further indicated that, in recommending a death sentence, it had relied on two of those circumstances --  that the defendant's conduct had resulted  in  the  deaths  of  two  persons  where  the  deaths were a probable consequence of the defendant's conduct and that the murders were outrageously or wantonly vile, horrible, or inhuman. Id.

n10 Del. Code Ann. tit. 11, § 4209(e)(1)a. n11 Del. Code Ann. tit. 11, § 4209(e)(1)j. n12 Del. Code Ann. tit. 11, § 4209(e)(1)k. n13 Del. Code Ann. tit. 11, § 4209(e)(1)n.

On direct appeal, the Supreme Court of Delaware con- sidered whether Bailey's death sentences had to be vacated

**18   because the jury had found the existence of one invalid statutory aggravating circumstances (i.e., that the murders were "outrageously or wantonly vile,  horrible, or unhuman").  Bailey v. State, 490 A.2d at 172-74. The Delaware Supreme Court handed down its decisions re- garding the death sentences in Flamer's and Bailey's cases on the same day. In Bailey's case, the State Supreme Court relied on its analysis in its Flamer opinion and affirmed Bailey's death sentence. Id. at 173-74.

Bailey subsequently filed the federal habeas petition that  is  now  before  us  and  argued,  among  other  things, that  the  jury's  finding  of  a  single  invalid  statutory  ag- gravating circumstance required the reversal of his death sentence. Bailey v. Snyder, 855 F. Supp. at 1408. Bailey's petition was assigned to a different district court judge from Flamer's, but the judge in Bailey's case reached the same conclusion as the judge in Flamer's. Agreeing with the Supreme Court of Delaware that Delaware is a "non- weighing state" and that Zant is the governing precedent, the district court held that the Bailey jury's finding of a single invalid statutory aggravating   *745   circumstance did not require **19   the reversal of Bailey's death sen- tence. Id. at 1408-11. Bailey then took this appeal.

II.

A.  On  appeal,  both  Flamer  and  Bailey  argue  that Delaware   is   a   "weighing"   state;   that   Clemons   v. Mississippi,  supra,  not  Zant,  is  therefore  the  pertinent Supreme  Court  precedent;  and  that  under  Clemons  the juries' reliance on one or more invalid statutory aggravat- ing circumstances means that their death sentences cannot stand unless there is a judicial reweighing of the evidence without consideration of the invalid circumstances or un- less it is determined that the juries' consideration of those circumstances was harmless. In order to assess these ar- guments, it is necessary to explain the difference between

68 F.3d 736, *745; 1995 U.S. App. LEXIS 29678, **19

Page 7

what the Supreme Court has termed "weighing" and "non- weighing" states.

B.  At  the  time  of  the  Supreme  Court's  decision  in

Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92

S. Ct. 2726 (1972), "sentencing juries had almost com- plete discretion in determining whether a given defendant would  be  sentenced  to  death  .  .  .  ."  Johnson  v.  Texas,

125 L. Ed. 2d 290, 113 S. Ct. 2658, 2664 (1993). "The guiding principle that emerged from Furman was that the States were required to channel the discretion of sentenc- ing **20   juries in order to avoid a system in which the death penalty would be imposed in a 'wanton' and 'freak- ish' manner." Id. (citation omitted) (brackets in original). Since then,  the Supreme Court has repeatedly said that a state's capital sentencing scheme "must genuinely nar- row  the  class  of  persons  eligible  for  the  death  penalty and must reasonably justify the imposition of a more se- vere sentence on the defendant compared to others found guilty of murder." Zant, 462 U.S. at 877; see also Tuilaepa v. California, 129 L. Ed. 2d 750, 114 S. Ct. 2630, 2634

(1994); Arave v. Creech, 123 L. Ed. 2d 188, 113 S. Ct.

1534,  1542 (1993); Godfrey,  446 U.S. at 428-29. This narrowing is typically achieved by permitting the impo- sition of a death sentence only if the trier of fact finds at either the guilt or penalty phase that at least one statuto- rily specified aggravating circumstance has been proven. See Tuilaepa,  114 S. Ct. at 2634; Lewis v. Jeffers,  497

U.S. 764, 774, 111 L. Ed. 2d 606, 110 S. Ct. 3092 (1990); Blystone v. Pennsylvania, 494 U.S. 299, 306-07, 108 L. Ed. 2d 255, 110 S. Ct. 1078 (1990). Such a finding makes a defendant "'eligible' for the death penalty." See Tuilaepa,

114 S. Ct. at 2634; Lewis, 497 U.S. at 774.

Because  the  aggravating  factors  listed  in   **21    a state's capital sentencing statute perform this critical nar- rowing function, the Supreme Court has insisted that these factors  be  defined  with  some  precision,  for  if  they  are too vague they can leave "the kind of open-ended dis- cretion which was held invalid in Furman." Maynard v. Cartwright, 486 U.S. 356, 362, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988). As previously explained, it was for this reason that the Court held that the circumstance at issue in Godfrey -- whether the murders were "outrageously or wantonly vile, horrible or inhuman" -- was inadequate to channel the jury's eligibility determination. In Maynard v. Cartwright,  486 U.S. at 362, the Court subsequently reached the same conclusion with respect to the circum- stance  of  whether  the  murder  was  "especially  heinous, atrocious, or cruel." Although the statutorily defined ag- gravating circumstances at issue in Godfrey and Maynard refer to underlying considerations that may properly be taken into account in deciding whether a death sentence should  be  imposed,  their  flaw  is  that  they  do  not  ade- quately narrow the factfinder's discretion in determining

whether a defendant should be found to be eligible for a death sentence. See Maynard,   **22   486 U.S. at 361-

62; Zant, 462 U.S. at 885-89.

"Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty," a state is free to allow "the jury . . . to consider a myriad of factors to determine whether death is the appropriate punishment." California v. Ramos, 463

U.S. 992, 1008,   *746    103 S. Ct. 3446, 77 L. Ed. 2d

1171 (1983). A state must permit the factfinder to con- sider all mitigating evidence.  Eddings v. Oklahoma, 455

U.S. 104,  112,  71 L. Ed. 2d 1,  102 S. Ct. 869 (1982); Lockett  v.  Ohio,  438  U.S.  586,  604-05,  57  L.  Ed.  2d

973, 98 S. Ct. 2954 (1978). But a state has considerable leeway with respect to the role of aggravating factors at this stage. One permissible method is exemplified by the Georgia sentencing scheme at issue in Zant v. Stephens. Another permissible method is exemplified by the scheme discussed in Clemons v. Mississippi.

C.  Zant,  as  previously  noted,  involved  the  Georgia capital  sentencing  scheme.  Under  that  scheme,  as  de- scribed by the Georgia Supreme Court in response to a question certified from the Supreme Court of the United States,  the  factfinder  at  the  penalty  phase  was  first  re- quired  to  determine  whether  at  least  one  of  the  aggra- vating circumstances enumerated **23   by statute was present. See 462 U.S. at 870-72. If the factfinder found at  least  one  of  these  circumstances,  the  factfinder  was then required to "'consider  all evidence in extenuation, mitigation  and  aggravation  of  punishment.'"  Id.  at  871

(quoting 297 S.E.2d 1, 3-4 (1982)).

In  Zant,  after  the  defendant,  Stephens,  was  found guilty of murder, the state requested that the jury impose the  death  penalty  and  argued  that  the  following  aggra- vating  circumstances  listed  in  the  Georgia  statute  were present:  (1)(a) that the defendant had "a prior record of conviction for a capital felony" or (b) "a substantial his- tory of serious assaultive criminal convictions"; (2) that the offense was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim"; and (3) that the de- fendant had escaped from lawful custody or confinement. Id. at 865 n.1. The jury imposed the death penalty and stated that it had found the presence of the aggravating circumstances labeled above as (1)(a) (that the defendant had a prior conviction for a capital felony), (1)(b) (that he had a substantial history of serious assaultive criminal

**24    convictions), and (3) (that he had escaped from lawful custody or confinement). Id. at 866-67.

The Georgia Supreme Court subsequently held in an- other case, Arnold v. State, 236 Ga. 534, 224 S.E.2d 386,

541-42 (Ga. 1976), that circumstance (1)(b)-- a "substan-

68 F.3d 736, *746; 1995 U.S. App. LEXIS 29678, **24

Page 8

tial history of serious assaultive criminal convictions" -- was unlawfully vague for Eighth Amendment purposes. In light of this decision, the Georgia Supreme Court con- sidered whether the jury's finding of this improper aggra- vating circumstance rendered Stephens's death sentence invalid. The court concluded that it did not, because the other  circumstances  found  by  the  jury  adequately  sup- ported Stephens's sentence. See Stephens v. State, 34 N.C. App. 1, 237 S.E.2d 259, 261-62, cert. denied, 429 U.S.

986 (1978); Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d

92, 97-98, cert. denied, 439 U.S. 991, 58 L. Ed. 2d 667,

99 S. Ct. 593 (1978).

The Fifth Circuit, however, held that the jury's consid- eration of this circumstance rendered Stephens's sentence unconstitutional.  Among  other  things,  the  Fifth  Circuit concluded that the reference to this factor in the jury in- structions "may have unduly directed the jury's attention to Stephens's  prior convictions." Stephens v. Zant, 648

F.2d 446   **25   (5th Cir. 1981). The Fifth Circuit added that it could not be "determined with the degree of cer- tainty required in capital cases that the instruction did not make a critical difference in the jury's decision to impose the death penalty." Id.

The Supreme Court reversed. The Court noted that the finding of a statutory aggravating circumstance played a limited  role  under  the  Georgia  scheme.  Such  a  finding

"narrowed the class of persons convicted of murder who are eligible for the death penalty" but did not thereafter

"play any role in guiding the sentencing body in the ex- ercise of its discretion." 462 U.S. at 874. Concluding that this scheme sufficiently structured the sentencer's discre- tion, the Court wrote:

Our cases indicate . . . that statutory aggra- vating circumstances play a constitutionally necessary function at the stage of legislative definition:   They  circumscribe  the  class  of persons eligible for the death *747  penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.

Id. at 878 (emphasis added).   **26

The   Court   then   considered   whether,   under   this scheme, the jury's finding of one vague statutory aggravat- ing circumstance necessitated the reversal of Stephens's death sentence even though other valid statutory aggravat- ing circumstances were also found. The Court held that it did not. After noting that the jury had "found aggravat-

ing circumstances that were valid and legally sufficient to support the death penalty," id. at 881, the Court rejected Stephens's argument that reversal was necessary because the trial judge's instructions concerning the invalid statu- tory  aggravating  circumstance  "may  have  affected  the jury's deliberations," id. at 885. The Court wrote:

In  analyzing  this  contention  it  is  essential to keep in mind the sense in which that ag- gravating circumstance is 'invalid.' It is not invalid because it authorizes the jury to draw adverse inferences from conduct that is con- stitutionally protected. . . . Georgia has not  attached the 'aggravating' label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political af- filiation of the defendant, . . . or to conduct that   **27    actually  should  militate  in  fa- vor of a lesser penalty, such as perhaps the defendant's mental illness.

Id. at 885 (citations omitted). Rather, the Court observed, the  circumstance  in  question  had  been  found  to  be  in- valid because it failed "to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed." Id. at 886. But the Court pointed out that "the underlying evidence was  nevertheless fully admissible at the sentencing phase." Id.

Responding to the Fifth Circuit's statement that the judge's instruction "may have unduly directed the jury's attention to Stephens's  prior conviction," the Supreme Court assumed that the instruction had in fact "induced the jury to place greater emphasis upon the defendant's  prior criminal record than it would otherwise have done." Id. at

888. The Court held, however, that this emphasis had not violated Stephens's constitutional rights. The Court stated that it would have been constitutional for the trial judge to instruct the jury that "it would be appropriate to take account of a defendant's prior criminal record **28   in making its sentencing determination," id., and the Court saw little difference between such an instruction and the one actually given. Id. The Court thus commented that

"the effect the erroneous instruction may have had on the jury is therefore merely a consequence of the statutory label  'aggravating  circumstance.'"  Id.  While  "that  label arguably might have caused the jury to give somewhat greater weight to the defendant's  prior criminal record than it otherwise would have given," the Court observed,

"any possible impact cannot fairly be regarded as a con- stitutional defect in the sentencing process." Id. at 888-

68 F.3d 736, *747; 1995 U.S. App. LEXIS 29678, **28

Page 9

89 (emphasis added). In reaching this conclusion, how- ever, the Court withheld opinion "concerning the possible significance of a holding that a particular aggravating cir- cumstance is 'invalid' under a statutory scheme in which the judge or jury is specifically instructed to weigh statu- tory aggravating and mitigating circumstances in exercis- ing its discretion whether to impose the death penalty." Id. at 890.

D. The Court considered a sentencing scheme of this latter type in Clemons v. Mississippi,  supra. Under the Mississippi  scheme,  like   **29    the  Georgia  scheme, the factfinder at the penalty phase of a capital case was first required to find the presence of at least one statutory aggravating circumstance. See 494 U.S. at 744-45. But the  two  schemes  differed  with  respect  to  the  next  step that the factfinder was instructed to perform. Whereas the Georgia scheme called for the factfinder to consider all aggravating  evidence,  the  Mississippi  scheme  required the factfinder to consider only those   *748   aggravating elements  enumerated  in  the  statute  and  to  weigh  those elements against the mitigating circumstances. See id. at

743 n.1, 745 n.2. The Clemons Court -- employing termi- nology that can be quite misleading in the context of the cases now before us-described Mississippi as a "weigh- ing" state because its statute called for the jury to "weigh" the statutory aggravating circumstances against the miti- gating circumstances. See id. at 748-49.

In Clemons, the jury found the presence of two statu- torily defined aggravating factors -- that the murder was committed during a robbery for pecuniary gain and that the murder was "especially heinous, atrocious, or cruel." Id.  at  742.  Concluding  that  these  factors   **30    out- weighed any mitigating circumstances, the jury imposed a sentence of death. Id. The second of the statutory ag- gravating factors was later held to be unconstitutionally vague  for  Eighth  Amendment  purposes.  See  Maynard,

486 U.S. at 362. Noting that Mississippi was a "weigh- ing  state"  and  that  the  jury  had  weighed  this  statutory factor  in  imposing  a  death  sentence,  the  Court  vacated that sentence and remanded for the Mississippi Supreme Court to determine whether the remaining valid statutory aggravating circumstance outweighed the mitigating cir- cumstances  or  to  conduct  a  harmless  error  review.  See

494 U.S. at 741.

In subsequent decisions, the Supreme Court has pro- vided explanations of the reasoning on which the holding in Clemons rests. For example, in Sochor v. Florida, 504

U.S. 527, 112 S. Ct. 2114, 2119, 119 L. Ed. 2d 326 (1992), the Court explained: n14

In  a  weighing  state  .  .  .  there  is  Eighth

Amendment error when the sentencer weighs

an  "invalid"  aggravating  circumstance   in reaching  the  ultimate  decision  to  impose  a death sentence. See Clemons v. Mississippi,

494 U.S. 738,  752,  110 S. Ct. 1441,  1450,

108  L.  Ed.  2d  725  (1990).  Employing  an invalid  aggravating  factor  in  the  weighing

**31    process  "creates  the  possibility  .  .

. of randomness," Stringer v. Black, 503 U.S.

222, 112 S. Ct. 1130, 1139, 117 L. Ed. 2d 367

(1992), by placing a "thumb on  death's side of the scale," id. at               , 112 S. Ct. at 1137, thus

"creating the risk of  treating the defendant as more deserving of the death penalty," id. at

, 112 S. Ct. at 1139. Even when other valid aggravating factors exist as well, merely af- firming a sentence reached by weighing an invalid aggravating factor deprives a defen- dant  of  "the  individualized  treatment  that would result from actual reweighing of the mix of mitigating factors and aggravating cir- cumstances."  Clemons,  supra,  494  U.S.  at

752, 110 S. Ct. at 1450 . . . .

n14  Similarly,  in  Stringer  v.  Black,  503  U.S.

222, 231, 117 L. Ed. 2d 367, 112 S. Ct. 1130 (1992), the Court observed that "in a nonweighing state, so long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an in- valid aggravating factor does not affect the formal process of deciding whether death is an appropriate penalty." In a "weighing" state, however, the Court observed:

When  the  sentencing  body  is  told  to weigh an invalid factor in its decision, a  reviewing  court  may  not  assume  it would have made no difference if the thumb had been removed from death's side of the scale. When the weighing process  itself  has  been  skewed,  only constitutional harmless-error analysis or  reweighing  at  the  trial  or  appel- late level suffices to guarantee that the defendant  received  an  individualized sentence.

Id.

**32

E.  In  order  to  illustrate  the  reason  for  the  distinc- tion  that  the  Supreme  Court  has  drawn  between  "non- weighing" states like Georgia and "weighing" states like

68 F.3d 736, *748; 1995 U.S. App. LEXIS 29678, **32

Page 10

Mississippi,  it  is  helpful  to  compare  how  the  effect  of the invalid aggravating circumstance in Zant would dif- fer  at  the  selection  step  in  the  two  types  of  states.  As previously  noted,  the  invalid  statutory  aggravating  cir- cumstance in Zant was "a substantial history of serious assaultive  criminal  convictions."  Due  to  its  vagueness, this standard created a serious danger that different ju- ries would reach different conclusions based on identical facts. If, for example, a defendant had two prior convic- tions,  one  for  a  mugging  and  one  for  a  barroom  fight, some juries might well conclude that these convictions satisfied the   *749    standard,  while others might well reach the opposite conclusion. At the "selection" step in a "non-weighing" state, however, this possibility would not carry with it an unacceptably high risk of altering the jury's  ultimate  sentencing  decision.  This  is  so  because, whether or not the jury found that the standard had been met, it would still consider the same underlying facts, i.e., that the defendant **33   had one prior conviction for a mugging and one for a barroom fight.

By contrast, in a "weighing" state, this vague standard would create an unacceptably high risk of affecting the jury's decision at the selection step. Those juries that con- cluded that the standard had been met could consider the defendant's prior convictions, and this factor might well tip the balance in favor of the death penalty. On the other hand, those juries that concluded that the standard had not been met could not consider the defendant's prior convic- tions at all, and this might well tip the balance against the death penalty. Accordingly, as the Supreme Court has put it, "employing an invalid aggravating factor in the weigh- ing process 'creates the possibility . . . of randomness,' . .

. thus 'creating the risk of treating the defendant as more deserving  of  the  death  penalty.'"  Sochor,  112  S.  Ct.  at

2119 (citations omitted; brackets in original).

F.  With  this  background  in  mind,  it  seems  quite clear that Delaware is a "non-weighing" state. Under the Delaware  scheme,  the  jury  at  the  selection  step  of  the penalty  phase  is  free  to  consider  all  relevant  evidence in aggravation. The jury is not restricted **34    to the statutory aggravating factors. In this critical feature, the Delaware  scheme  mirrors  the  Georgia  capital  sentenc- ing scheme discussed in Zant and contrasts sharply with the  Mississippi  capital  sentencing  scheme  discussed  in Clemons.  We  therefore  agree  with  the  analysis  of  the Delaware Supreme Court and the district court judges who denied the petitions that are now before us. See Flamer v. Chaffinch, 827 F. Supp. at 1095; Bailey v. Snyder, 826 F. Supp. at 822; Flamer v. State, 490 A.2d at 135.

Flamer's  and  Bailey's  argument  that  Delaware  is  a

"weighing"  state  is  no  more  than  a  play  on  the  use  of the  word  "weigh"  in  the  Delaware  statute.  Flamer  and

Bailey argue that Delaware is a weighing state because the  Delaware  statute  states  that  in  the  "selection"  step the jury must "unanimously recommend , after weigh- ing all relevant evidence . . . that a sentence of death be imposed." Del. Code Ann. tit. 11 § 4209(d)(1)(b) (em- phasis  added).  They  distinguish  the  Georgia  statute  on the ground that it provided that "the judge shall consider, or  he  shall  include  in  his  instructions  to  the  jury  for  it to consider, any mitigating circumstances or aggravating

**35    circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence . . . ." See Zant,

462 U.S. at 865 n.1. (emphasis added). Flamer and Bailey argue that Delaware is a "weighing" state simply because the  Delaware  statute  instructs  the  jury  to  "weigh"  (not consider) aggravating and mitigating circumstances. See Flamer Br. at 74; Bailey Br. at 64.

We reject these arguments. "The difference between a  weighing  State  and  a  non-weighing  State  is  not  one of 'semantics.'" Stringer, 503 U.S. at 231. "The Supreme Court's weighing/non-weighing distinction does not turn simply on whether or not the word weighing appears in a state's statute." Williams v. Calderon, 52 F.3d 1465, 1477

(9th Cir. 1995). The fact that the Delaware statute em- ploys the term "weigh" rather than the term "consider" is inconsequential for present purposes. The term "weigh" is defined as meaning "consider or examine for the purpose of  forming  an  opinion  or  coming  to  a  conclusion"  and

"consider carefully especially by balancing one . . . thing against  another  in  order  to  make  a  choice,  decision  or judgment," Webster's Third   **36      New International Dictionary  2593  (1973)  (emphasis  added);  similarly,  a synonym of "consider" is "weigh." Id. at 483. Thus, the Delaware  legislature's  choice  of  the  word  "weighing" rather  than  "considering"  is  of  no  Eighth  Amendment significance.

III.

A. Bailey and Flamer next argue that, even if Delaware is a "non-weighing" state,   *750   their death sentences must nevertheless be reversed because of the particular nature of the jury instructions and interrogatories used in their cases. As we have mentioned, the instructions and interrogatories  given  in  these  two  cases  were  virtually identical. (The relevant portions of the instructions and interrogatories in both cases are set out in appendices to this opinion.)

In both cases, the trial judges, quoting Del. Code Ann. tit. 11, § 4209(d)(1), told the jurors:

A sentence of death shall not be imposed un- til the jury finds:

68 F.3d 736, *750; 1995 U.S. App. LEXIS 29678, **36

Page 11

1. Beyond a reasonable doubt at least one statutory aggravating circumstance; and

2.             Unanimously         recommend,           after weighing all relevant evidence in aggravation or mitigation which bears upon the particu- lar circumstance or details of the commission of the offense and the character and **37  propensities of the offender, that a sentence of death be imposed.

Appendix A, infra, at i (emphasis added);  Appendix C, infra,  at  vi  (emphasis  added).  The  judges  also  told  the jurors that Delaware law specified certain statutory ag- gravating circumstances and that "the State may likewise offer matters in aggravation besides the statutory aggra- vating circumstances." Appendix A, infra, at i (emphasis added); Appendix C, infra, at vi (emphasis added).

The judges then listed the statutory aggravating cir- cumstances that the state contended had been proven in each case, and both judges also pointed out to the juries that  their  verdicts  at  the  guilt  phase  had  already  estab- lished the existence of at least one statutory aggravating factor --  in Flamer's case that the murders had occurred during the commission of the felony of robbery, n15 and in Bailey's case that the defendant had caused the death of two persons where the deaths were the probable con- sequences of his conduct.

n15 See supra page 9.

**38

The judges subsequently told the juries:

The  law  provides  that  a  sentence  of  death shall  not  be  imposed  unless  you  find  be- yond a reasonable doubt at least one statu- tory  aggravating  circumstance  and  unani- mously recommend,  after weighing all rel- evant evidence in aggravation . . . and mit- igation which bears upon the particular cir- cumstances or details of the commission of the offense and the character and propensi- ties of the offender, that a sentence of death be imposed.

See  Appendix  A,  infra,  at  ii  -  iii  (emphasis  added); Appendix C, infra, at vii (emphasis added). Shortly there- after, both judges reiterated:

In conclusion, a sentence of death shall not be  imposed  unless  you,  the  jury,  find  be- yond  a  reasonable  doubt  that  at  least  one

statutory aggravating circumstance has been established and unanimously recommend a sentence  of  death  be  imposed  after  weigh- ing all relevant evidence in aggravation and mitigation which bear upon the particular cir- cumstance and details of the commission of the offense and the character and propensities of the offender.

See Appendix A, infra, at iii (emphasis added); Appendix

C, infra, at viii **39   (emphasis added).

The judges then turned to the interrogatory forms that were used in both cases. The first question on these forms asked:

1.   Does   the   jury   unanimously   find   that the following statutory aggravating circum- stance or circumstances exist?

See Appendix B, infra, at v; Appendix D, infra, at ix. This question was followed by a list of the statutory aggravat- ing  circumstances,  and  after  each  circumstance  a  spot was provided for the jury to check either "Yes" or "No." n16 Id. The judges in both cases instructed the juries to check these statutory aggravating circumstances if they found them to have been established beyond   *751    a reasonable doubt. Appendix A, infra, at iii-iv; Appendix C, infra, at viii.

n16  In  Flamer's  case,  three  statutory  aggra- vating  circumstances  were  listed.  One  additional circumstance was deemed by statute to have been proven as a result of the jury's verdict at the guilt phase and was therefore not listed. See supra page

9. In Bailey's case, four statutory aggravating cir- cumstances were listed.

**40

The second interrogatory question was:

2.  Does  the  jury  unanimously  recom- mend a sentence of death be imposed?

See  Appendix  B,  infra,  at  v;  Appendix  D,  infra,  at  ix. Under this question were spots for the jury to mark "Yes" or "No." Id.

The third and final question -- which is the focal point of the arguments concerning the jury instructions and in- terrogatories -- stated:

3. If the jury unanimously recommends that a sentence of death be imposed, please indicate

68 F.3d 736, *751; 1995 U.S. App. LEXIS 29678, **40

Page 12

which statutory aggravating circumstance or circumstances were relied upon.

If you recommend the death penalty,   you   will   then   indi- cate on the written interrogatory which statutory aggravating cir- cumstance or circumstances . . . you relied upon in reaching your decision.

See Appendix A, infra,  at iv;  Appendix C, infra, at viii.

See Appendix B, infra,  at v;  Appendix D, infra,  at ix- x.  This  question,  like  the  first,  was  followed  by  a  list of statutory aggravating circumstances, and spaces were furnished under each circumstance for the jury to mark

"Yes" or "No." n17 Id. The judges in both cases told the juries:

n17  In  both  cases,  four  statutory  aggravating circumstances were listed after interrogatory three.

**41

Based on these instructions and interrogatories, two separate arguments are made.

B. The initial argument is that, even if the Delaware statute "on its face" created a "non-weighing" scheme, jury interrogatory #3 and the corresponding portion of the instructions converted the Delaware sentencing scheme

"as applied" into a "de facto" weighing scheme. (For con- venience, we will use the term "interrogatory #3" to refer to both the interrogatory itself and the corresponding por- tion of the instructions.). In support of this argument, it is contended that interrogatory #3 mistakenly suggested to the jury that, at the selection step, it could not rely on non-statutory aggravating circumstances but was limited to those aggravating circumstances set out in the Delaware statute. Accordingly, since it is the hallmark of a "weigh- ing" scheme to require the jury at the selection step to rely on only the statutory aggravating factors, it is argued that interrogatory #3 made the Delaware scheme a "de facto"

"weighing" scheme "as applied." We disagree with this argument for two reasons.

1. First, we believe that the instructions in both cases, when  viewed  in  their  entirety,  made  it  quite  clear  that

**42   the juries, at the selection step, were free to con- sider any evidence in aggravation and thus were not re- quired to restrict their consideration to only the statutory aggravating  factors.  In  both  cases,  the  trial  judges  in- structed the juries three times that, at the selection step, they were to "weigh  all relevant evidence in aggravation

and mitigation which bears upon the particular circum- stances or details of the commission of the offense and the character and propensities of the offender." Moreover, written copies of the instructions were given to the juries for their use during deliberations in both cases. Flamer JA at 1466; Bailey Tr. of 2/15/80 at 275-76. At a fourth place in the instruction, the juries were told that the state was permitted to "offer matters in aggravation besides the statutory aggravating circumstances." Thus, the juries in both cases were expressly, unambiguously, and repeatedly told that, at the selection step, they were free to consider non-statutory aggravating circumstances.

While it is now argued that jury interrogatory #3 con- veyed a conflicting message, it is important to note that this interrogatory did not expressly contradict the instruc- tions **43   quoted above. In other words, interrogatory

#3 did not expressly inform the juries that they could not consider non-statutory aggravating evidence. Instead, as noted, interrogatory #3 merely told the juries that, if they unanimously recommended a death sentence, they should indicate "which statutory aggravating circumstance or cir- cumstances  were  relied  upon."  n18  The  worst  that  can fairly be   *752   said of the wording of this interrogatory question is that it might be read to suggest that the jury could not recommend a death sentence unless it relied, at least in part, on a statutory aggravating circumstance.

n18 As noted, the corresponding portion of the instructions stated:

If you recommend the death penalty, you will then indicate on the written in- terrogatory which statutory aggravat- ing circumstance or circumstances . . . you relied upon in reaching your deci- sion.

It is, of course, well established that a jury instruction may not be judged "'in artificial isolation,' but must be considered in **44    the context of the instructions as a whole and the trial record.'" Estelle v. McGuire,  502

U.S. 62,  72,  116 L. Ed. 2d 385,  112 S. Ct. 475 (1991)

(quoting Cupp v. Naughten, 414 U.S. 141, 147, 38 L. Ed.

2d 368, 94 S. Ct. 396 (1973)). The same rule, we believe, should  apply  to  a  jury  interrogatory.  Therefore,  in  the cases now before us, we must consider the entire charge and interrogatories to determine whether,  as a result of interrogatory #3, there was a "reasonable likelihood" that the jurors were led to believe that they could not consider non-statutory aggravating factors at the "selection" step. See Estelle, 112 S. Ct. at 482 n.4; Boyde v. California,

494 U.S. 370, 380, 108 L. Ed. 2d 316, 110 S. Ct. 1190

(1990); Rock v. Zimmerman, 959 F.2d 1237, 1247 & n.3

68 F.3d 736, *752; 1995 U.S. App. LEXIS 29678, **44

Page 13

(3d Cir.) (in banc), cert. denied, 112 S. Ct. 3036 (1992). As we have noted, the juries were expressly, clearly, and repeatedly instructed, orally and in writing, that at the

"selection" step they were to weigh all relevant evidence in aggravation. We do not think that there was a "reason- able likelihood" that the juries, in the face of these express instructions, nevertheless inferred from interrogatory #3 that they were actually limited to considering the statu- tory aggravating circumstances. See Shannon   **45    v. United States, 129 L. Ed. 2d 459, 114 S. Ct. 2419, 2427

(1994) (it is "'the almost invariable assumption of the law that jurors follow their instructions'") (quoting Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1982)). If the jury in either case had interpreted interrogatory #3 as implying such a restriction -- and thus as directly conflicting with the clear and explicit instruc- tions repeatedly given by the trial judges-the reasonable thing for the jury to have done would have been to have asked for clarification on this point. But no such request was made in either case. n19

n19  It  is  noteworthy that  none  of  the  partici- pants in either trial seemed to think that this word- ing  presented  any  problems.  As  noted,  the  same interrogatory form was used and the same corre- sponding instructions were given by two different trial judges. The record does not reflect that either Flamer's  or  Bailey's  trial  counsel  objected  to  the wording of interrogatory #3 or the corresponding portion of the instructions. Moreover, although the implication now attributed to interrogatory #3 was potentially damaging to the prosecution, the prose- cutors did not object to this wording in either case.

**46

For these reasons, we are convinced that the instruc- tions  and  interrogatories  in  each  case,  when  viewed  in their entirety, made it clear that the jury, at the selection step,  was  free  to  consider  all  evidence  in  aggravation, and was not limited to the statutory aggravating circum- stances.

2. Second, even if this point had not been made clear and the juries had been left with the mistaken belief that they could consider only the statutory aggravating circum- stance at the selection step, we are at a loss to understand how this could have materially prejudiced these defen- dants. It is not claimed that interrogatory #3 restricted the juries  in  their  consideration  of  any  evidence  in  mitiga- tion,  i.e.,  any evidence that might have been helpful to the defendants. Instead, it is claimed that interrogatory #3 improperly restricted the aggravating evidence that the ju- ries could consider. We can understand how an improper

restriction on aggravating evidence could harm the pros- ecution, but it simply makes no sense to argue that death sentences should be overturned because the juries were unduly  restricted in their consideration  of the evidence militating in favor of the death penalty.   **47

C. The remaining argument is that the references to invalid statutory aggravating circumstances in the instruc- tions and interrogatories in these two cases violated the Eighth Amendment because they led the   *753   juries to give much greater weight or consideration to the facts un- derlying the invalid statutory aggravating circumstances than those facts would otherwise have received. We see no merit in this argument.

In large part, this argument relies on the effect of the statutory label "aggravating circumstance," and to this ex- tent this contention is foreclosed by the Supreme Court's decision in Zant. There, as previously noted, the Supreme Court recognized that such a label "arguably might have caused the jury to give somewhat greater weight to peti- tioner's prior criminal record than it otherwise would have given." 462 U.S. at 888. Nevertheless, the Court held that

"any possible impact" resulting from the use of that label

"could not fairly be regarded as a constitutional defect in the sentencing process." Id. at 889 (footnote omitted).

While Zant would thus appear to be controlling, it is argued that in the cases now before us interrogatory #3, by suggesting that the juries **48   could not consider non- statutory aggravating factors at the selection step, placed far more emphasis on the invalid factors than occurred in Zant. There are, however, at least three fatal flaws in this argument.

First, we see no difference of constitutional dimension between the directions given to the jury in these cases and those given to the jury in Zant. In the cases now before us, interrogatory #3 and the corresponding portion of the instructions told the juries that, if they unanimously rec- ommended a death sentence, they should indicate "which statutory aggravating circumstance or circumstances were relied upon." In Zant, the jury was told:

If the jury verdict on sentencing fixes punish- ment at death by electrocution, you shall des- ignate in writing, signed by the foreman, the aggravating  circumstance  or  circumstances which you have found to have been proven beyond a reasonable doubt.

462 U.S. at 866.

Second, as discussed above, we reject the argument that the instructions and interrogatories in the cases before

68 F.3d 736, *753; 1995 U.S. App. LEXIS 29678, **48

Page 14

us, when considered in their entirety, created a "reason- able likelihood" that the juries were led to believe that, at the selection step,   **49   they were not free to con- sider all evidence in aggravation, as opposed to only the statutory aggravating circumstances.

Finally, even if the juries had believed that they could not consider non-statutory aggravating factors at the se- lection step, this would not have naturally caused the ju- ries to give the facts underlying the invalid statutory aggra- vating circumstances any greater weight than those facts would have otherwise received. An example may help to clarify this point. Suppose that, at the selection step in a non-weighing state like Delaware, there are three items of aggravating evidence. One item does not fall within any of the statutory aggravating circumstances; let us say it is a prior history of convictions for property crimes. Another item falls within an unobjectionable statutory aggravat- ing circumstance; let us say that this item is the killing of more than one person. The final item falls within a vague statutory  aggravating  circumstance.  Let  us  say  that  the vague statutory aggravating circumstance is that the mur- ders were "heinous," and let us say that the prosecution contends that the murders were "heinous" because they were carried out in a particularly painful **50   manner. If the jury in this hypothetical case was erroneously led to  believe  that  it  could  not  consider  non-statutory  fac- tors at the selection step, the jury would not consider the first item --  the prior history of convictions for property crimes. But we do not understand why this unwarranted restriction would result in the jury's giving the facts under- lying the vague factor -- that the murders were allegedly committed in a particularly painful manner -- any greater weight than those facts would have otherwise received. The jury would consider the second and third statutory factors; and as we explicate supra in Part II C, the third factor,  because  it  was  specific  aggravating  evidence  of the painful manner of causing death in this case, would be relevant. See Zant, 462 U.S. at 885. The fact that the jury considered only two of the three permissible aggra- vating factors would not give wundue weight to either of the two factors considered;  nor would the jury   *754  consider any impermissible factor. Id. Hence, we are un- persuaded by the argument that the erroneous message al- legedly conveyed by interrogatory #3 in the cases before us somehow led the juries to give greater weight **51  to the facts underlying the invalid statutory aggravating circumstances.

For  all  these  reasons,  we  reject  the  contention  that these cases can be distinguished from Zant on the ground that the references in these cases to invalid statutory aggra- vating circumstances led the juries to give much greater weight to the facts underlying those circumstances. On the contrary, we find Zant to be controlling, and we therefore

reject the petitioners' arguments. n20

n20 While we do not find constitutional error in these cases, we strongly disapprove of the prac- tice of a judge in a non-weighing state using a jury interrogatory that asks which statutory aggravating circumstance the jury "relied upon" in recommend- ing the death penalty. Because statutory aggravating circumstances have no special significance at the

"selection" phase, such an interrogatory is poten- tially misleading and injects unnecessary confusion into the jury's deliberations.

IV.

We  now  turn  to  Bailey's  additional  arguments.  n21

We will first discuss **52   those that concern the guilt phase of his trial, and will then address those that pertain to the penalty phase.

n21 As noted, Flamer's other arguments are ad- dressed  in  a  separate  panel  opinion  that  is  being filed simultaneously with this opinion.

A. Guilt Phase.

1. Bailey first argues that the trial court violated his constitutional  right  to  an  impartial  jury  by  denying  his request for a change of venue due to prejudicial pretrial publicity in Kent County,  where the murders occurred. Bailey does not contend that any of the jurors who sat on his case were biased or that the trial judge erred in denying any challenges for cause. Rather, Bailey main- tains that "the publicity in this case . . . combined with widespread contact by members of the venire  prior to trial resulted in . . . such a 'wave of public passion' that made a fair trial unlikely in Kent County no matter the record assurances of impartiality of the twelve jurors who decided Bailey's fate." Bailey Br. at 31.

Bailey's  argument  relies  chiefly   **53    on  Irvin  v. Dowd,  366 U.S. 717,  6 L. Ed. 2d 751,  81 S. Ct. 1639

(1961),  which  "held  that  adverse  pretrial  publicity  can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed." Patton v. Yount, 467 U.S. 1025, 1031,

81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984). Irvin, however, was a case involving "extraordinary publicity," Mu'Min v. Virginia, 500 U.S. 415, 427, 114 L. Ed. 2d 493, 111 S. Ct. 1899 (1991), that had a remarkably prejudicial effect on the minds of potential jurors. See id. at 428. In order to invoke Irvin's presumption of prejudice, "the community and  media  .  .  .  reaction  must  have  been  so  hostile  and so  pervasive  as  to  make  it  apparent  that  even  the  most

68 F.3d 736, *754; 1995 U.S. App. LEXIS 29678, **53

Page 15

careful  voir  dire  process  would  be  unable  to  assure  an impartial jury." Rock v. Zimmerman, 959 F.2d at 1252.

"Such cases are exceedingly rare." Id. at 1253. See also

United States v. De Peri, 778 F.2d 963, 972 (3d Cir. 1985)

("It  is  the  rare  case  in  which  adverse  pretrial  publicity will create a presumption of prejudice that overrides the jurors' assurances that they can be impartial.").

The  record  in  this  case  falls  far  short  of  satisfying the Irvin standard. In support of his motion for a change of venue, Bailey **54    relied on a series of articles in the Delaware State News that appeared between May 22,

1979, the day after the murders, and June 13, 1979. The Delaware Supreme Court accurately characterized these stories as follows:

The articles were indisputably factual in na- ture, but prejudicial and inflammatory only to the extent arising from the normal and nat- ural reaction to any purely factual news item about a very serious crime.

490 A.2d at 162. In addition, as the Delaware Supreme Court noted, many of the stories centered, not so much on Bailey or the facts of the murders, but on the political con- troversy about the work release program. See Bailey Joint Appendix ("Bailey JA") at   *755    247, 250, 252, 254,

255, 258. We have read the articles on which Bailey relied, and we conclude that they are neither quantitatively nor qualitatively comparable to the publicity in Irvin. Indeed, the pretrial publicity in this case was clearly no more ex- tensive or prejudicial than that in cases such as Mu'Min, n22 Patton, n23 Murphy v. Florida, 421 U.S. 794, 799, 44

L. Ed. 2d 589, 95 S. Ct. 2031 (1974), and United States v. Provenzano, 620 F.2d 985, 995-96 (3d Cir.), cert. denied,

449 U.S. 899, 66 L. Ed. 2d 129, 101 S. Ct. 267 (1980),

**55   in which no presumption of prejudice was found.

n22 See 500 U.S. at 418-19.

n23 See Yount v. Patton, 710 F.2d 956, 962-63

(3d Cir. 1983), rev'd, 467 U.S. 1025, 81 L. Ed. 2d

847, 104 S. Ct. 2885 (1984).

It  is  also  significant  that  there  was  a  lapse  of  eight months  between  the  publication  of  the  last  newspaper story on which Bailey relied (June 13, 1979) and the start of jury selection (February 12, 1980). "That time soothes and erases is a perfectly natural phenomenon, familiar to all." Patton, 467 U.S. at 1034. In Murphy, the Supreme Court  noted  that  extensive  publicity  had  stopped  about seven  months  before  jury  selection  and  found  no  pre- sumption of prejudice.  421 U.S. at 802. See also Patton,

467 U.S. at 1035 n.11. In this case, the Delaware Supreme

Court  appropriately  reached  a  similar  conclusion.   490

A.2d at 162.

Finally, the effect of the publicity in this case on the members of the venire was not at all comparable to that in Irvin -- or even in Patton. "In Irvin, the trial court excused over half **56   of a panel of 430 persons because their opinions of the defendant's guilt were so fixed that they could  not  be  impartial,  and  8  of  the  12  jurors  who  sat had formed an opinion as to guilt." Mu'Min, 500 U.S. at

428. In Patton, "all but 2 of the 163 veniremen questioned about the case had heard of it," "77% . . . admitted they would carry an opinion into the jury box," and "8 of the 14 jurors and alternates actually seated admitted that at some time they had formed an opinion as to the defendant's  guilt." 467 U.S. at 1029.

In this case, Bailey cannot show that the pretrial pub- licity or the community familiarity with the case had any comparable effect on the members of the venire. The most that Bailey claims is that about one-half of the venireper- sons answered in the affirmative when they were asked a group of eight questions touching on many matters in addition to familiarity with the case. n24 Moreover, only one  juror  and  one  alternate  were  taken from  the  group of venirepersons who answered any of these questions in the affirmative; neither of these two individuals expressed any familiarity with the case; and Bailey did not move to excuse  either  for  cause.  See  855  F.  Supp.  at  1407-08.

**57

n24 These questions concerned the venireper- sons' bias for or against the defendant, as well as their familiarity with the case, the defendant, the at- torneys, the prospective witnesses, the victims and their family members, and any employees of a po- lice agency or the state Attorney General's office. See 855 F. Supp. at 1406.

For  these  reasons,  we  hold  that  no  presumption  of prejudice is justified in this case and that the trial judge's denial of Bailey's motion for a change of venue did not violate Bailey's constitutional right to an impartial jury.

2. Bailey next contends that his constitutional right to due process was violated as a result of improper state- ments made by the prosecution during closing argument at the guilt phase of his trial. The district court analyzed this argument at length and concluded that it did not pro- vide  a  basis  for  granting  the  writ.  See  855  F.  Supp.  at

1402-04. We are in essential agreement with the district court's analysis.

Bailey did not raise this **58   argument at trial, and

68 F.3d 736, *755; 1995 U.S. App. LEXIS 29678, **58

Page 16

when  he  first  raised  it  during  the  state  post-conviction proceedings, it was found to have been procedurally de- faulted under state law. See Bailey JA at 19-24, 37a. Thus, federal habeas review of this claim is barred unless Bailey can "demonstrate cause for the default and actual preju- dice  as  a  result  of  the  alleged  violation  of  federal  law, or  demonstrate  that  failure  to  consider  the  claim   will result in a fundamental miscarriage of justice."   *756  Coleman v. Thompson, 501 U.S. 722, 724, 115 L. Ed. 2d

640, 111 S. Ct. 2546 (1991).

Bailey contends that he demonstrated "cause" because his trial attorneys' failure to object at trial violated his con- stitutional right to the effective assistance of counsel pur- suant to the standard set out in Strickland v. Washington,

466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Such  a  violation  would  provide  "cause,"  see  Coleman,

501 U.S. at 724; Carrier, 477 U.S. at 488, but we agree with the district court, 855 F. Supp. at 1402-04, and the state  Superior  Court,  Bailey  JA  at  23,  that  Bailey  has not shown that his experienced attorneys were constitu- tionally deficient. One of these attorneys, Howard Hillis, testified that he decided not to object at trial for strategic reasons;   **59    this  explanation  was  credited  by  the Superior Court, Bailey JA at 22; and that finding is bind- ing on us in this proceeding. See 28 U.S.C. § 2254(d). In addition, as the district court observed:

It  was  objectively  reasonable  for  Hillis  to conclude that the prosecutor's acerbic com- ments undermined the State's case more than they hurt Bailey's case. It was also objectively reasonable for Hillis to respond to the pros- ecutor's remarks by addressing them in his own closing argument rather than by making an objection, as Hillis believed the trial judge would not be receptive to such an objection.

855 F. Supp. at 1404.

Furthermore, we agree with the district court, id., and the state Superior Court, Bailey JA at 23, that Bailey has not shown that his attorneys' failure to object at trial re- sulted in "prejudice" under the Strickland test -- i.e., that

"there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. We also hold that failure to consider Bailey's argument would not

"result in a fundamental miscarriage of justice." Coleman,

501 U.S. at **60    724. Moreover, even if we were to consider  Bailey's  argument,  we  would  concur  with  the district court that Bailey has not shown that the prosecu- tor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process."

855 F. Supp. at 1404 (quoting Donnelly v. DeChristoforo,

416  U.S.  637,  643,  40  L.  Ed.  2d  431,  94  S.  Ct.  1868

(1974)). See also, e.g., Darden v. Wainwright, 477 U.S.

168,  181,  91  L.  Ed.  2d  144,  106  S.  Ct.  2464  (1986); Todaro v. Fulcomer, 944 F.2d 1079, 1082 (3d Cir. 1991), cert. denied, 503 U.S. 909, 117 L. Ed. 2d 498, 112 S. Ct.

1271 (1992).

3. Bailey's final argument concerning the guilt phase of his trial is that his constitutional right to due process was violated when the trial judge, in his jury instructions, described a "reasonable doubt" as a "substantial doubt." Bailey contends that this instruction was unconstitutional under  Cage  v.  Louisiana,  498  U.S.  39,  112  L.  Ed.  2d

339, 111 S. Ct. 328 (1990). However, Bailey did not ob- ject to this instruction at trial,  and the Delaware courts held  in  the  post-conviction  proceedings  that  his  objec- tion was procedurally barred under state law. See Bailey JA  at  26,  37a.  Bailey  contends  that  he  is  nevertheless entitled to federal habeas review because he has demon- strated  "cause"  and  "prejudice."   **61    He  maintains that "cause" was established because his attorneys' failure to  object  at  trial  constituted  constitutionally  ineffective assistance. We hold that Bailey's reasonable doubt claim must be rejected.

We agree with the district court that federal habeas review of this claim is barred due to Bailey's procedural default. n25 Although *757  Bailey contends that the al- legedly ineffective assistance of his trial attorneys demon- strated "cause" for this default, we find this argument to be insubstantial. Bailey's trial occurred long before Cage. Just one year before Bailey's trial, the Delaware Supreme Court had approved an instruction virtually identical to the one given here. See Wintjen v. State, 398 A.2d 780,

781 n.2 (Del. 1979). In addition,  the use of the phrase

"substantial  doubt"  was  supported  by  federal  case  law. See United States v. Smith, 468 F.2d 381, 383 (3d Cir.

1972)  ("Reasonable  doubt  of  itself  is  substantial  .  .  .  . It is sufficient if the jury understands reasonable doubt to mean 'a real or substantial doubt' generated by the evi- dence or lack of it."). Under the circumstances, the failure of Bailey's attorneys to object to the reference in the in- structions **62   to "substantial doubt" did not fall below an objective standard of reasonableness.  Strickland, 466

U.S. at 687-91. Consequently, Bailey's attorneys did not render constitutionally ineffective assistance, and Bailey cannot show "cause" for the procedural default.

n25 The district court also held, and the state has argued on appeal, that the nonretroactivity prin- ciple of Teague v. Lane,  489 U.S. 288,  300,  103

L. Ed. 2d 334, 109 S. Ct. 1060 (1989), precludes consideration of Bailey's Cage argument. The ques- tion whether Cage may be applied retroactively in

68 F.3d 736, *757; 1995 U.S. App. LEXIS 29678, **62

Page 17

habeas proceedings has divided the courts of ap- peals. Compare Skelton v. Whitley, 950 F.2d 1037,

1043 (5th Cir. 1992), cert. denied, 113 S. Ct. 102

(1992) (not retroactive) with Adams v. Aiken, 41

F.3d  175,  177-78  (4th  Cir.  1994),  cert.  denied.

115 S. Ct. 2281 (1995) (retroactive) and Nutter v. White, 39 F.3d 1154 (11th Cir. 1994) (same). While the question of retroactivity under Teague should be decided before reaching the merits of a habeas claim, see Caspari v. Bohlen, 127 L. Ed. 2d 236,

114 S. Ct. 948, 953 (1994), neither binding prece- dent nor logic seems to require that the question of retroactivity be considered prior to the question of procedural default. Accordingly, we have turned first to the question of procedural default and have thus found it unnecessary to reach the complicated issues related to Teague.

**63

Moreover, failure to consider Bailey's claim will not result in a "fundamental miscarriage of justice," Coleman,

501 U.S. at 750. We find strong support for this holding in Victor v. Nebraska, 127 L. Ed. 2d 583, 114 S. Ct. 1239

(1994). In Victor, the Supreme Court held that due pro- cess was not violated by jury instructions that described reasonable doubt as follows:

A reasonable doubt is an actual and substan- tial  doubt  arising  from  the  evidence,  from the facts or circumstances shown by the evi- dence,  or from the lack of evidence on the part  of  the  state,  as  distinguished  from  a doubt  arising  from  mere  possibility,  from bare  imagination,  or  from  fanciful  conjec- ture.

114 S. Ct. at 1249 (emphasis added). The Court noted two definitions of the term "substantial":  "not seeming or imaginary" and "that specified to a large degree." Id.

(quoting Webster's Third New International Dictionary,

2280 (2d ed. 1979)). Finding the first definition "unex- ceptionable" but the latter ambiguous, the Court wrote:

Any ambiguity, however, is removed by read- ing the phrase in the context of the sentence in which it appears:  "A reasonable doubt is an actual and substantial doubt . .   **64   . as distinguished from a doubt arising from mere possibility, from mere imagination, or from fanciful conjecture." This explicit distinction between  a  substantial  doubt  and  a  fanciful conjecture  was  not  present  in  the  Cage  in-

struction.

Id. at 1250.

We find the challenged portion of the jury instructions in this case to be essentially the same as that in Victor. Here, the judge told the jury:

Reasonable  doubt  does  not  mean  a  vague, speculative or whimsical doubt, nor a mere possible doubt,  but a substantial doubt and such  a  doubt  as  intelligent,  reasonable  and impartial men and women may honestly en- tertain after a careful and conscientious con- sideration of the evidence in the case.

Bailey JA at 168-69. Thus, just as the Victor instruction contrasted a "substantial doubt" with "a doubt arising from a mere possibility, from bare imagination, or from fanciful conjecture," the instruction here contrasted a "substantial doubt" with "a mere possible doubt," "a vague, specula- tive" doubt, and a "whimsical doubt."

It is true that the Supreme Court in Victor went on to observe that "in any event," the instruction in that case provided an accurate,   **65    "alternative definition of reasonable doubt, a doubt that would cause a reasonable person to hesitate to act." 114 S. Ct. at 1250. However, as Supreme Court's use of the phrase "in any event" sug- gests,  we  do  not  interpret  the  Court's  opinion  to  mean that this alternative definition was essential to its holding. Accordingly, we believe that Victor supports the consti- tutionality of the   *758    challenged instruction in this case and, in any event, clearly shows that it did not result in a fundamental miscarriage of justice.

B. Penalty Phase. Bailey contends that his death sen- tences should be overturned for two reasons in addition to those discussed in Parts II and III of this opinion.

1. First,  Bailey argues that certain statements made by  the  prosecutors  during  opening  and  closing  argu- ments  at  the  penalty  hearing  violated  his  right  to  due process. However, Bailey's attorneys did not object to any of these comments,  and his argument concerning these remarks was held in the state post-conviction proceed- ings to be barred for procedural default under state law. Although  Bailey  contends  that  his  attorneys'  failure  to object amounted to constitutionally ineffective assistance and thus established **66    "cause" for the procedural default, we agree with the district court,  for essentially the same reasons explained in that court's opinion,  that Bailey did not satisfy either prong of the Strickland test and that federal habeas review of this claim is therefore barred. See 855 F. Supp. at 1406.

68 F.3d 736, *758; 1995 U.S. App. LEXIS 29678, **66

Page 18

2. Second, Bailey maintains that the trial court vio- lated  his  constitutional  rights  by  instructing  the  jury  at the  penalty  phase  that,  by  virtue  of  its  verdicts  finding Bailey guilty of the first-degree murders of Gilbert and Clara Lambertson, it had already found the existence of one of the statutory aggravating circumstances -- engag- ing in a "course of conduct that  resulted in the deaths of

2 or more persons where the deaths are a probable con- sequence of the defendant's conduct." Del. Code Ann. tit.

11, § 4209 (e)(1)k. Relying on Arizona v. Rumsey, 467

U.S. 203, 81 L. Ed. 2d 164, 104 S. Ct. 2305 (1984), Bailey argues that "a penalty hearing is 'like a trial' on the issue of punishment." Bailey's Br. at 70. Bailey then notes that due process prohibits the use of conclusive presumptions at a trial, see Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979), and he likens the judge's instruction to a conclusive presumption.   **67   He con- sequently argues that the court's instruction violated due process.

We see no merit in this argument. The guilt and penalty phases of a capital trial are parts of a single proceeding, and  there  is  no  constitutional  requirement  that  they  be treated as if they were two entirely separate trials. The Supreme Court has held that a state may constitutionally employ a plan that provides for the same jury to sit in both the guilt and penalty phases of a capital murder trial. See Lockhart v. McCree, 476 U.S. 162, 180-81, 90 L. Ed. 2d

137, 106 S. Ct. 1758 (1986); Gregg v. Georgia, 428 U.S.

153, 160, 163, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976)

(opinion  of  Stewart,  Powell,  and  Stevens,  J.J.).  When such a plan is used, evidence that is admitted at the guilt phase may be considered by the jury at the penalty phase. Lockhart, 476 U.S. at 180-81. Furthermore, the finding of a statutory aggravating circumstance may occur either at the guilt or penalty phase. See Tuilaepa, 114 S. Ct. at 2634

("We have indicated that the trier of fact must . . . find one

'aggravating circumstance' (or its equivalent) at either the guilt or penalty phase."); Lowenfield v. Phelps, 484 U.S.

231, 244-46, 98 L. Ed. 2d 568, 108 S. Ct. 546 (1988). We  therefore  see  no  federal  constitutional  error   **68  in the trial court's instructing the jury that its verdicts at the guilt phase (finding that Bailey had murdered Gilbert and Clara Lambertson) had already established the exis- tence of one statutory aggravating circumstance (that his conduct had "resulted in the deaths of 2 or more persons where the deaths were  the probable consequence of the defendant's conduct").

In any event, even if this instruction were erroneous, the error would be harmless. n26 Since the jury had just found Bailey   *759    guilty of intentionally killing the two Lambertsons, there can be no reasonable doubt that, even if the challenged instruction had not been given, the jury would have found at the penalty phase that Bailey had

engaged in conduct that caused the deaths of two people and that these deaths were the probable consequences of his conduct. n27

n26 In an effort to suggest that the jury might not have found the existence of this statutory ag- gravating  circumstance  were  it  not  for  the  chal- lenged instruction, Bailey points out that the jury sent  a  note  to  the  trial  judge  during  its  delibera- tions stating that it was "troubled somewhat with the  word  'probable'  in  the  third  statutory  aggra- vating circumstance listed in the  charge." Bailey JA  at  200(A).  Bailey  seems  to  suggest  that  this note  revealed  that  the  jury  was  not  sure  whether the  deaths  of  the  Lambertsons  were  the  "proba- ble" consequence of Bailey's conduct. This sugges- tion, however, appears far-fetched. Since the same jury had found in the verdicts returned on Friday, February  22,  1980,  that  Bailey  had  intentionally killed the Lambertsons, it is hard to see how the jury could doubt on Monday, February 25, 1980, when the note was sent to the judge, that the Lambertsons' deaths were the probable consequences of Bailey's conduct.

There is a far more likely explanation for the jury's  note:   the  jury  may  not  have  understood that  the  probability  standard  set  out  in  the  statu- tory aggravating circumstance was merely the min- imum necessary. In other words, since the evidence showed that Bailey shot both Lambertsons multiple times at close range with a shotgun and pistol and since the jury had already found that he intended to kill them, the jury may not have completely un- derstood that the probability standard in the statu- tory aggravating circumstance could be satisfied by proof that the Lambertsons' deaths were not merely the probable consequences of Bailey's conduct but the  intended  and  almost  certain  consequences  of those actions. Accordingly, we are convinced that any error was harmless.

**69

n27  In  a  habeas  proceeding,  the  appropriate harmless error standard is "whether the error 'had substantial and injurious effect or influence in deter- mining the jury's verdict.'" Brecht v. Abrahamson,

123 L. Ed. 2d 353, 113 S. Ct. 1710, 1722 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750,

776, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)). See also O'Neal v. McAninch, 130 L. Ed. 2d 947, 115

S. Ct. 992 (1995). That standard was plainly met here.

68 F.3d 736, *759; 1995 U.S. App. LEXIS 29678, **69

Page 19

V.

In  summary,  we  reject  Bailey's  and  Flamer's  argu- ments concerning the references in the jury instructions and  interrogatories  to  certain  vague  or  duplicative  ag- gravating  circumstances.  We  also  reject  all  of  Bailey's remaining arguments. Accordingly, the orders of the dis- trict court denying the petitions for writs of habeas corpus will be affirmed in both cases.

APPENDIX A

Flamer Jury Instructions (Flamer JA at 1460-65)

I shall instruct you as to the applicable principles of law governing the punishment to be imposed in this case. No single one of these instructions states all of the law applicable to this determination. Therefore,  you should listen to and consider all the instructions together.   **70  You are to apply the law to these facts and in this way decide the punishment to be imposed in the case.

The criminal code says as follows:  "Upon a convic- tion  of  guilt  of  a  defendant  of  first  degree  murder,  the Superior Court shall conduct a separate hearing to deter- mine whether the defendant shall be sentenced to death or to life imprisonment without benefit of probation or parole.

"A sentence of death shall not be imposed until the jury finds:

"1. Beyond a reasonable doubt at least one statutory aggravating circumstance; and

"2. Unanimously recommend, after weighing all rel- evant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the com- mission  of  the  offense  and  the  character  and  propensi- ties of the offender, that a sentence of death be imposed. Where the jury submits such a finding and recommen- dation,  the  Court  will  sentence  the  defendant  to  death. A finding by the jury of a statutory aggravating circum- stance, and a consequent recommendation of death, sup- ported by the evidence, shall be binding on the Court."

The Delaware law specifies certain statutory aggra- vating circumstances which the State may contend exist in  a  particular   **71    case.  The  law  does  not  specify mitigating circumstances, but the defense may offer ev- idence relating to any mitigating circumstances which it contends exist in a particular case. The State may like- wise  offer  matters  in  aggravation  besides  the  statutory aggravating circumstances.

An aggravating circumstance is a factor which tends to make the defendant's conduct more serious, or the im-

position of a penalty   *760   of death appropriate. A mit- igating circumstance is any factor which tends to make the defendant's conduct less serious, or the imposition of a penalty of death inappropriate.

In this case the State contends that the following four statutory aggravating circumstances exist:

1.  The  murder  was  committed  while  the  defendant was engaged in the commission of robbery.

2. The defendant's course of conduct resulted in the deaths  of  two  or  more  persons  where  the  deaths  are  a probable consequence of the defendant's conduct.

3. The murders were outrageously or wantonly vile, horrible or inhuman.

4. The murders were committed for pecuniary gain. You  cannot  recommend  that  this  defendant  be  sen- tenced to death unless you find beyond a reasonable doubt that  at  least  one  statutory  aggravating   **72    circum-

stance exists.

In this regard an applicable portion of the Delaware law  provides  that  in  any  case  where  the  defendant  has been convicted of murder in the first degree in violation of 11 Delaware Code, Section 636(a)(2) that conviction shall  establish  the  existence  of  a  statutory  aggravating circumstance.

In this case the defendant has been convicted of vio- lating 11 Delaware Code, Section 636(a)(2) which reads:

"Murder in the first degree. A person is guilty of murder in the first degree when in the course of and in furtherance of the commission of a felony, he recklessly causes the death of another person."

Therefore,  that  statutory  aggravating  circumstances has been established beyond a reasonable doubt, and you are so instructed.

The law provides that a sentence of death shall not be imposed unless you find beyond a reasonable doubt at least one statutory aggravating circumstance and unani- mously recommend, after weighing all relevant evidence in aggravation, including but not limited to the statutory aggravating circumstance or circumstances that you have already found to exist, and mitigation which bears upon the particular circumstances or details of the commission of **73   the offense and the character and propensities of the offender, that a sentence of death be imposed. You are to weigh any mitigating factors against the aggravating factors to determine the penalty.

If  you  have  a  reasonable  doubt  about  the  existence of any statutory aggravating circumstance, you must give the defendant the benefit of that reasonable doubt and find

68 F.3d 736, *760; 1995 U.S. App. LEXIS 29678, **73

Page 20

that the statutory aggravating circumstance does not exist. I would remind you a reasonable doubt means a doubt based  upon  good  and  sufficient  reasons  and  common

sense.

Your unanimous recommendation for the imposition of the death penalty, if supported by the evidence, is bind- ing  on  the  Court.  Similarly,  if  you  are  not  unanimous in your recommendation to impose the death penalty, or you cannot agree unanimously as to your recommenda- tions, then the Court is bound to impose a sentence of life imprisonment without benefit of probation or parole.

In conclusion,  a sentence of death shall not be im- posed unless you, the jury, find beyond a reasonable doubt at least one statutory aggravating circumstance has been established and unanimously recommend a sentence of death be imposed after weighing all relevant evidence in aggravation **74   and mitigation which bear upon the particular  circumstances  and  details  of  the  commission of the offense and the character and propensities of the offender.

Should you fail to agree unanimously to either of these two matters, the Court shall sentence the defendant to life imprisonment without benefit of probation or parole.

As  I  have  previously  instructed,  you  have  found  a statutory aggravating circumstance by returning verdicts of guilty of murder in the first degree in violation of 11

Delaware Code, Section 636(a)(2), recklessly causing the death during commission of a felony.   *761   You will be given a written interrogatory on which to indicate if you find any additional statutory aggravating circumstance. If you do not unanimously find beyond a reasonable doubt the existence of any additional aggravating circumstance, you should indicate accordingly.

You  will  next  indicate  on  the  written  interrogatory that will be given to you whether the jury unanimously recommends that a death sentence be imposed.

If you recommend the death penalty, you will then indicate on the written interrogatory which statutory aggravating circumstance or circumstances, including the violation of 11

Delaware **75    Code,  Section 636(a)(2), you relied upon in reaching your decision.

APPENDIX B

Flamer Jury Interrogatories (Flamer Rec. at 30)

1.  Does  the  jury  unanimously  find  that  the  follow- ing statutory aggravating circumstance or circumstances exist?

(a)  The  defendant's  course  of  conduct  re-

sulted in the deaths of two or more persons where the deaths are a probable consequence of the defendant's conduct?

Yes x No

(b)  The  murder  was  outrageously  or  wan- tonly vile, horrible or inhuman?

Yes x No

(c) The murder was committed for pecuniary gain?

Yes x No

2. Does the jury unanimously recommend that a sentence of death be imposed:

Yes x No.

3.  If  the  jury  unanimously  recommends  that  a  sen- tence of death be imposed, please indicate which statutory aggravating  circumstance  or  circumstances  were  relied upon:

(a) The murder was committed while the de- fendant was engaged in the commission of a robbery.

Yes x No

(b)  The  defendant's  course  of  conduct  re- sulted in the deaths of two or more persons where the deaths are a probable consequence of the defendant's conduct.

Yes x No

(c)   **76   The murder was outrageously or wantonly vile, horrible or inhuman.

Yes x No

(d) The murder was committed for pecuniary gain.

Yes x No

*762   APPENDIX C

Bailey Jury Instructions (Bailey Tr. of 2/25/1980 at

270-75)

I shall now instruct you as to the applicable principles of law governing the punishment to be imposed in this case. No single one of these instructions states all of the law applicable to this determination; therefore you must listen to and consider all of these instructions together. You  are  to  apply  the  law  to  the  facts  and  in  this  way

68 F.3d 736, *762; 1995 U.S. App. LEXIS 29678, **76

Page 21

decide the punishment to be imposed in the case. The criminal code provides as follows:

"Upon  a  conviction  of  guilt  of  a  defendant  of  first degree murder, the Superior Court shall conduct a sepa- rate hearing to determine whether the defendant should be sentenced to death or to life imprisonment without benefit of probation or parole or any other reduction.

"A sentence of death shall not be imposed unless the jury finds:

"1. Beyond a reasonable doubt at least one statutory aggravating circumstance; and,

"2. Unanimously recommend, after weighing all rel- evant evidence in aggravation or mitigation which **77  bears upon the particular circumstances or details of the commission of the offense and the character and propen- sities of the offender, that a sentence of death be imposed. Where the jury submits such a finding and recommen- dation, the Court shall sentence the defendant to death. A finding by the jury of a statutory aggravating circum- stance, and a consequent recommendation of death sup- ported by the evidence, shall be binding on the Court."

The Delaware law specifies certain statutory aggra- vating circumstances which the State may contend exist in a particular case. The law does not specify mitigating circumstances, but the defense may offer evidence relat- ing to mitigating circumstances which it contends exist in a particular case. The State may likewise offer matters in aggravation besides the statutory aggravating circum- stances.

An aggravating circumstance is a factor which tends to make the defendant's conduct more serious or the im- position of a penalty of death appropriate. A mitigating circumstance is any factor which tends to make the defen- dant's conduct less serious or the imposition of a penalty of death inappropriate.

In  this  case,  the  State  contends  the  following  four statutory **78   aggravating circumstances exist:

1. The murders were committed by one who had es- caped from a place of confinement.

2. The murders were committed while the defendant was engaged in flight after committing robbery.

3. The defendant's course of conduct resulted in the deaths of two persons where the deaths were a probable consequence of the defendant's conduct.

4. The murders were outrageously or wantonly vile, horrible or inhuman.

You cannot recommend this defendant be sentenced

to death unless you find beyond a reasonable doubt that at least one statutory aggravating circumstance exists.

You  have  already  convicted  the  defendant  of  caus- ing the death of two persons; therefore, that aggravating circumstance has been established beyond a reasonable doubt and you are so instructed.

The law provides that a sentence of death shall not be imposed unless you find beyond a reasonable doubt at least one statutory aggravating circumstance and unani- mously recommend, after weighing all relevant evidence in aggravation and mitigation which bears upon the par- ticular circumstances or details of the commission of the offense and the character and propensities of the offender that  a  sentence  of   **79    death  be  imposed.  You  are to weigh any mitigating factors against the aggravating factors to determine the penalty.

If  you  have  a  reasonable  doubt  about  the  existence of any statutory aggravating circumstance, you must give the defendant the benefit of that reasonable doubt and find that   *763   that statutory aggravating circumstance does not exist.

I would remind you that reasonable  doubt means a doubt based upon good and sufficient reason and com- mon sense.

Your unanimous recommendation for the imposition of the death penalty, if supported by the evidence, is bind- ing  on  the  Court.  Similarly,  if  you  are  not  unanimous in your recommendation to impose the death penalty, or you cannot agree unanimously as to your recommenda- tion, then the Court is bound to impose a sentence of life imprisonment without benefit of probation or parole.

In conclusion,  a sentence of death shall not be im- posed unless, the jury, find:

1. Beyond a reasonable doubt at least one statutory aggravating circumstance has been established; and

2. Unanimously recommend that a sentence of death be  imposed  after  weighing  all  relevant  evidence  in  ag- gravation and mitigation which bear upon the particular circumstances and **80    details of the commission of the offense and the character and propensities of the of- fender.

Should you fail to agree unanimously to either of those two matters, the Court shall sentence the defendant to life imprisonment without benefit of probation or parole.

As  I  have  previously  instructed,  you  have  found  a statutory aggravating circumstance by returning verdicts of guilty of causing the death of two persons. You will be given a written interrogatory on which to indicate if you find any statutory aggravating circumstances. If you

68 F.3d 736, *763; 1995 U.S. App. LEXIS 29678, **80

Page 22

do not unanimously find beyond a reasonable doubt the existence  of  any  aggravating  circumstance,  you  should indicate accordingly.

If you find one or more aggravating circumstance, you should next indicate on the written interrogatory that will be  given  to  you  whether  the  jury  unanimously  recom- mends that the death sentence be imposed.

If you recommend the death penalty,  you will then indicate on the written interrogatory which statutory ag- gravating  circumstance  or  circumstances,  including  the one found by your verdict, you relied upon in reaching your decision.

APPENDIX D

Bailey Jury Interrogatories (Bailey JA at 241-42)

1.  Does  the  jury  unanimously   **81    find  that  the following statutory aggravating circumstance or circum- stances exist?

(a) The murders were committed by one who had escaped from a place of confinement?

Yes x No

(b) The murders were committed while the defendant was engaged in flight after com- mitting Robbery?

Yes x No

(c)  The  defendant's  course  of  conduct  re- sulted  in  the  deaths  of  two  persons  where the deaths were a probable consequence of the defendant's conduct?

Yes x No

(d) The murders were outrageously or wan- tonly vile, horrible or inhuman?

Yes          No

2. Does the jury unanimously recommend that a sen- tence of death be imposed?

*764   Yes             No

3. If the jury unanimously recommends that a sentence of death be imposed, plese sic  indicate which statutory aggravating  circumstance  or  circumstances  were  relied upon.

(a) The murders were committed by one who had escaped from a place of confinement.

Yes          No

(b) The murders were committed while the defendant was engaged in flight after committing Robbery.

Yes          No.

(c)  The  defendant's  course  of  conduct  re- sulted in the deaths of two persons where the deaths **82   were a probable consequence of the defendant's conduct.

Yes x No

(d) The murders were outrageously or wan- tonly vile, horrible or inhuman.

Yes x No

DISSENTBY: LEWIS; SAROKIN

DISSENT: LEWIS, Circuit Judge, dissenting.

As the cases before us in these appeals make abun- dantly clear, the death penalty has become the source of an  increasingly  vast  and  enormously  complex  body  of constitutional law, posing issues which often defy clear or even sound resolution. Likewise, the immense implica- tions that are at the core of our effort to correctly resolve these issues simply cannot be overstated. Both Bailey and Flamer raise profound and difficult questions about the application  of  Delaware's  capital  sentencing  scheme  to their cases. Because I cannot agree with the resolution of these issues by the majority of my colleagues, I respect- fully dissent.

To begin, I agree with the majority that the plain lan- guage of the Delaware capital sentencing scheme suggests that it is a "non-weighing" scheme, n28 and that under the Delaware statute, the sentencing body may weigh all relevant evidence in aggravation and mitigation. See Del. Code.  Ann.  tit.  11,  §  4209(d)(1).  I  agree   **83    with petitioners,  however,  that jury interrogatory #3 and the corresponding  portion  of  the  jury  instructions     *765  converted the Delaware sentencing scheme,  as applied, into a "de facto" weighing scheme. n29

n28 Although the majority apparently believes that it is crystal clear from the statute's plain lan- guage that Delaware's capital sentencing scheme is

"non-weighing", a close examination of Delaware Supreme Court case law itself contradicts this view. In Whalen v. State, 434 A.2d 1346 (Del. 1980), Frank Cole Whalen Jr. was tried, convicted and sen- tenced to death on charges of first degree murder, burglary  and  rape.  At  Whalen's  sentencing  hear- ing the jury was instructed to consider as statutory

68 F.3d 736, *765; 1995 U.S. App. LEXIS 29678, **83

Page 23

aggravating circumstances, the fact that the victim was  "elderly"  and  "defenseless".  On  appeal,  cit- ing State v. White, 395 A.2d 1082 (Del. 1978), in which the Delaware Supreme Court had held that the "elderly" and "defenseless" statutory aggravat- ing were unconstitutionally vague, Whalen argued that  he  was  entitled  to  a  new  sentencing  hearing on the ground that the jury had considered invalid statutory  aggravating  circumstances  in  determin- ing  his  sentence.  In  granting  Whalen  relief,  the Delaware  Supreme  Court  reasoned  that  although

"the  defendant  was  found  guilty  of  rape,  itself  a statutory aggravating circumstance, we are not pre- pared to assume the defendant was not prejudiced by this error", a conclusion that could not have been reached under a "non-weighing" statute.

The ruling in Whalen necessarily implies that at a previous point in time the Supreme Court of Delaware treated its capital sentencing scheme as

"weighing". It is, then, at best curious, and at worst flat-out  anomalous,  that  the  supreme  court's  rul- ing  in  Flamer  v.  State,  490  A.2d  104,  131-136

(Del. 1983), proclaiming that Delaware's statute is

"non-weighing,"  made  no  mention  of  overruling Whalen and did not attempt to reconcile the two cases. As a result, although it now may be the case that Delaware's statute is "non-weighing," that has not always clearly been the case.

**84

n29 For convenience and consistency, I too, will use the term "interrogatory #3" to refer to both the interrogatory itself and corresponding instructions.

It is, perhaps,  of even greater importance, however, that the differences between "non-weighing" and "weigh- ing" capital sentencing schemes are not restricted to the scope of evidence a jury is entitled to rely upon during the penalty phase of a capital trial. As I discuss in greater detail below, and as the majority explicitly acknowledges, these differences extend to affect the standard of review that courts apply when determining the constitutionality of a death sentence. It is this latter point which renders the correct resolution of the "character" of the sentencing regime at issue in these cases of such profound constitu- tional and practical significance.

I gather that the majority and I agree that the chief culprit  lurking  behind  the  issues  we  must  address  may be singled out and identified as the now infamous inter- rogatory  #3.  Interrogatory  #3,  in  my  view,  mistakenly suggested  to  the  juries  that  at  the  selection  stage,  they

were required **85   to weigh statutory aggravating fac- tors against any mitigating evidence, and that they could not  impose  a  death  sentence  without  relying  upon  one or  more  of  those  factors.  I  believe  that  by  suggesting such a limitation, interrogatory #3 injected into the sen- tencing process a "weighing" aspect, thereby transform- ing Delaware's statutory "non-weighing" scheme into a

"weighing" scheme as applied.

The majority suggests that "the worst that can fairly be said of the wording of interrogatory #3  is that it might be read to suggest that the jury could not recommend a death sentence unless it relied, at least in part, on a statu- tory aggravating circumstance." Maj. Op. typescript at 36. The majority continues:

Even  if  .  .  .  the  juries  had  been  left  with the mistaken belief that they could consider only the statutory aggravating circumstances at the selection step, we are at a loss to un- derstand how this could have materially prej- udiced  these  defendants.  It  is  not  claimed that interrogatory #3 restricted the juries in their consideration  of any evidence  in mit- igation,  i.e.,  any  evidence  that  might  have been helpful to the defendants. . . . It simply makes no sense to argue **86    that death sentences should be overturned because the juries were unduly restricted in their consid- eration of the evidence militating in favor of the death penalty.

Id. typescript at 38. The majority's inability to understand how the juries' mistaken belief could have prejudiced the defendants flows directly from what I perceive as its mis- understanding  of  the  primary  issue  before  us.  It  is  not hard  to  see  how  such  a  misunderstanding  could  occur. Unfortunately  (considering  what  is  at  stake),  this  area of  the  law  is  replete  with  nuances  which  require  us  to reach conclusions based upon inferences, and the appro- priate analytical formulae shift depending upon how these underlying issues are perceived. Regrettably, as I will dis- cuss later,  neither the Supreme Court nor,  in this case, the Delaware Supreme Court, have provided much help- ful guidance. Yet achieving a proper understanding of the most fundamental issues here is critical, because the dif- ferences in the resulting analyses are, as I have said, of both constitutional and practical significance.

The primary issue we must address is not, as the ma- jority  suggests,  whether  interrogatory  #3  prevented  the consideration  of  constitutionally   **87        relevant  evi- dence, or whether it permitted the consideration of con- stitutionally  impermissible  evidence.  Rather,  the  issue before  us  is  whether  interrogatory  #3  transformed  the

68 F.3d 736, *765; 1995 U.S. App. LEXIS 29678, **87

Page 24

Delaware  capital  sentencing  scheme  into  a  "weighing" scheme, thereby signalling that the analytical framework under which these cases should be reviewed is the one set forth in Clemons v. Mississippi, 494 U.S. 738, 108 L. Ed. 2d 725, 110 S. Ct. 1441 (1990); or whether Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733

(1983), provides the pertinent standard for deciding if the death sentences in these cases were rendered unconsti- tutional by the consideration   *766   of constitutionally invalid statutory aggravating factors. n30

n30  As  the  majority  notes,  the  juries  in  both cases considered an unconstitutionally vague statu- tory aggravating circumstance, i.e., that "the mur- der  was  outrageously  or  wantonly  vile,   horri- ble,  or  inhuman."  See  Del.  Code  Ann.  tit.  11,  §

4209(e)(1)n.

Determining whether Clemons or Zant provides the proper lens through which to view these cases is nothing

**88  less than crucial because, as the majority acknowl- edges, under Clemons, if the jury in a "weighing" state re- lies upon one or more invalid statutory aggravating factors at the selection stage, "the  death sentences cannot stand unless there is a judicial reweighing of the evidence with- out consideration of the invalid circumstances," Stringer v.  Black,  503  U.S.  222,  112  S.  Ct.  1130,  117  L.  Ed.

2d 367 (1992); Clemons, 494 U.S. at 744-45. In "non- weighing"  states,  however,  where  the  role  of  statutory aggravating factors is to "circumscribe the class of per- sons  eligible  for  the  death  penalty,"  Zant,  462  U.S.  at

878,  a  death  sentence  will  not  be  disturbed  so  long  as one valid statutory aggravating factor remains. See id. at

873-74.  In  other  words,  the  correct  characterization  of the statutory scheme, under the unique circumstances of these cases, determines the appropriate standard of review which, in turn, has a direct bearing upon both the nature and  the  degree  of  relief  to  which  the  petitioners  might be entitled, if any. Accordingly, a full appreciation of the differences between my view and that of the majority in these cases requires, first and foremost, an understanding of the distinctions --   **89   some, subtle; some, explicit; all, significant-between "non-weighing" and "weighing" capital sentencing schemes. And while the majority ad- dresses these distinctions, I believe that they merit further discussion because of their importance to these cases. Courts  have  cited  a  variety  of  factors  in  attempt- ing to explain the differences between "non-weighing" and "weighing" capital sentencing schemes, n31 many of which fail to capture the true distinctions between these two types of statutes. For example, the Delaware Supreme Court itself has reasoned that its statute is "non-weighing"

because although:

the  jury  .  .  .  is  told  to  weigh  and  consider certain circumstances, the fact that they are not  told  how  to  weigh  them  and  that  this

"weighing" occurs at the discretionary stage, renders defendant's argument that Delaware is a weighing state  meaningless.

Flamer v. State, 490 A.2d 104, 131-36 (Del. 1983). With all due respect, the Delaware Supreme Court's explana- tion of why its statute is "non-weighing" does not ade- quately address the most important distinction between these  types  of  schemes.  n32  In  fact,  the  fundamental difference  between  a  "non-weighing"  and  "weighing"

**90    statute  is  that  under  the  former,  the  jury  is  al- lowed to consider in aggravation any evidence presented during  the  guilt  or  sentencing  phases  of  the  trial.  As  a result, in a "non-weighing" state, statutorily enumerated aggravating factors do not play a specific role in the jury's punishment determination. Put differently, the jury in a

"non-weighing" state is not required -- and, indeed, is not permitted-- to weigh statutory aggravating factors as such in deciding whether to impose the death penalty. They are, however, free to consider the underlying facts that consti- tute the statutory aggravating factors. By contrast, under a

"weighing" scheme, the jury can only consider statutorily enumerated aggravating factors in making its sentencing determination.

n31 See Williams v. Calderon,  52 F.3d 1465,

1477 n.13 (9th Cir. 1995) (discussing the varying factors courts rely upon to differentiate "weighing" from "non-weighing" capital sentencing schemes.) n32 The difference between a "non-weighing" and "weighing" statutory scheme is not primarily based on "how" the jury is told to weigh the ev- idence,  but rather "what" evidence the jury is al-

lowed to consider.

**91

In             practice,                                    therefore,                                  the                           "non- weighing"/"weighing"                         distinction                 logically                                and conceptually         is              better                       understood            as               a             "non- limiting"/"limiting"                                distinction;            that          is,               what differentiates   a   "non-weighing"   from   a   "weighing" statutory   scheme   is   not   what   weight   is   placed   on aggravating circumstances, but rather whether the jury is limited to considering only statutory aggravating   *767  factors  in  deciding  whether  to  impose  a  sentence  of death.

It  is  essential  to  keep  in  mind  that  the  reason  why appellate scrutiny of the import and effect of invalid ag-

68 F.3d 736, *767; 1995 U.S. App. LEXIS 29678, **91

Page 25

gravating  factors  under  the  two  schemes  is  different  is because of the distinctly dissimilar roles that aggravating factors play in "weighing" and "non-weighing" schemes. As I discussed earlier, in a "non-weighing" state, statu- tory aggravating factors " do  not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons . . . who are eligible for the death penalty." Zant, 462 U.S. at

873.

Because I believe that, through interrogatory #3, statu- tory  aggravating  circumstances  were  given  a  specific function in guiding the juries' discretion at the selection

**92    stage,  I  cannot  agree  with  the  majority's  con- clusion  that  the  Delaware  scheme,  as  applied  in  these cases, is "non-weighing." Indeed, the Supreme Court has recognized as a distinctive element of a "non-weighing" scheme that statutory aggravating circumstances as such have "no specific function in the jury's decision whether a defendant who has been found to be eligible for the death penalty should receive it." Stringer, 112 S. Ct. at 1136. n33

n33   Some   commentators   refer   to   "non- weighing"  schemes  as  "threshold  schemes,"  and have described the difference between "weighing" and "threshold" schemes as follows:

In  a  "threshold"  state,  the  sentencer has  complete  discretion  in  assessing a sentence once it has found that the defendant  passes  the  death  eligible threshold,  i.e.,  once it finds the exis- tence of a single aggravating circum- stance. In such a system, aggravating circumstances  perform  one  function: to set the death-eligible threshold. In contrast, aggravating circumstances in

"weighing"  states  perform  two  func- tions. Not only do they set the death- eligible threshold, they also guide the jury's  decision  beyond  that  point  in- sofar as they are weighed or balanced by the jury against mitigating circum- stances in order to arrive at a sentence.

John  H.  Blume  &  Stephen  P.  Garvey,  Harmless Error  in  Federal  Habeas  Corpus  After  Brecht  v. Abrahamson, 35 Wm. & Mary L. Rev. 163, 192-

93 (1993) (footnotes omitted).

**93

Although the majority acknowledges that interroga-

tory #3 is "potentially misleading and injects unnecessary confusion into the jury's deliberations," Maj. Op. type- script at        , and, in fact, "disaproves of the practice of a judge in a non-weighing state using a jury interrogatory that asks which statutory aggravating circumstances the jury 'relied upon' in recommending the death penalty," it fails, in my opinion, to appreciate the constitutional sig- nificance of requiring that statutory aggravating circum- stances play a role at the selection stage. The majority chooses to focus instead on (1) whether it is reasonably likely that interrogatory #3 mistakenly suggested to the ju- ries that, at the selection step, they could not rely on non- statutory aggravating circumstances but were limited to those aggravating circumstances set out in the Delaware statute, Maj. Op. typescript at 35-36, and (2) whether in- terrogatory #3 led the juries to give much greater weight or consideration to the facts underlying the invalid statu- tory  aggravating  circumstances  than  those  facts  would otherwise have received. Maj. Op. typescript at 40-41. I will address these two issues in turn.

I  note  initially  that   **94    these  cases  are  distin- guishable from Boyde v. California, 494 U.S. 370, 108

L. Ed. 2d 316,  110 S. Ct. 1190 (1990), relied upon by the  majority,  wherein  the  Supreme  Court  first  adopted the  "reasonable  likelihood"  standard  of  review  for  jury instructions. Consequently,  I am not convinced that the Boyde inquiry is relevant in these cases.

In Boyde the issue was whether "the challenged in- structions precluded consideration of relevant mitigating evidence offered by the petitioner." Boyde, 494 U.S. at

386. In subsequent cases,  the Boyde standard has been applied to determine "'whether there is reasonable likeli- hood that the jury applied the challenged instruction in a way' that violates the Constitution," Estelle v. McGuire,

502 U.S. 62, 116 L. Ed. 2d 385, 399, 112 S. Ct. 475 (1991)

(quoting Boyde, 494 U.S. at 380), and whether there was a  "reasonable  likelihood"  that  the  jury  understood  the charge to create an unconstitutional presumption.  Rock v. Zimmerman, 959 F.2d 1237, 1247 (3d Cir. 1992). I be- lieve the challenge to the jury instructions in these cases

*768  is unique. The petitioners here do not simply claim that interrogatory #3 was constitutionally impermissible; rather, they argue that interrogatory #3 injected into the

**95    capital sentencing process a "weighing" aspect, thereby requiring that appellate review be conducted un- der Clemons instead of Zant.

But even if I were to agree with the majority that the Boyde standard applies in these cases, the relevant inquiry would be whether there is a reasonable likelihood that the juries thought they were required to rely on one or more statutory aggravating circumstances in order to impose a sentence of death. Although I believe that there is a rea-

68 F.3d 736, *768; 1995 U.S. App. LEXIS 29678, **95

Page 26

sonable likelihood that interrogatory #3 led the juries to believe that they were required to rely only on statutory aggravating circumstances, I disagree with the majority that this finding is necessary in order to conclude that the Delaware statute as applied in these cases was weighing. To the contrary, if interrogatory #3 induced the juries into believing that they were required to rely on one or more statutory  aggravating  circumstances  in  order  to  recom- mend the death penalty,  that belief alone would suffice to  convert  Delaware's  facially  "non-weighing"  scheme into a "weighing" scheme as applied in these cases, be- cause the only logical conclusion is that they also believed they were required to **96   weigh those statutorily de- fined  aggravating  circumstances  against  any  mitigating evidence offered by petitioners.

That said,  I believe the clear inference to be drawn from the language of interrogatory #3 is that the death penalty  could  not  be  imposed  unless  the  juries  relied upon  one  or  more  statutory  aggravating  circumstances. Significantly, the juries were not asked to indicate which, if  any,   statutory  aggravating  circumstances  were  re- lied  upon  in  reaching  the  decision  to  recommend  the death  penalty.  They  were  specifically  instructed  to  "in- dicate which statutory aggravating circumstance or cir- cumstances  were  relied  upon."  See  Appendix  B,  in- fra,  at v;  Appendix D, infra,  at ix-x (emphasis added). Furthermore,  nothing  in  the  record  indicates  that  the judges in these cases ever told the juries that they were not required to rely on statutory aggravating circumstances. n34

n34 The majority suggests that to the extent that the juries may have felt confused by interrogatory

#3  and  possibly  conflicting  instructions  given  by the court, it was incumbent upon the juries to seek clarification. Maj. Op. typescript at 37.

I  would  point  out  that  in  capital  cases,  the Delaware Supreme Court has observed, quite ap- propriately, that "it is the trial judge's duty to guide the jury's discretion by ensuring that they under- stand the bases for imposing a death sentence, and comprehend their responsibilities in applying such criteria. It is only through the careful use of jury instructions that the judge properly discharges this function." Whalen v. State, 492 A.2d 552, 559 (Del.

1986).

More importantly, however, the record clearly reflects the fact that during deliberations in Bailey's case  the  jury  did  seek  clarification  from  the  trial judge regarding the "multiple death" statutory ag- gravating circumstance. In particular, the jury noted that it was "troubled somewhat with the word 'prob-

able',"  app.  at  200(a),  contained  in  the  statutory language.  In  replying  to  the  jury's  concerns,  the trial judge offered the following response:  "I . . . want to remind you that you needn't dwell on that

"multiple death"  circumstance too much because, as I have told you in the charge, you have already found that one to exist by virtue of your verdict .

. . ." Id. Undoubtedly, this "clarification" only in- creased the likelihood that the jury was misled into thinking that in the final, discretionary, imposition stage of its deliberations, it was required to rely on the  "multiple  death"  statutory  aggravating  factor, regardless of any confusion or doubts it might have had about this circumstance.

**97

In Bailey's case in particular, the potential for confu- sion as a result of this misleading instruction was exac- erbated by the fact that the State never argued to the jury that there were non-statutory aggravating factors relevant for purposes of sentencing. n35 And although the judge may have instructed the jury that the State was allowed to

"offer matters in aggravation besides statutory aggravat- ing circumstances", Appendix A, infra, at i., there is no indication in the record that the State ever argued that such evidence existed. The impact of the jury instructions, and interrogatory #3 in particular,  must be judged with this glaring omission in mind.

n35 As the majority points out, and I acknowl- edge, the prosecution in Flamer's case did urge the jury to consider non-statutory aggravating factors in its sentencing determination.

To more vividly demonstrate my point, I pose the fol- lowing hypothetical which I believe   *769    illustrates why the jurors in Bailey's case were very likely left with the  erroneous  impression   **98    that  they  only  could consider statutory aggravating factors in determining sen- tencing. Suppose that twelve laypersons are selected to act as an admissions committee for a university. As part of their orientation for the job, the group is required to at- tend a three-day training session where they are presented with large amounts of information relevant to the admis- sions process in general, and to their jobs as admissions officers in particular. Throughout the session,  however, the group instructor continuously places emphasis only on four admissions criteria:  (1) grades; (2) SAT scores;

(3) extracurricular activities; and (4) recommendations. At the final training session the group is told by their

instructor that anything that is relevant for the purposes of  evaluating  an  applicant  can  be  relied  upon  by  their

68 F.3d 736, *769; 1995 U.S. App. LEXIS 29678, **98

Page 27

committee, yet they are not given any specific indication of what factors other than grades, SAT scores, extracur- ricular activities and recommendations might qualify as relevant information, leaving these four factors as the only ones that specifically were identified. When the session ends, the committee is given a booklet that includes the training session information which **99   focuses on the four factors, and a checklist with the following instruc- tions:

Once you unanimously have agreed that an applicant should be admitted, please indicate on this written checklist the factor or factors you relied upon in deciding to admit the can- didate.

These instructions are then followed with a checklist of four options:

1. Grades

2. SAT Scores

3. Extracurricular Activities

4. Recommendations

In  my  opinion,  just  as  there  is  a  reasonable  likeli- hood that a member of our admissions committee could conclude that the only factors they could rely on in the admission process were the four set-out on the checklist, it is also quite likely that the jury in Bailey's case thought that  it  was  limited  to  considering  in  aggravation  only those statutory circumstances listed on interrogatory #3. Thus, because the jury in Bailey's case was given instruc- tions and interrogatories that reasonably could have lead it to deliberate as if operating under a "weighing" rather than "non-weighing" capital sentencing scheme, I believe Clemons provides the applicable standard of review. Although  I  acknowledge  that  juries  in  "weighing" states are **100    limited in their consideration of ag- gravating  evidence  to  those  aggravating  circumstances enumerated  in  the  statute,  i.e.,  those  factors  which  the legislature  deemed  relevant  to  the  sentencing  decision, I  do  not  believe,  as  the  majority  does,  that  unless  a jury is so limited, appellate scrutiny of the impact of in- valid aggravating factors must be conducted under Zant. Accordingly, even though the prosecution in Flamer's case urged the jury to consider non-statutory aggravating fac- tors in making its sentencing determination, in my view, Clemons still applies because the jury was also specif- ically  instructed  to  weigh --  and  in  fact  did  rely  on --

statutory aggravating circumstances.

The Supreme Court has never, to my knowledge, ex-

plicitly answered the question presented in these cases, namely, whether Clemons or Zant control when a death sentence  is  imposed  under  what  is  best  described  as  a

"hybrid" scheme --  one which consists of both "weigh- ing" and "non-weighing" characteristics. Again, because it is my belief that the introduction into the sentencing process of what I have referred to as a "weighing" aspect cannot be overlooked;  I do not believe that these cases should **101   be reviewed under Zant. Unlike Zant, in these cases, we know that a constitutionally invalid statu- tory aggravating factor was relied upon by the juries in recommending the death penalty;  that is, we know that it was weighed against the mitigating evidence. Because allowing the sentencer to consider "a vague aggravating factor in the weighing process creates the possibility not only of randomness but also of bias in favor of the death penalty," Stringer, 112 S. Ct. at 1139, we "may not as- sume it would have made no difference if the thumb had been   *770   removed from death's side of the scale." Id. at 1137.

Although I do not believe that Zant provides the ap- propriate analytical framework for review of these cases, I will briefly address the majority's analysis under Zant. Despite the majority's conclusion to the contrary, these cases are distinguishable from Zant because the issue here is not, as it was in Zant, whether the challenged instruc- tion  "caused  the  jury  to  give  somewhat  greater  weight

to the invalid statutory aggravating factors  than it oth- erwise would have given," Zant, 462 U.S. at 888. n36 In these cases, we are not dealing with the amount **102  of weight that should be given to particular aggravating evidence. Instead, we must determine whether impermis- sibly vague aggravating factors can, without violating the Constitution, be given a specific function at the selection stage. The question we confront is not one of weight or, as the majority suggests, whether the facts underlying the vague factor are admissible and proper for consideration, n37 but a question of whether a weighing aspect may per- missibly be injected at the imposition stage of a "non- weighing"  scheme.  This  distinction  may  appear  subtle, but  it  is  significant  because  it  directs  us  to  the  proper inquiry in these cases, i.e., whether interrogatory #3 in- duced the juries to believe that they were required to rely on a statutory aggravating factor in order to impose the death penalty.

n36  In  Zant,   the  Supreme  Court  upheld  a Georgia  death  sentence  imposed  under  a  "non- weighing"  scheme  and  agreed  with  the  Georgia Supreme Court that the "'mere fact that some of the aggravating circumstances were improperly desig- nated statutory' . . . did not place particular emphasis on the role of statutory aggravating circumstances

68 F.3d 736, *770; 1995 U.S. App. LEXIS 29678, **102

Page 28

in the jury's ultimate decision." Zant v. Stephens,

462 U.S. 862, 889, 77 L. Ed. 2d 235, 103 S. Ct. 2733

(1983). As a result, the Court concluded that any possible impact of the state's "aggravating factor" imprimatur on an otherwise admissible considera- tion "cannot fairly be regarded as a constitutional defect in the sentencing process." Id.

**103

n37  The  majority  insists  that  "even  if  the  ju- ries had believed that they could not consider non- statutory aggravating factors at the selection step, this would not naturally cause the juries to give the facts  underlying  the  invalid  statutory  aggravating circumstances any greater weight than those facts would  have  otherwise  received."  Maj.  Op.  type- script at 40. In its attempt to confine these cases within the parameters of Zant, the majority refuses to acknowledge that under a "weighing" scheme, the consideration of an invalid factor which, in turn, allows consideration of the circumstances support- ing the factor, permits the jury to include in its sen- tencing calculus evidence that could not have oth- erwise been considered. See Williams v. Calderon,

52 F.3d 1465, 1477 (9th Cir. 1995).

Because, as I have already stated, I believe that the clear inference to be drawn from interrogatory #3 (and the jury instructions as a whole) is that the juries could not  impose  a  death  sentence  without  relying  upon  one or  more  statutory  aggravating  factors,  it  is  my  opinion that  statutory  aggravating  factors   **104    served  both a  narrowing  and  a  weighing  function  in  these  cases.  I also  believe  that,  in  a  "non-weighing"  scheme,  once  a single statutory aggravating factor is found and the de- fendant is deemed death-eligible,  statutory aggravating circumstances are to play no role in guiding the jury's dis- cretion in reaching a sentencing determination. The fact that the statutory aggravating circumstances were given such a role in these cases leads me to the conclusion that petitioners'  sentences  were  imposed  in  violation  of  the Constitution.

Having concluded that the sentencing process in each of these cases contained a constitutional error, the ques- tion arises whether courts of appeal are required to con- duct a harmless error analysis. There is a split among the circuits as to whether a federal habeas court must con- duct a harmless error analysis when reviewing a capital sentencing proceeding that involved an invalid statutory aggravating circumstance. Compare Smith v. Dixon, 14

F.3d 956, 974-81 (4th Cir. 1994) (in banc) (holding that a federal habeas court must review constitutional errors

of  the  state  trial  and  sentencing  proceedings  for  harm- lessness) and Williams v. Clarke, 40 F.3d 1529,   **105

1539-40  (8th  Cir.  1994)  (same)  with  Wiley  v.  Puckett,

969 F.2d 86, 94 n.8 (5th Cir. 1992) (holding that federal courts  may  not  conduct  harmless  error  analysis  in  the context of invalid statutory aggravating circumstances in capital sentencing proceeding) and Dixon, 14 F.3d at 988-

93 (Sprouse, J. dissenting).

The  Supreme  Court  has  never  explicitly  authorized federal habeas courts to engage in the type of constitu- tional harmless error   *771   analysis that the Clemons Court authorized for capital sentencing proceedings. Nor has the Court foreclosed us from engaging in the analysis. Williams v. Clarke, 40 F.3d 1529, 1539 (8th Cir. 1994). The Court's opinions authorizing harmless error analysis to remedy constitutional errors resulting from the consid- eration of a vague sentencing factor expressly refer only to state appellate courts. See,  e.g.,  Richmond v. Lewis,

506  U.S.  40,  121  L.  Ed.  2d  411,  113  S.  Ct.  528,  535

(1992) ("Only constitutional harmless-error analysis or reweighing at the trial level suffices to guarantee that the defendant received an individualized sentence. Where the death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor,  the state ap- pellate **106   court or some other state sentencer must actually perform a new sentencing calculus,  if the sen- tence is to stand"); Stringer, 112 S. Ct. at 1140 (holding that "use of a vague or imprecise aggravating factor in the weighing process invalidates the sentence and at the very least requires constitutional harmless-error analysis or reweighing in the state judicial system").

But  the  Court  has  "made  plain  that  although  a  pe- titioner has demonstrated that his state trial was tainted with constitutional error, when the error is one that may be reviewed for harmlessness, a federal habeas court must not grant habeas relief unless the petitioner also demon- strates that the error 'had a substantial and injurious effect or influence in determining the jury's verdict.'" Dixon, 14

F.3d at 975 (quoting Brecht v. Abrahamson, 123 L. Ed.

2d 353, 113 S. Ct. 1710, 1722 (1993)). Thus, a federal habeas court must determine that the error that occurred in the sentencing proceeding was harmful before it may grant habeas relief.

Under the standard announced in Brecht, I believe that both Bailey and Flamer have met the burden of demon- strating that the constitutional errors which occurred dur- ing their sentencing **107   proceedings "had a substan- tial and injurious effect or influence in determining the jury's verdicts." Brecht,  113 S. Ct. at 1722. In Bailey's case, interrogatory #3 reveals that the jury actually relied on two statutory aggravating factors at the selection stage. One of those two factors is invalid, however, because it

68 F.3d 736, *771; 1995 U.S. App. LEXIS 29678, **107

Page 29

is unconstitutionally vague. In my opinion, it is reason- able to conclude that the jury may well have reached a different outcome if it had not relied upon the invalid ag- gravating factor. In other words, the invalid circumstance may well have been the factor that tipped the scale in fa- vor of death. Therefore, I am fairly certain that the error in Bailey's sentencing proceeding had a "substantial and injurious effect or influence in determining the jury's ver- dict." As a result of this "grave doubt", I am convinced that the error was not harmless. See O'Neal v. McAninch,

130 L. Ed. 2d 947, 115 S. Ct. 992, 994-95 (1995) ("When a federal judge in a habeas proceeding is in grave doubt about whether a trial error . . . had a 'substantial and inju- rious effect or influence in determining the jury's verdict,' that error is not harmless").

I reach the same conclusion with respect to Flamer,

**108   despite the fact that only one of the four statu- tory aggravating factors upon which the jury relied was invalid, because I believe that it may well have been the in- valid circumstance that tipped the scale in favor of death. Although the jury in Flamer's case indicated that it had relied on four statutory aggravating circumstances,  n38

I nevertheless have grave doubts as to whether the jury would have recommended the death penalty had the in- valid factor not been part of the equation. Significantly, two of the remaining valid statutory aggravating circum- stances -- that the murder was committed while the defen- dant was engaged in the commission of   *772   a robbery and that the murder was committed for pecuniary gain -- are, in my opinion, duplicative. Although the existence of the duplicative circumstances does not, itself, constitute constitutional error, I believe it is both proper and neces- sary to consider the impact of the duplication as part of a harmless error analysis conducted for the purpose of de- termining whether the jury would have recommended the death penalty had it not relied upon the unconstitutionally vague  and  invalid  aggravating  circumstance.  Because  I believe that the two duplicative **109    factors repre- sent a single aggravating factor and, as a result, that the jury actually relied only upon two valid statutory aggra- vating  factors,  I  am  convinced  that  the  error,  i.e.,  the consideration of a unconstitutionally vague aggravating circumstance,  had a "substantial and injurious effect or influence  in  determining  the  jury's  verdict."  Where  the number of statutory aggravating factors relied upon is so substantially diminished (in this case by 50 percent), not only may we not "assume it would have made no differ- ence  if  the  thumb  had  been  removed  from  death's  side of the scale," Stringer, 503 U.S. at 232, I believe we are compelled to concluded that the error was not harmless.

n38  The  four  statutory  aggravating  circum- stances  indicated  by  the  Flamer  jury  in  response

to interrogatory #3 were as follows:

(a) The murder was committed while the defendant was engaged in the com- mission of a robbery.

(b) The defendant's course of conduct resulted in the deaths of two or more persons

where the deaths are a probable con- sequence of the defendant's conduct.

(c)  The  murder  was  outrageously  or wantonly vile, horrible or inhuman.

(d) The murder was committed for pe- cuniary gain.

See Appendix B, supra, at v.

**110

For the reasons set forth above, I respectfully dissent. Although I have concluded that the errors in both tri- als were not harmless and would, accordingly, reverse the death sentences as to both Bailey and Flamer and remand for reweighing, the tortuous analytical route it has taken both the majority and me to set out our respective views in these cases compels me to add that I believe they per- fectly illustrate-perhaps epitomize --  why, in the words of Justice Blackmun,  we should "no longer tinker with the machinery of death." See Callins v. Collins, 127 L.

Ed. 2d 435, 114 S. Ct. 1127 (Blackmun, J., dissenting). To be sure,  Justice Blackmun was correct. I realize

that I sit on a court charged with the responsibility of ap- plying the law as it is interpreted by the Supreme Court, and in circumstances such as these, by the highest court of a state. That is precisely what the majority and I have sought to do, despite our disagreement. But there are times when it becomes appropriate for a judge to reflect upon the law that he or she is called upon to apply, and to ex- press views, genuine and unfeigned, that reveal a sincere and earnest belief. And in doing so here, I can only say that more than any **111   I have seen, these cases ex- emplify the extent to which death penalty jurisprudence has become so complex and theoretically abstract that the only way to try to understand the reasons for and impact of  its  many  subtle  distinctions  is  to  resort  to  carefully crafted hypotheticals. Something is terribly wrong when a body of law upon which we rely to determine who lives and  who  dies  can  no  longer,  in  reality,  reasonably  and logically be comprehended and applied; when, in exam-

68 F.3d 736, *772; 1995 U.S. App. LEXIS 29678, **111

Page 30

ining a statutory scheme and analyzing instructions and interrogatories, we are left to reach conclusions by piling nuance upon nuance;  when we cannot even agree upon the appropriate standard of review in cases in which lives hang in the balance. Yet this is how cluttered and confus- ing our nation's effort to exact the ultimate punishment has  become.  This  cannot  be  what  certain  fundamental principles  of  liberty  and  due  process  embodied  in  our Constitution, principles upon which I need not elaborate here, are all about.

It does not dilute my profound respect for the highest court  in  the  land,  an  admiration  and  honor  that  knows no bounds, to voice an apprehension, sincerely felt, that much  more  guidance  in  this  serious   **112              moral dilemma must be forthcoming. Elusive and complicated distinctions, replete with incomprehensible subtleties of the highest order, must not be the talisman that decides whether one should live or die. Until this guidance is forth- coming,  the  plaintive  voice  of  Justice  Blackmun,  truly crying in the wilderness, should continue to haunt and re- mind us that "the desired level of fairness has not  been achieved."

Joined by Judge Mansmann and Judge McKee. SAROKIN, Circuit Judge, dissenting.

I respectfully dissent.

Accepting that Delaware is a "non-weighing" state, I conclude that the instructions   *773    and interroga- tories  submitted  in  these  two  cases  shifted  the  neutral balance contemplated under the statute and with it,  the scales of justice as well. Rather than directing the con- sideration of all mitigating and aggravating factors in the final stage, each court focussed on aggravating circum- stances and enhanced their consideration by designating them as "statutory." The combination of these errors with the submission of a critical "statutory" factor deemed to be  unconstitutional  raises  such  errors  to  the  level  of  a constitutional defect.

It  may  be  that  because  of  the  evidence  presented

**113    in this case,  the jury would have imposed the death penalty in any event. However, it is impossible to determine the extent to which the courts' instructions in- fluenced the juries' determinations,  and whether the ju- ries would have imposed the death penalty absent those instructions  and  interrogatories.  This  being  the  death penalty --  the  ultimate  punishment-ambiguities  should be resolved in favor of the defendant, and the matter re- manded for reconsideration.

I.

Death  penalty  statutes  in  the  various  states  can  be divided into two separate categories. In so-called non-

weighing states, jurors in the sentencing phase of the trial must find beyond a reasonable doubt the presence of at least one of various aggravating factors specified in the statute. Once this threshold finding is made, the jury pro- ceeds to a discretionary stage where it can consider any aggravating factor as well as any mitigating factor. n39

In so-called weighing states, the threshold requirement is the same, but the jury at the discretionary stage is limited to consideration of the statutorily specified aggravating factors.

n39 The majority refers to this second stage as the "selection" step. Majority Opinion at 8. Because I find this term ambiguous, I use instead the term

"discretionary stage" throughout this dissent.

**114

The Supreme Court has devised bifurcated tracks for reviewing death penalty sentences in which the jury relied on unconstitutional statutory aggravating factors, distin- guishing between the two different types of statutes. In Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983), the Court held that consideration of an unconstitutional statutory factor in a non-weighing state, when other statutory factors were also found by the jury, does not warrant reversal. In Clemons v. Mississippi, 494

U.S. 738, 108 L. Ed. 2d 725, 110 S. Ct. 1441 (1990), the Court held that consideration of an unconstitutional statu- tory factor in a weighing state is cause for reversal, even if other statutory factors were found. The distinction upon which the Court relied was that in non-weighing states, the jury at the discretionary stage was entitled to consider any aggravating factor, not simply those articulated in the statute. Therefore, consideration of a statutory aggravat- ing factor deemed unconstitutional did not impermissibly broaden the range of aggravating evidence that the jury could consider.  Zant, 462 U.S. at 886 ("The underlying evidence is . . . fully admissible at the sentencing phase."). At most, it gave one factor more attention **115   than warranted by requiring consideration of that factor by the jury at the eligibility stage.  Id. at 888. But any prejudice that the defendant might suffer would be quite remote, in the Court's view, because no emphasis was placed on statutory factors at the discretionary stage.  Id. at 889.

In a weighing state, on the other hand, the jury's con- sideration of aggravating factors at the discretionary stage is limited to those enumerated by statute. Therefore, inclu- sion of an unconstitutional statutory factor at the discre- tionary stage broadens the range of aggravating factors that the  jury can consider  beyond what is constitution- ally permissible, since the extra aggravating factor might have been decisive in imposing the sentence of death. The Court held in Clemons that in those instances the sentence

68 F.3d 736, *773; 1995 U.S. App. LEXIS 29678, **115

Page 31

should be vacated and either remanded to the state appel- late court for reweighing or subjected to harmless error analysis.  494 U.S. at 741.

II.

The  juries  in  both  Bailey  and  Flamer  were  pre- sented  with  an  unconstitutional  statutory   *774    fac- tor, specifically, that "the murders were outrageously or wantonly  vile,  horrible  or  inhuman."  Majority  Opinion

("Maj. Op."), appendix **116    A at ii, appendix C at vii. However,  the situation in these two cases does not comport  with  the  weighing/non-weighing  analysis  that has evolved from Supreme Court jurisprudence. I do not dispute  the  majority's  determination  that  Delaware  is  a non-weighing  state,  Maj.  Op.  at  29;  however,  in  both Bailey and Flamer the instructions issued and interroga- tories submitted to the juries gave heightened significance to statutory aggravating factors at the discretionary stage, n40 and thus introduced a weighing dimension to those juries' considerations. The issue presented is, how are we to apply existing Supreme Court law in a hybrid case such as this?

n40 The majority does not actually dispute this claim,  though it falls short of endorsing it either. See Maj. Op. at 36 ("The worst that can fairly be said of the wording of this interrogatory question is that it might be read to suggest that the jury could not recommend a death sentence unless it relied, at least in part, on a statutory aggravating circum- stance."). However, it deems to "see no merit in this argument" at a later point in the opinion. Maj. Op. at 39.

Moreover, the majority focusses on the fact that the instructions and interrogatory did not preclude consideration of other aggravating circumstances, see  Maj.  Op.  at  35,  39-41,  and  that  accordingly Zant governs. Maj. Op. at 39. Because my dissent in no way relies on this question, I do not address the majority's claim.

**117

I do not think it appropriate to cram our case into one of the conceptual boxes designed by the Supreme Court. Neither fits precisely. Instead, we must step back and, as the Court did in Zant and Clemons, try to understand and predict how the instructions and interrogatories affected, or may have affected, the jury.

III.

First, I agree with the majority that the inclusion of an unconstitutional statutory factor at the eligibility stage, in and of itself, does not warrant reversal when other statu-

tory factors are present. Maj. Op. at 23. That is the clear mandate of Zant.

I further agree with the majority that neither Bailey nor Flamer was prejudiced by the mere consideration of the unconstitutional statutory factor at the discretionary stage. As the majority notes, the jury at that stage is en- titled to consider all factors either supporting or negating the imposition of death on the defendants. Maj. Op. at

38. In particular, the jury is entitled to take into account whether the murders were "outrageously or wantonly vile, horrible or inhuman."

The issue, however, is not whether the juries were en- titled to consider evidence of the vileness of Bailey's and Flamer's **118   acts. Rather, the issue is the weight that this factor played in the juries' deliberations because of the courts' instructions and interrogatories, and whether this compelled consideration of the statutory factors at the dis- cretionary stage may have unduly prejudiced Bailey and Flamer.

In both cases, Interrogatory #3 asked the jury to spec- ify upon which statutory factors it relied in reaching its verdict of death. By asking the jury to specify what statu- tory  aggravating  factors  it  took  into  consideration,  but not asking the jury a similar question regarding mitigat- ing factors, Interrogatory #3 focussed the jurors' attention on those very factors that would most likely lead them to  impose  the  death  penalty.  While  the  judges  in  both Bailey  and  Flamer  instructed  the  juries  that  they  could take into consideration "all relevant evidence in aggrava- tion or mitigation," Maj. Op., append. A at i, append. C. at vi, the instructions and interrogatory had the effect of signaling to the jury that when all was said and done, they should pay particular attention to certain considerations. In Bailey, these considerations were:  (1) whether, when committing the murders,  Bailey **119    "had escaped from a place of confinement";  (2) whether he "was en- gaged in flight after committing Robbery";  (3) whether his "course of conduct resulted in the deaths of two per- sons where the deaths were a probable consequence of the defendant's conduct"; and (4) whether "the murders were outrageously or wantonly vile, horrible or inhuman." Maj. Op., append. D at ix-x. In Flamer, the judge gave special

*775    salience  to  the  following  factors:   (1)  whether Flamer killed his victims while he "was engaged in the commission of a robbery"; (2) whether his "course of con- duct resulted in the deaths of two or more persons where the deaths are a probable consequence of the defendant's conduct"; (3) whether "the murders were outrageously or wantonly vile, horrible or inhuman"; and (4) whether "the murder was committed for pecuniary gain." Maj. Op., ap- pend B. at v. It is reasonable to conclude that Interrogatory

#3, by so directing the juries' attention, gave added weight

68 F.3d 736, *775; 1995 U.S. App. LEXIS 29678, **119

Page 32

to those aggravating factors articulated by the judges and diminished the juries' consideration of mitigating factors. Because in non-weighing states, "the finding of a statu- tory   aggravating  circumstance  does  not  play  any  role

**120   in guiding the sentencing body in the exercise of its discretion" beyond eligibility, Zant, 462 U.S. at 874, requiring that aggravating circumstances play such a role was error.

To understand the prejudice that the judges' instruc- tions may have caused,  it may be helpful to consider a different scenario:  imagine that, instead of Interrogatory

#3, the judge in Flamer had directed the jury to indicate which of the following factors they relied on in reaching their sentence:  Flamer's "dull normal" intelligence,  the role of the co-defendant, Andre Deputy, in the murders, Flamer's struggle with alcoholism, the reports of a psy- chologist and psychiatrist, and the testimony of Flamer's mother and grandmother. Joint Appendix 1482, 1486. It is not difficult to imagine the prosecution's outraged re- action to such an interrogatory, and the impact it might have  had  on  the  ultimate  sentence.  The  impact  was  no less great and prejudicial when, as actually happened, the court directed the juries to look particularly closely at the gravity and horror of Bailey's and Flamer's acts, but not at anything which might tend to mitigate.

IV.

While I urge that casting a bright light on those fac- tors   **121    most  likely  to  bring  about  a  sentence  of death was unconstitutionally prejudicial, I conclude that such error was further compounded by the fact that one of the factors thus singled out for the juries' attention was unconstitutionally included in the list of statutory factors. While the majority does acknowledge that awarding one factor the imprimatur of statutory factor may give it heightened significance over other factors, it argues that in Zant, "the Supreme Court recognized that the statu- tory  label  "aggravating  circumstance"   'arguably  might have caused the jury to give somewhat greater weight to petitioner's prior criminal record than it otherwise would have given.'" Maj. Op. at 39 (quoting Zant, 462 U.S. at

888). "Nevertheless, the Court held that 'any possible im- pact' resulting from the use of that label 'could not fairly be regarded as a constitutional defect in the sentencing process.'" Maj. Op at 39 (quoting Zant, 462 U.S. at 889). Zant, however, is not applicable here. In Zant, "the in- structions did not place particular emphasis on the role of statutory aggravating circumstances in the jury's ultimate decision." 462 U.S. at 889 (emphasis **122   added) (ci- tation omitted). "Instead the trial court instructed the jury to 'consider all of the evidence received in court through- out  the  trial  before  you'  and  to  'consider  all  facts  and

circumstances presented in extinuation sic ,  mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense.'" Id. In Bailey and Flamer, however, the judges' instructions did place particular emphasis on the role of statutory fac- tors at the discretionary stage. Furthermore, there is no indication  that the jury in Zant received the sort of in- terrogatory that is central to our concern here. In other words, while the jury was instructed in Zant to consider an impermissible statutory factor at the eligibility stage, it received no such direction regarding the discretionary stage.

Contrary to the majority, I find this difference to be

"of  constitutional  dimension."  It  is,  in  fact,  fundamen- tal. Sentencing in death penalty cases requires two dis- tinct  and  sequential  stages:   eligibility  and  discretion. Because the statutory factors in Zant played   *776   no role whatsoever in guiding the jury at the discretionary stage,   **123   id. at 874, "the jury's ultimate decision," id. at 889, was not itself marred by constitutional error; any prejudice against Zant would have resulted from the residual effect of considering that factor at an earlier stage in the trial (the eligibility stage). In the cases before us, however, the jury's attention was once again focussed on the  statutory  factors  at  the  discretionary  stage.  In  fact, the judges in their interrogatories singled out the statu- tory factors for the juries' special consideration. In other words,  whereas  in  Zant  the  statutory  factors  may  have been in the recesses of the jurors' memories at the discre- tionary stage, they were made current and predominant in Bailey and Flamer. The statutory factors, which played no role in the jury's "ultimate decision" in Zant, played the central role in the juries's ultimate decisions that Bailey and Flamer should be put to death.

V.

I conclude that in Delaware's non-weighing scheme, at the discretionary stage, (1) the forced consideration of some aggravating but no mitigating factors, compounded by the enhanced designation of those factors as "statu- tory," and (2) the mischaracterization of an aggravating

**124    factor  as  statutory  at  the  discretionary  stage, amount to constitutional defect and are grounds for rever- sal.

As with the inclusion of an invalid factor in a weigh- ing scheme, when this combination of errors occurs, we cannot "assume it would have made no difference if the thumb had been removed from death's side of the scale." Stringer v. Black, 503 U.S. 222, 232, 117 L. Ed. 2d 367,

112 S. Ct. 1130 (1992). VI.

Because I conclude that the sentencing of both Bailey

68 F.3d 736, *776; 1995 U.S. App. LEXIS 29678, **124

Page 33

and Flamer was tainted with constitutional error, I now address  the  issue  of  harmless  error.  The  United  States Supreme Court recently held that "when a federal judge in a habeas proceeding is in grave doubt about whether a trial error . . . had 'substantial and injurious effect or influence in determining the jury's verdict,' that error is not harmless." O'Neal v. McAninch, 130 L. Ed. 2d 947,

115 S. Ct. 992, 994 (1995).

As should be clear from my foregoing analysis, I har- bor such "grave doubts" in this instance. In each case, the judge's instructions, coupled with the interrogatory, un- duly focussed the jury's attention at the discretionary stage on the statutory factors -- presumably the most damning considerations in support of a death sentence. By drawing attention **125   to those factors, each judge necessar-

ily magnified their importance and diminished the jurors' attention  to  those  factors  arguing  against a  sentence  of death. It is unarguable that drawing the jurors' attention to one type of factors over another would have a "substantial and injurious effect or influence in determining the jury's verdict." As Judge Lewis argues, inclusion in the list of statutory factors (which totalled four in both Bailey and Flamer) of an unconstitutionally vague factor may well have been a deciding factor as well in the imposition of the death sentence. Therefore, I find that the errors were not harmless.

VII.

For this reason, I would vacate the death sentences of William Henry Flamer and Billie Bailey and remand for further proceedings consistent with this opinion.

	Contents    Prev    Next    Last