Donald Henry Gaskins, a South Carolina prison inmate under sentence of death for capital murder, appeals the district court’s denial of an evidentiary hearing and dismissal of his 28 U.S.C. § 2254 petition for failure to show entitlement to federal collateral relief. We affirm.
I
Gaskins’ victim, fellow death row inmate Rudolph Tyner, had been sentenced to death for killing a Mr. and Mrs. Moon during a robbery. Tony Cimo, a stepson of the Moons, seeking to avenge the murders, contacted an acquaintance who put him in touch with Gaskins, who was serving ten life sentences, nine for murder and one for burglary. Telephone toll records produced at trial showed that thereafter Gaskins made a number of collect calls either to Cimo or to Cimo’s acquaintance who had made the contact. Some of the recorded calls revealed that, after numerous failed attempts to poison Tyner, Gaskins resolved to kill Tyner by means of an explosive device.
Ultimately, Gaskins succeeded. James Arthur Brown, a prisoner assigned to deliver meals to death-row inmates, testified that on the afternoon of the murder, Gas-kins asked Brown to deliver a device to Tyner. Brown described the device as a radio-type speaker built into a plastic cup through which, Gaskins led Brown to be
*945
lieve, Tyner could communicate with Gas-kins in the adjoining cell rather than having to yell through a common vent. The bottom of the cup had a female-electrical socket adapted for connection to an extension cord. Along with the cup’s dеlivery Brown was to tell Tyner that “ ‘the wire was in the bottom vent in his cell.’ ”
See State v. Gaskins,
Gaskins was convicted and sentenced to death by a jury, and his conviction and sentence were affirmed on direct appeal.
See State v. Gaskins,
This § 2254 petition, raising several claims, followed and was summarily dismissed by the district court. A number of issues and sub-issues are raised on appeal. Of these, one involves the denial of an evidentiary hearing respecting the admission in evidence аt sentencing of an earlier confession to other murders, one involves a claimed denial of due process by virtue of trial judge bias, two involve alleged constitutional violations in jury selection, three involve trial court evidentiary rulings allegedly impacting on the trial’s fundamental fairness, one involves prosecutorial misconduct, two involve guilt-phase jury instructions, and five involve alleged errors during the trial’s sentencing phase.
We address each of these in turn.
II
Gaskins contends that he was erroneously denied an evidentiary hearing to establish his claim that portions of a confession given by him in connection with an earlier, bargained plea of guilty to several unrelated murders were unconstitutionally admitted at the sentencing phase of his Tyner murder trial.
The district court summarily dismissed this invalid-use-of-confession claim on the stated basis that “[tjhere is no reason, and no precedent, for arguing the confession’s invalidity for the first time during the sentencing phase of a trial for a subsequent crime five years later ... [rather than] in a collateral proceeding directed at those prior crimes.” On this appeal, the parties have joined issue on this threshold question of the habeas court’s power to entertain this claim. Because it is a difficult issue with broad and unclear implications, 1 and because there is an alternative basis for upholding the summary dismissal, we decline to rest decision upon the district court’s stated basis for dismissing the claim.
To address the alternative basis, it is necessary first to identify the exact nature of Gaskins’ constitutional claim. We takе it to be that because the earlier confession was coerced, hence involuntarily given, hence unconstitutionally obtained, its use in evidence in the sentencing phase of the later Tyner trial violated Gaskins’ eighth amendment right to a “reliable] ... determination that death is the appropriate punishment.”
Johnson v. Mississippi,
The claim is rested on the undisputed fact that at Gaskins’ sentencing hearing, a state solicitor was allowed, over Gaskins’ timely objection, to read portions of the *946 earlier confession in which Gaskins had admitted committing seven other murders. Though in personally arguing his case to the sentencing jury Gaskins specifically conceded that, “I'm guilty of some of [the murders], yes. I do not deny that,” J.A. at 593, his contention apparently now is that he was coerced into confessing to more than he later conceded to the sentencing jury. From this, the argument runs that the sentencing jury’s determination could be shown to be constitutionally unreliable if, as he claimed but was not allowed to establish by evidence, the jury thought him guilty of all the seven murders rather than the “some” lesser number that he specifically conceded. Given this possibility, Gas-kins contends that the district court erred in failing to give him an evidentiary hearing to attempt to establish his claim of constitutional unreliability.
This argument fails because of the claim’s facial lack of merit. Where the allegations in a habeаs petition are palpably incredible, the petition properly may be dismissed without affording any evidentiary hearing.
See Blackledge v. Allison,
We might also affirm the summary dismissal of this claim on the alternative basis of a roughly parallel harmless error analysis.
See Estelle v. Smith,
Ill
We next consider the district court’s dismissal of Gaskins’ claim that the state trial judge’s demonstrated bias and lack of impartiality made his state trial fundamentally unfair and therefore violated his constitutional right to due process.
*947
Fourtеenth amendment due process requires, at a minimum, an impartial judge and jury.
See Anderson v. Warden, Md. Penitentiary,
We are persuaded upon a careful review of the record that the judge’s conduct did not dеny Gaskins a constitutionally fair trial.
Of the twenty-two alleged instances where the trial judge questioned witnesses, Gaskins asserts the following as examples of the most “egregious” demonstrations of impermissible bias. These occurred during the questioning of state’s witness James Brown and Gaskins’ chief rebuttal witness to Brown’s testimony, John Caison.
It will be recalled that Brown was the inmate who, allegedly at Gaskins’ behest, actually delivered the bomb to Tyner, and who testified to that effect at trial. The allegedly prejudicial conduct occurred when the state attempted to introduce through Brown certain incriminating letters that Gaskins had given Brown. After Brown testified that Gaskins had given him the letters, but before the letters were introduced, the trial judge conducted a hearing outside the hearing of the jury to dеtermine the letters’ admissibility. When the jury returned, the trial judge, even though Brown had already testified to the source of the letters, asked Brown to “reiterate where he got the documents from for the jury." J.A. at 214.
During Brown’s cross-examination, Gas-kins attempted to establish that the letters were not incriminating. After sustaining an objection to a question concerning the intent of a phrase in the letter, the trial judge asked Brown directly what the letters meant to him. When Brown responded that they meant that Gaskins was trying to talk Brown into “taking the rap for it,” the trial judge commented, “[tjhat’s right. That’s what he thought.” J.A. at 269.
During the state’s cross-examination of Gaskins’ rebuttal witness, John Caison, Caison testified that Brown told Caison that Brown and others were plotting to get Tyner. When Caison testified that Brown did not reveal other members of the plot, the following colloquy occurred between the trial judge and Caison:
THE COURT: You didn’t ask [Brown who the other members of the plot were?]
CAISON: No, he said ...
THE COURT: It’s such a big event, weren’t you curious?
CAISON: What he told me, he said ...
THE COURT: Tell the truth now. Did you ask him?
CAISON: I asked him what it was about.
THE COURT: Did he tell you?
CAISON: No sir, he ...
THE COURT: He wouldn’t tell you?
CAISON: He told me the less that I knew the better off I was.
THE COURT: He delivered the explosives for somebody else?
CAISON: I guess so. He didn’t tell me that.
THE COURT: He didn’t tell you that. Tell the jury what he told you?
J.A. at 336-37.
Later, after Caison’s redirect testimony concerning Brown’s alleged involvement in an earlier attempt to poison Tyner, the trial judge again engaged in a colloquy with Caison:
MR. SWERLING: Who told you not to go on Death Row [the day Tyner was killed]?
CAISON: James Brown.
******
THE COURT: Why did he tell you that?
*948 CAISON: He didn’t want me to go on there to know about nothing. He wanted me to stay away from death row.
THE COURT: All right. What did he have against Rudolph Tyner? Why did he want to kill him?
CAISON: For the money.
k ¡Ü * * ¡k *
THE COURT: [Where did the money come from?]
¡k ¡k ¡k *k *k *k
CAISON: I don’t know. He didn’t say.
THE COURT: And you didn’t ask?
CAISON: He wouldn't have told me anyhow.
THE COURT: Why didn’t you ask him who paid him money?
2j! sk sk sk sk *
CAISON: Well, when somebody don’t want to answer your question, you best leave them alone.
J.A. 343-47.
Gaskins argues that the trial judge’s engagement with Brown and Caison reflected to the jury that Brown’s thеory, and not Caison’s theory, was credible. This, argues Gaskins, rendered the trial fundamentally unfair, especially when coupled with the following accessory-before-the-fact jury instruction:
[Y]ou must be convinced as I told you that the Defendant here aided, counseled, or otherwise procured James Brown to commit the murder of Rudolph Tyner and that the Defendant was not present either actually or constructively.
J.A. 446. The instruction, argues Gaskins, simply incorporated the state’s theory of the offense into the charge.
Although these various instances of involvement by the trial judge might, in isolation, have damaged Gaskins’ ability to discredit Brown’s testimony, taken in the context of the entire trial, the trial judge’s involvement did not render the trial fundamentally unfair. The record evidence of Gaskins’ involvement in the plot to kill Tyner, even without Brown’s testimony, was overwhelming. We therefore hold that any error in the trial court’s involvement was harmless beyond a reasonable doubt.
See Anderson,
Finally, respecting the trial judge’s alleged statement to the newspaper, although we seriously question the propriety of such a statement if actually made, there is no evidence that the newspaper was read by any members of thе sequestered jury or that by making the statement the trial judge allowed arbitrary factors to enter into the jury’s deliberation. The judge himself did not of course decide the sentence to be imposed.
We therefore affirm the district court’s rejection of the claim of a denial of due process by virtue of the trial judge’s lack of impartiality.
IV
We next consider related claims respecting the jury selection process.
Of ten peremptory challenges available to Gaskins, three were exercised to exclude jurors Rhyne, Richardson, and Cecil. Gas-kins argues that, for various reasons, the trial court erroneously refused to excuse these jurors for cause. Of the jurors who did sit, Gaskins argues that the trial court erroneously refused to excuse juror Dostеr for cause.
Gaskins rightly makes no claim that requiring him to use peremptory challenges to exclude jurors Rhyne, Richardson, and Cecil violated his fourteenth amendment right to due process by arbitrarily depriving him of the full complement of peremptory challenges allowed by South Carolina law.
See Ross v. Oklahoma,
*949
“Any claim that the jury was not impartial ... must focus ... on the jurors who actually sat” and cannot be established simply by showing the loss of a peremptory challenge.
Id.
at 86,
Of the jurors who actually sat, Gaskins only challenges the impartiality of juror Doster, whom Gaskins unsuccessfully challenged for cause but did not then challenge peremptоrily. Doster admitted on voir dire that his “honest opinion is that [Gas-kins] was found guilty, convicted of those earlier murders, [and] he should have been executed at that time.” J.A. 110. Moreover, upon questioning by the trial court, Doster stated that, if Gaskins were found guilty of Tyner’s murder, and that if it were shown that Gaskins had murdered before, Doster would be predisposed to impose a death penalty. Though he concedes, that Doster was capable of impartially determining guilt or innocence, Gaskins contends that Doster should have been excused for cause because Doster’s ability to consider a life sentence would be substantially impaired by his belief that Gaskins should have received the death penalty for the previous murders.
While it may be true that Doster was predisposed in favor of the death penalty, we find no constitutional error in the trial court’s refusal to exclude him. First, it is important to note that Gaskins elected not to use an available peremptory challenge to remove Doster. Though not dispositive, this is some indication that, at the time, the trial judge and Gaskins, both of whom had opportunity to observe Doster’s demeanor, felt that Doster would act impartially. The controlling principle here is that “the most that can be demanded of a venireman ... is that he be willing to
consider
all of the penalties provided by state law, and that he not be irrevocably committed.”
Witherspoon v. Illinois,
Accordingly, we agree with the district court that the trial court’s refusal to dismiss Doster for cause did not violate Gas-kins’ sixth amendment right to an impartial jury.
V
During the course of the trial, the trial court made three evidentiary rulings which, Gaskins argues, rendered his trial fundamentally unfair. The first involved Gas-kins' cross-examinatiоn of James Brown; the second involved Gaskins’ direct examination of John Caison; the third involved allowing a material witness to assert the fifth amendment.
During cross-examination of Brown, Gas-kins sought to discredit Brown with questions concerning Brown’s attempts to blame on others the two prior murders of which he had been convicted. This evidence, argues Gaskins, constituted not only an attack on Brown’s credibility, but would also have buttressed Gaskins’ theory that Brown, not Gaskins, had conceived and executed Tyner’s murder. The trial court excluded this evidence based upon the general South Carolina rule that only the fact of a conviction of a crime of moral turpitude is admissible. On appeal, the South Carolina Supreme Court held that, to the extent the trial court’s ruling was erroneоus, such error was harmless.
See Gaskins,
Absent “circumstances impugning fundamental fairness or infringing spe
*950
cific constitutional protections,” admissibility of evidence does not present a federal question.
Grundler v. North Carolina,
Although Gaskins was not permitted to elicit from Brown the circumstances surrounding his other convictions, Gaskins availed himself of ample opportunities to discredit Brown’s testimony. For example, during cross-examination, Brown revealed that, contrary to his trial testimony, he had initially told investigators that he and Gas-kins had run together to Tyner’s cell after the explosion. J.A. at 225. On further cross-examination, Brown admitted that he had revealed nothing to investigators about the speaker-cup bomb, and that when he finally did give his present version of the Tyner murder to the prosecutor, he did so from fear of being charged himself. J.A. at 232. In light of ample opportunities to impeach Brown’s credibility, and in light of the overwhelming evidence of Gaskins’ guilt, any abuse of the trial court’s discretion on this score was harmless beyond a reasonable doubt.
Similarly, any improper restriction on Gaskins’ direct examination of John Caison was harmless beyond a reasonable doubt. On direct examination, James Brown stated that he had nevеr admitted to Caison having attempted to poison Tyner. On direct examination of Caison, Gaskins attempted to elicit testimony to the effect that Brown had admitted attempting to poison Tyner and that, on the day of the explosion, Brown had told Caison to stay away from death row. The trial court excluded these statements as inadmissible hearsay. J.A. at 298-301. Even so, during cross-examination, Caison testified that “James Brown told me that they were plotting to get [Tyner],” and that Brown told Caison “not to be on death row on Sunday.” J.A. at 336-37. The information allegedly excluded was therefore ultimately adduced during cross-examination, rendering any error by the trial court in excluding it harmless beyond reasonable doubt.
See Grundler,
Gaskins’ final challenge to the state trial court’s evidentiary rulings involves the сourt’s refusal, after being informed that witness William Cole would assert his fifth amendment privilege against self-incrimination if forced to testify, to require Cole to take the stand and assert the privilege in open court. Out of the jury’s hearing, the trial court determined that the crux of Cole’s testimony would be that, after the explosion, Gaskins went, not to his cell as Brown had testified, but down to the site of the explosion.
See Gaskins,
A criminal defendant’s right to compel testimony is fundamental to sixth and fourteenth amendment due process rights.
See United States v. Goodwin,
On this point we agree with the South Carolina Supreme Court that the trial court’s refusal to require Cole to assert his fifth amendment privilege before the jury was in any event harmless error. First off, as the South Carolina Supreme Court concluded, Cole’s testimony would have been merely cumulative.
See Gaskins,
VI
Gaskins’ next claim involves alleged prosecutorial misconduct.
During the state’s closing argument at the guilt phase of Gaskins’ trial, the solicitor stated that he wished to talk to the jury “about what is not in dispute in this case.” J.A. at 367. The solicitor then proceeded to list fourteen so-called “undisputed” pieces of evidence, eight of which, Gaskins argues, only Gaskins could have disputed. Additionally, during the sentencing phase of Gaskins’ trial, the prosecutor stated that “Mr. Gaskins has shown no remorse. No emotion. He has shown you nothing.” J.A. at 577. Gaskins did not object to these statements at trial, but argued on both direct appeal and collateral review that these statements constituted violations of
Doyle v. Ohio,
In assessing an alleged
Doyle
violation, the question is whether the disputed statement so infected the trial and sentencing with unfairness that the ultimate conviction and sentence constituted a denial of due process.
See Darden v. Wainwright,
As the magistrate’s recommendation, adopted by the district court, correctly notes, Gaskins presumably could have sought the testimony of voice and handwriting analysts to contradict items 1-7, and any number of inmates could hаve testified to the items Gaskins kept in his cell before Tyner’s murder. We agree with the district court that, under these circumstances, the prosecutor’s “laundry list” argument did not constitute a Doyle violation.
Likewise, the state’s argument during sentencing to the effect that Gas-kins has shown no remorse must be viewed in context. The solicitor stated that:
Mr. Gaskins has announced to the Court that he is going to make a speech to you as well. I want Mr. Gaskins when he comes up to tell you what in his character caused him to murder each of these people, what caused him to murder Dennis Bellamy? What caused him to shoot this 15 year old, Johnny Knight, in the back of the head?
* S& * * * *
Mr. Gaskins has shown no remorse. No emotion. He has shown you nothing.
jjs s}: sfc 5}s
Mr. [Gaskins] is going to speak to you at this time ... and I ask you to listen to [him] as you listened to mе.
J.A. 576-77. Under no reasonable view can the solicitor’s statement be construed to constitute an improper comment on Gas-kins’ refusal to testify at the guilt phase of his trial.
VII
Gaskins asserts the following two errors in the trial court’s guilt-phase jury instructions: (1) the trial court’s charge regarding presumed malice constituted an impermissible burden-shifting instruction; and (2) the trial court’s reasonable doubt instruction impermissibly lessened the state’s burden of proof.
As part of the jury charge, the trial court instructed the jury that “while malice is presumed from the use of a deadly weapon or from a dangerous instrument ... where circumstances relating and surrounding the incident are brought out, then the presumption vanishes and malice again must be proven to you beyond a reasonable doubt.”
*952
J.A. at 442. On direct appeal, the South Carolina Supreme Court held that, although the instruction constituted impermissible burden-shifting, the constitutional error was harmless beyond a reasonable doubt.
See Gaskins,
Even where an instruction constitutes impermissible burden-shifting, any error in giving it may be found harmless if the reviewing court can say beyond reasonable doubt that the jury would have found it unnecessary to rely on the burden-shifting presumption in order to convict.
See Rose v. Clark,
Here, the jury necessarily found by its guilty verdict that Gaskins had murdered Tyner with a bomb Gaskins had built from electronic components in his cell and a piece of dynamite he received in the mail, so it is difficult to see how the jury could not have concluded, even without the presumption, that the killing was done “with malice.” Aside from the raw circumstances of the killing, transcripts of conversations between Gaskins and Jack Martin (the intermediary who procured Tyner’s murder) constitute further overwhelming evidence of malice. 3 We therefore can say “ ‘beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.’ ” Id.
Gaskins next asserts that the trial court’s definition of reasonable doubt for the jury as “a doubt for which you can give a reason[,] [i]t is a substantial doubt,” J.A. at 439, relieved the prosecution of proving every element of the crime beyond reasonable doubt as required by
In re Winship,
An instruction equating reasonable doubt with “ ‘a substantial doubt, a real doubt’ ... although perhaps not in itself reversible error, often has been criticized as confusing.”
Taylor v. Kentucky,
Viewed in the context of the entire record of trial, the substantial-doubt portion of the instruction did not rise to the level of a due process violation. First, the trial court employed the instruction to set in contrast “some imaginary doubt or some slight doubt or some fanciful doubt that you might have.” J.A. at 439. .The trial judge’s use of the term substantial doubt was, in context of the entire instruction, more accurate than when viewed in artificial isolation, and was not “likely to ‘mislead the jury into finding no reasonable doubt when in fact there was some.’ ”
Smith v. Bordenkircher,
*953 We are not prepared to say that this instruction, even in combination with the substantial doubt instruction, “so infected the entire trial that the resulting conviction violates due process.” Id. at 1276.
VIII
Gaskins argues that allowing evidence that a prior death sentence of Gas-kins had been vacated could have led the jury to believe that any death penalty it imposed was advisory only, thereby diminishing the jurors’ sense of responsibility for death-penalty imposition in violation of
Caldwell v. Mississippi,
“[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.”
Caldwell,
The asserted Caldwell violation occurred when, during the penalty phase of the trial, the state introduced evidence of Gaskins’ previously vacated murder conviction. 5 And it is argued that this Caldwell violation was aggravated by the trial court’s use over 40 times of words to the effect that “you will recommend that the court sentence the defendant to life imprisonment [or] death.” J.A. 610 (emphasis added).
Even taken together, we conclude that this evidence and the judge’s statement “had no effect on the sentencing decision.”
Caldwell,
Similarly, even taken together with the prior-death-sentence evidence, it is difficult to see how, in context, the trial judge’s use of the word “recommend” could have had an effect on the sentencing decision. In an exhaustive analysis, the facts of which are not disputed here, the magistrate noted that during voir dire, the trial judge, the solicitor and Gaskins’ attorney repeatedly told each juror that the jury could sentence to death or life imprisonment, that the jury had to make the decision, and that “the jury will be asked to decide his punishment, either life imprisonment or death by electrocution.” Moreover, in each case Gaskins cites finding a Caldwell violation, the suggestion to the jury that its decision was merely advisory was explicit and obvious. Nowhere in this case did anyone even imply that the jury’s recommendation was non-binding. Though, in retrospect, we believe a wiser course would have been for the trial judge to explicitly instruct the jury that the word “recommendation” meant “binding recommendation,” under the circumstances, we are satisfied that the jury was properly aware of its sentencing responsibilities.
*954
Gaskins also contends that, even if there was no
Caldwell
violation, allowing testimony concerning the prior-vacated death sentence introduced arbitrary factors in the sentencing decision in violation of
Booth v. Maryland,
IX
Gaskins’ final assignments of error concern the trial judge's instructions to the sentencing jury to the following effect: (1) that the jury could not allow itself to be governed by symрathy; (2) that mitigating circumstances must be found beyond a reasonable doubt; (3) that the decision to impose a life sentence must be unanimous.
At the sentencing hearing, the trial court instructed the jury not to allow itself to be governed by sympathy:
You cannot allow yourselves to be governed by sympathy, by prejudice, or by passion or by public opinion. Both the state and the defendant have the right to expect that each of you will carefully and impartially consider all of the evidence in this case....
J.A. at 619. Gaskins argues that this instruction, coupled with the prosecutor’s statements to the effect that Gaskins was asking for, but deserved, no mercy, constituted an eighth amendment violation because it effectively precluded the jury from considering relevant mitigating evidence offered by Gaskins, namely his individualized appeal for compassion, understanding and mercy.
See, e.g., Caldwell,
Our consideration of this issue is foreclosed by the Supreme Court’s recent decision in
Saffle v. Parks,
— U.S. -,
Gaskins next asserts that the following charge, because it used the term “reasonable doubt” so close to the term “mitigating circumstance,” impermissibly suggested to the sentencing jury that mitigating circumstances must bе found beyond reasonable doubt in contravention of the eighth amendment:
Before you can recommend the imposition of a life sentence, it is not necessary and I repeat, it is not necessary for you to find beyond a reasonable doubt the existence of any alleged statutory mitigating circumstances or any other mitigating circumstance.
While it is necessary for you to find beyond a reasonable doubt the existence of at least one alleged statutory aggra *955 vating circumstance before you can recommend that the defendant be sentenced to death, it is not — it is not required that you find beyond a reasonable doubt the existence of at least one alleged statutory mitigating circumstance in order to recommend that the defendant be given a life sentence. As a matter of fact, you may recommend that the defendant receive a life sentence irrespective of whether you find the existence in the evidence of an alleged statutory mitigating circumstance or not; but where you consider an alleged statutory mitigating circumstance, it is proper for you to consider only a statutory mitigating circumstance that is supported by the evidence.
J.A. 614-15 (emphasis added). We disagree. Gaskins' strained interpretation of the trial court’s jury instruction is simply not supported by its language, and does not warrant finding an eighth amendment violation.
Similarly, the trial court's statement to the effect that “you have to find at least one or more aggravating circumstances or else you will have to recommend a death sentence [presumably the trial court meant to say life imprisonment instead of death sentence],” could not, in the context of the entire charge, have confused a reasonable juror. As the South Carolina Supreme Court stated, the trial court instructions made patently clear that: (1) a death penalty could not be imposed without aggravating circumstances; (2) if statutory or non-statutory mitigating circumstances were found, a life sentence would be appropriate; (3) the jury had, in any case, full discretion not to impose the death sentence, even though aggravating circumstances and no mitigating circumstances were found.
See Gaskins,
Gaskins’ final asserted error in the jury charge concerned the trial court’s erroneous instruction to the effect that the decisiоn to impose a life sentence must be unanimous. Gaskins contends that this incorrect instruction effectively communicated to the jury that if all members of the jury did not agree on Gaskins’ sentence, then a mistrial would ensue. Thus, the erroneous instruction constituted an arbitrary factor into the sentencing, rendering the unanimous death sentence unreliable.
See, e.g., Gardner v. Florida,
We disagree. Although the trial court inadvertently misstated South Carolina law, it is inconceivable that the disputed instruction could have caused the jurors unanimously to impose a death sentence out of fear of mistrial should they not be unanimous in their decision to impose life imprisonment. We are satisfied that this improper instruction, viewed in context of the entire jury charge, could have had no effect on the sеntencing decision.
See Caldwell,
X
For the foregoing reasons, we affirm the district court’s dismissal of Gaskins’ habe-as corpus petition.
AFFIRMED.
Notes
.
Cf. United States v. Jones,
. The parties do not raise and we therefore do not address the possible bearing on this point of
Zant v. Stephens,
. Some examples of conversations appear in the record:
When he plugs that son of a bitch up, it'll blow him on into hell.... Dam [sic] if I can’t fix him up.
Get me enough to do that damn job and listen for the bang.
That's enough [drug] to bust his heart.
The next night after I get [the poison] ... that son of a bitch'll be laid out.
That’s a hell of a hard nigger to get rid of.
J.A. 1185.
. Because this claim is closely related to Gas-kins' claim that the trial judge’s sentencing-phase instructions exacerbated the Caldwell violation, both will be dealt with in this section of the opinion.
. The sentence was vacated when the South Carolina Supreme Court declared South Carolina's death penalty statute unconstitutional.
. The challenged instruction in Parks stated that:
You must avoid any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factor when imposing sentence. You should discharge your duty as jurors impartially, conscientiously and faithfully under your oaths and return such verdict as the evidence warrants when measured by these Instructions.
Parks v. Brown, 860
F.2d 1545, 1552 n. 8 (10th Cir.1988), reversed, - U.S. -,