*1 “requires only Amendment that the seizure IV. reasonable, objectively not that the officer We thus affirm the orders of the lower

pursue the prudent most course of conduct court for the reasons indicated. judged by hindsight vision.” Id. 20/20 In applying principle to the fatal Tauke,

shooting of Mr. we note first that we tragic

are not blind circumstances of gunned

the case. Mr. was by Tauke down

high-powered rifle on his own property. The

invasion of his constitutional interests was extreme, since “[t]he intrusiveness of a sei CARGILL, David Loomus by deadly

zure means of force is unmatched.” Petitioner-Appellant, Garner, U.S. at 1700. But it undisputed is that the state law enforce ment officers were confronted awith man Tony TURPIN, Warden, Georgia drop weapon,

who despite refused his re Diagnostic and Classification orders, peated and who instead fired first Center, Respondent-Appellee. shot, followed more. At several the time No. 94-8735. the authorization to shoot given, was moreover, troopers all of the at the scene Appeals, United States Court Trooper were aware that Shinker had been Eleventh Circuit. wounded, and assailant was still Aug. armed unwilling to surrender. It is clear to us that in these circumstances the giving shoot,

officer the authorization to trooper Tauke, Mr. shot could rea

sonably have believed that this a situa was

tion in which significant there was a threat of

death or physical injury serious to those at before,

the scene. As noted we do not ask

whether the course of action chosen was the prudent

most or the wisest one. We ask

only whether the decision to deadly use force reasonable, objectively and we hold that

it was as a matter law.

III. against cause action Sheriff Kenne-

dy based on turning control of the rele-

vant events over to the state law enforce-

ment officers shortly can be dealt with.

Whether respondeat construed as a su- claim,

perior it, court below construed independent

or as an claim for abandoning a

duty imposed by law, state it fails because

the other deprive defendants did not Mr.

Tauke of right, constitutional and there-

fore no claim under 1983 can against lie

anyone for Mr. Tauke’s death. *3 Smith, Attorney

Paula K. Assistant Gener Law, Atlanta, GA, Georgia Department of a^ Respondent-Appellee, ^or HATCHETT, Judge, Before Chief KRAVITCH, DUBINA, Judge, Circuit Judge. Circuit Senior HATCHETT, Judge: Chief *4 appellant, Cargill, Georgia The David prisoner two of convicted of counts state robbery, armed murder and counts of two corpus peti- of appeals denial his habeas challenging his and death tion convictions We affirm. sentences.

I. FACTS1 evening Tuesday, January On the of 22,1985, police of the dead bodies discovered husband, Danny, on Cheryl Williams and her of floor the Premium Oil Service Station Georgia.2 The City, River in Bibb on Road two gunshots each sustained Williamses had floor; lying Cheryl the head while on the less was shot from a distance of Williams approxi two The assailants stole than feet. mately service station $480 Danny knife from Williams.3 week, Wednesday, During previous on 1985, 16, pickup January John McCollum’s truck, gray right- green, 1969 model with bed, Hardin, dog in the was McKinney, fender .and a box Phillip Rogers & front S. GA, night of Atlanta, Richardson, On the GA, Opelika, Alabama. Conyers, Eli J. stolen January the truck near witnesses saw Petitioner-Appellant. 2261(a)-(c) § findings apply See 28 U.S.C.A. on to this case. base statement of facts 1.We our Moreover, State, (West Supp.1997). rele Cargill the AEDPA’s Georgia Supreme Court in v. of the do (1986). chapter of 28 153 Title vant amendments S.E.2d 891 "State 255 Ga. 340 Murphy, - U.S. apply v. See Lindh subject are to a here. findings of historical fact court -, -, 138 L.Ed.2d 117 presumption to the stated of correctness extent (1997) ("We negative implica hold that the Turpin, 481 § 2254.” Williams 28 U.S.C. 107(c) Cir.1996). § new AEDPA] is that the Cargill [of tion of does F.3d apply chapter generally provisions Georgia Supreme of challenge Court’s find- effective.”). fact, [AEDPA] became appear" cases filed after ings do not "otherwise any circumstances enumerat- to fall under Cheryl part-time at the ser- Williams worked 2254(d)(l)-(8). Accordingly, ed section station, assisting her was vice and her husband findings "presumed to be correct.” boys un- evening. had four Williamses 2254(d) U.S.C. years age. der ten appellee We note has not asserted of the basis for one provisions 3. The cash served and Effective Antiterrorism ("AEDPA") robbery oth- the knife for the Penalty at armed counts and of 1996 codified Death Act 2261-66, §§ chapter U.S.C. er. of Tide Mathis, According Cargill Station. the week- Premium Oil Service On returned to murders, apartment approximately Brown their between prior end to the Katherine 9:00 p.m. brother, evening. Although and 10:00 Cargill he saw Thomas Cargill and left, money did not have when he he (commonly known hereinafter referred large with a returned box fried chicken possession the truck. “Tommy”), to as Mathis, Cargill and other food.7 While then-wife, Mathis, Brenda identified ate, her son she noticed blood in photograph as the one McCollum’struck anyone shirt sleeve. After looking see Cargill possessed the time him, watching Cargill rubbed some choc- Cargill also testified that murders.4 Mathis pudding olate into stain. During the blood which, out, turns given items her some dinner, report robbery about the armed belonged and were in his truck to McCollum Mathis, appeared According on television. witness, at the time it was stolen.5 Another said, laughed well, laughed “David — Ledford,, Tommy Hoyt saw ” ‘Aha, they got anything.’ must not have day possession of a truck of the crimes dinner, bath, After to take a went description fitting the of McCollum’svehicle.6 telling Mathis “not to with” mess his clothes. however, Mathis, gave Cargill murders, the shirt into prior On several occasions to the pudding, telling which he had rubbed the him Mathis heard her husband talk about the it out. wash washed out the shirt *5 one,” “big big “the that crime” or and state while in the that evening, bathtub. Later he leave witnesses” because “wouldn’t Cargill gave Mathis between and $150 $175 “[djead Allred, people don’t talk.” Travis anyone and her that if told asked about the neighbor, who had been next-door money, she should state she received it Cargill once him whether testified asked from former support. her husband for child money. he wanted to earn some extra Ac- week, Later Cargill Mathis and Allred, related, “‘Well, Cargill cording to another report watched television news con- place I’ve out scoping been River cerning report the crimes. After the stated to rob it Road and I want and I know where murders, there were to witnesses people everything, safe is and but if the “No, laughed said, Cargill and there wasn’t there, know, identify you they me that any witnesses.” peo- would’—that would have to kill the he crimes, Saturday night On the after the ple.” January Cargill, Mathis and Richard Mathis, According morning to on the there, Whitley nightclub. went to a While January Tommy arrived her Car- approached Cargill, propped Walter Holler gill’s apartment, Cargill him to re- told said, his arm on shoulder “How Tommy turn after left in McCollum’s dark. it, Holler, According about David?” to Car- returned, evening, Tommy truck. In the gill responded, my “Get out of face. I killed “[tjhe telling Cargill girl” girls” “the two. Cargill, One more wouldn’t matter.” alone,” just “are there and that he “had went Whitley stayed Mathis at the club until it Cargill placed handgun there.” then 2:00 Sunday. closed at a.m. returning While (which previously given he home, had to Mathis for Cargill complained Lay- Clinton about pocket safekeeping) Tommy, in his- and told “running field his mouth” Cargill pur- about “Good. go.” gun Let’s chasing group from him. The drove to Cargill 4. shortly divorced and Mathis after his 7.Patrick Tidwell testified he encountered crimes, arrest in this case. At the time of the Cargill p.m. at a bar around 10:30 on the eve- they apartment together lived in an with Mathis's ning January gave Cargill 22. Tidwell a ride prior marriage. son from home, stopping Kentucky en route aat Fried Cargill purchased Chicken restaurant where Additionally, 5. Mathis discovered McCollum's Tidwell, According Cargill food. had "a lot of vest, hunting which was also in his truck at the money” pretty good stack.” Mathis testified taken, —"a apartment. Cargill's time it was in her and Cargill that around this time she and were in a wife, stepfather 6. Tommy’s Ledford is the financial difficult situation and neither of them Tommy City, lived in his house in Ala- Phenix money. had much bama, at the time of the crimes. just res- veil asked her the information had Cargill set the apartment, and Layfield’s 28, a recited was true and whether she would tes- day, January The next on fire. idence it possible tify to in court. Mathis answered program reported news television murders; affirmative. fire and the between the connection information to communicated Mathis room, After Mathis left the Allmond told response, Cargill informed Math- Cargill. Cargill Tommy implicat- his brother had get some coffee. going out is that he him the of the Williamses. ed murderer return, Mathis went to did not Cargill

When Allmond, responded, According Cargill find or discover Tommy’s residence to are alike. The “All sons-of-a-bitehes however, Tommy, his whereabouts. only anything time would’ve said [he] was; eventually tell Mathis where hell of him. I care is if beat out don’t go police. Ac- Mathis threatened you say, you’re I what don’t know what said, Mathis, Tommy “I know cording talking deny my dying ... it to about and I’ll go fine. Don’t to the is. He’s where David point, day. you.” Fuck At this Allmond left just us. things make worse for police. It will room, interroga- and Lovell took over the got enough us.” did not see Mathis We’ve played tape-record- tion. Lovell Cargill again until after arrest. Tommy, message ed which related following: truck, aban- McCollum’s Police recovered Uh, David, Tommy. I this is wanted burned, interior on Janu- with its doned and I you to want to tell them all know didn’t February 10, police found ary On stuff, got I thinking about all weapon identified as the murder pistol later thinking. it and some serious I’ve done backyard in the doghouse hidden under now, Right buddy, you’re hope pistol was in a residence. Ledford’s charged got. They’ve got me with it. The Lay- fingerprints. plastic bag had only way can clear me with is for pistol to *6 field testified that he sold you you to them that it. I don’t tell done transaction, During Cargill told Cargill. not, appre- I’d you’ll know if do that or but pistol anyone to Layfield not mention you it It’s ciate if would. hard me to shoot some- and indicated he intended you something I ask to do like after one with it. all, you and on and but done went told you’re hope got, I’ve right now 13, February Cargill on Police arrested buddy. Columbus, 1985, and Georgia, at motel in David, you I want to think about some- pursuant to rights him of his twice informed family and thing. I know don’t have Arizona, 436, Miranda v. 86 S.Ct. all, I girl day got I’ve a little and but (1966). 1602, forty- About L.Ed.2d 694 her; as it get out and see but want to arrest, Po- Columbus five minutes after the them, stands, you tell there ain’t unless Rudolph Lovell Detectives Department lice that, buddy. I way to do I’ll ever able an commenced interro- Eugene Allmond your lady and love old don’t know Be- Cargill police headquarters. gation of not, boy I wouldn’t take that little or but so, however, again read Allmond doing fore in the for mine. nothing world Cargill Miranda rights. Lovell showed message, detectives playing After Cargill of the both photographs Williamses Tommy interrogation room. brought into the All- after were murdered. before and Lovell, truck, Cargill asked broth- According stolen mond discussed McCollum’s Tommy him. police had hurt clothing the er whether the weapon items of murder “No, they on haven’t laid hand night replied, Cargill on the police believed wore Tommy whether Cargill me.” then asked then recounted Math- Lovell murders. Whitley’s him about bring- police had informed Cargill. After version of events to is’s they had. Tom- room, Tommy Lo- said interrogation suicide.8 ing Mathis into the jail. he suicide while apprehended Whit- committed Law officials enforcement offense, ley apparently unrelated criminal an 1328, brother, 180, denied, got “I’ve little my reh’g then told his 94 L.Ed.2d 481 U.S. 1024, (1987). 1914, you to how 95 L.Ed.2d like for tell them S.Ct. girl” and “I’d really happened. If don’t tell them 1987, May Cargill In filed a state habeas them, you’re that shot I’m—I feel the one corpus petition Superior in the Court going I’m to the electric chair.” There- like County, Georgia. conducting Butts After after, Tommy was escorted from the interro- evidentiary hearing, corpus the state habeas gation room. August court denied relief in an Thereafter, unpublished order. Lovell, According Cargill sat in silence Supreme Court application denied stated, Cargill for about ten seconds. then cause, probable for a certificate and the “Tommy going hap- didn’t know what was Supreme United States Court certio denied pen responded, at that station.” “You Lovell Zant, 963, 110 Cargill rari. 495 U.S. Tommy knew mean there’d be an armed 2576, reh’g 109 L.Ed.2d robbery people get but didn’t know ‘Tes, answered, Cargill Lo- killed?” sir.” 31, 1991, Cargill January On in- filed the stated, on, David, then vell “Come need petition corpus stant for a writ of habeas your According hear mouth.” pursuant to 28 U.S.C. 2254 in the United Lovell, breath, Cargill deep up “took a looked States District Court for the Middle District said, ceiling, ... ‘Tommy at the didn’t Georgia, asserting thirty-eight claims people, shoot those I did.’” Lovell asked April 13, relief. an order issued elaborate, Cargill to stated writ, finding the district court denied the speak lawyer. Cargill’s he wanted to a “ha[d] established a for a need transcribed, confession was not or recorded evidentiary hearing.” federal The court did making denies it. necessary not “deem it to discuss each of the numerous claims made the Petitioner.” II. PROCEDURAL HISTORY Cargill subsequently moved to alter 2, 1994, judgment, amend the and on June trial, three-day After a July district court denied that motion. On Superior Muscogee Court of 29,1994, granted June the district court Car- County approximately concluded three and gill probable appeal. certificate cause to one-half hours of deliberations and convicted error, six now raises claims of five of Cargill of two counts malice murder which merit discussion.11 robbery.9 two counts of armed On the same *7 date, after sentencing the conclusion of the III. DISCUSSION proceeding, jury the deliberated for about A. Confrontation Clause Claim two and imposing one-half hours before a sentence of death each the of murders.10 Cargill argues that the trial state appealed, Cargill Georgia and Supreme the rights court his violated under the Confron Court affirmed his convictions and sentences. tation Clause of the Sixth Amendment in State, Cargill 616, v. 255 Ga. 340 allowing 891 testify S.E.2d to witnesses of several (1986), denied, 1101, cert. Tommy’s 479 U.S. 107 S.Ct. out-of-court statements.12 More trial, Cargill serving testified at his given as the lone firmed” the district court’s failure to ren 9. Tommy findings witness on his behalf. The tried der and state of fact conclusions of law. brother, separately, appeal complete after his in record on standing affords and October 1985 us under issues, therefore, guilty although of found him of the and two counts of malice way approve inwe robbery. murder and two counts my of the district court’s of armed Tom- performance, proceed we the impris- received merits Car- four consecutive life terms of of State, 252, gill's Tejada Dugger, Cargill claims. onment. See See v. F.2d v. 256 347 941 Ga. 1551, (11th Cir.1991), denied, (1986) 1555 S.E.2d cert. 502 U.S. (affirming 559 convictions 1105, 1199, sentences). (1992). 112 S.Ct. 117 L.Ed.2d 439 12.The Confrontation the Clause of Sixth Amend- aggravating 10. The found two circumstances provides prosecu- ment tions, "[i]n that all criminal 17-10-30(b)(2). § under O.C.G.A. enjoy right the the accused shall ... to be Cargill preliminarily 11. contends that the denial against confronted with witnesses him.” Const, corpus petition of his habeas "cannot be af U.S. amend. VI. The Fourteenth Amend-

1373 “through ty, their introduction into evidence violated Cargill asserts that specifically, “thereby officers, rights, his Clause pros- Confrontation police testimony of certain n guilt/innocence prejudicing him at both the inculpatory ... improperly elicited ecutor phases” of sentencing his trial.14 Tommy Cargill allegedly made statements police custody.” Cargill he was while Cargill’s disagree We characterization devastating[ of ]” as the “[m]ost identifies put, hearsay. Simply as of these statements testimony that Lovell’s these statements was never offered or admitted this evidence like tell Cargill, “I’d Tommy told 1985, 2, July Cargill’s its truth.15 On really If don’t happened. them how limine, “respectful- counsel filed a motion them, you’re the shot tell them ly prohibit the intro- mov[ing] Court I’m to the electric going I’m—I feel like by alleged into evidence the State of duction objects Cargill on Confronta- chair.”13 also Tommy Cargill’s confession as Co-Defendant the court’s introduc- grounds tion Clause fruits said confession.” At the well of Tommy’s tape-recorded motion, of tion into evidence July hearing 8 on the coun- all Cargill contends that of statement. have asked for “[w]hat sel clarified we hearsay, because co- alleged “constitute ... ... statements statements defendant, Tommy Cargill, assertions admitted for intro- are out-of-court be asserted, i.e., that response, prosecution David truth of In made matter duced.” Cargill proffering crimes.” perpetrated these it would Cargill clear truth, statements do not for its but rather to demon- argues that these evidence because surrounding firmly hearsay exception circumstances rooted strate fall under of reliabili- voluntariness confession: not bear sufficient indicia do 183, Bourjaily, right obligatory 483 U.S. at 107 S.Ct. at 2782 makes this fundamental ment 403, Roberts, 66, Texas, (quoting 448 U.S. at 100 S.Ct. at v. Pointer states. However, 2539). law, 1065, 1067-68, Georgia a state ”[u]nder by long co-conspirator is ment admissible as co-conspirator's while statement made Cargill following cites the as instances also concealing culprits identi still their '[t]he [are] abridgement right constitutional ’’ Zant, ty.’ 941 F.2d (1) Horton testimony Allmond’s that Tom- confrontation: (first added) Cir.1991) (quoting Chat alteration happened during my what "had told us had State, S.E.2d crimes]"; terton v. 221 Ga. {i.e., perpetration situation (1965)), cert. (2) testimony that McCollum’s truck Lovell’s (1992); L.Ed.2d 652 see also O.C.G.A. Tommy just like “was located and stolen (1995). Georgia's rule is thus broader been”; (3) 24-3-5 testi- told us it had Lovell’s counterpart. See Fed.R.Evid. than its federal weapon "Tommy mony concerning the murder — 801(d)(2)(E) ("a by coconspirator of statement Cargill had us where could find it.” told party during the course and in furtherance of objects prosecutor’s references also hearsay). conspiracy” does constitute opening statements statement dicta, "noted, Bourjaily, Supreme Court reject We during as merit- cross-examination. used in ... is suffi formulation appellee’s less contention failed ciently evalu to mandate a case case different his state and federal to raise these claims in reliability.” hearsay for ation of the indicia corpus petitions. habeas Horton, F.2d at 1464. *8 right to confrontation does The constitutional course, not, 15.Hearsay offered hearsay Bouija- is "an out-of-court statement all bar evidence. of 171, 182, States, Do prove the asserted.” the truth of matter ily 2775, U.S. 107 S.Ct. v. United 483 710, 209, State, 2782, (1987); 713 v. 250 Ga. 296 S.E.2d v. ver 97 L.Ed.2d 144 Dutton 1221, 210, denied, 74, 80, 215, (1982), Evans, 459 103 S.Ct. 27 cert. U.S. 400 91 S.Ct. U.S. 1228, (1983); (1970) Lee v. opinion). L.Ed.2d 462 see also (plurality Where 75 213 L.Ed.2d 530, 4, 2056, Illinois, 543 106 S.Ct. hearsay the 476 U.S. n. at issue are out-of- statements the 4, (1986) (defining hear co-conspirator, n. L.Ed.2d 514 those 90 of a court declarations " evidence, court, say 'testimony written trustworthy in or for Confron- statements are deemed court, the statement government made out of purposes the of statement shows tation Clause truth of reliability." being to show the an assertion they “indicia offered bear sufficient of therein, 182, 2782; resting for its and thus Bourjaily, 107 S.Ct. at matters asserted 483 U.S. at 2531, Roberts, 56, 66, credibility as upon of the out-of-court value the v. 100 S.Ct. Ohio ”) Cleaiy, 2539, (quoting McCormick Supreme serter’ Edward W. The (2d ed.1972)); Padgett independent inquiry Evidence at into on has held that "no Court (1983) State, Ga. 307 S.E.2d reliability required ‘falls v. when the evidence is ’’ approval). exception.’ (quoting definition with firmly hearsay McCormick within rooted occasions, fact, case, hearing There are some I Denno in this [v.J the Court think will recall from the that they the Court Jack- sees are relevant to volun- show [vj hearing, tariness of part alleged son Denno of the defendant’s state- the ments and for that I interrogation purpose of this defendant limited will involved portions deny of the I making him aware of motion limine. will instruct jury being brother’s statement while he was that certain statements were al- legedly made interrogated. certainly Those would brother of the defen- dant; admissible, Honor, allowing that I am not Your insofar as the state to statement, of refer them the of voluntariness and the truth the brother’s statement, surrounding statement. circumstances they’re not for truth that contained Thus, face, its ruling applied court’s

in—that’s contained therein —but because all Tommy’s of statements —“the will Court had made such a co-defendant state- alleged not let the statements of defen- ment, part parcel of and it dant’s brother in for the truth of state- those surrounding circumstances the confession ments.” gave. that this defendant trial, Cargill’s objected At counsel to the playing Tommy’s tape-recorded statement. way ... is the statement [T]here court, adhering prior gave to its ruling, gave any that this make defendant following cautionary instruction: sense it whatsoever unless is taken con- that, you play just Before let me state that junction interrogation where the I admitting am the truth for officers informed this defendant the evi- [sic] statement but what the witness given. dence co-defendant had played defendant, Cargill, David tape played, And there was also that brother, Tommy Cargill, that his said on confrontation, then there was a face-to- tape; jury and I’ll ask the to consider face, between defendant and broth- only police this statement to show what the following er. And that the statement was defendant, played to the Cargill, David given. for the truth of the statement. presume, course, We jury fol part parcel It is the voluntariness. lowed this instruction. See United States satisfy required We are this Chandler, 1073, 1088 Cir.1993) 996 F.2d Court of the voluntariness of that state- (“The jury presumed to follow the instruc ment, satisfy but we also given.”), tions cert. as to that. And don’t feel that we can do 1227, (1994); 129 L.Ed.2d 848 in any fashion reasonable unless and Brown, United States v. 983 F.2d until go we’re allowed to into the entire (11th Cir.1993) (applying well-recog “the circumstances that statement. presumption nized that a follows its July At hearing the trial court instructions”).16 not, The trial court did how motion, denied adopting the reason- ever, give cautionary instruction concerning ing prosecution: testimony Tommy prodded Lovell’s Car- say I want to gill Court will not let the to admit was the “one that shot alleged them,” statements of the defendant’s purportedly the other brother in for the truth of those state- violative occurrences outlined above foot ments; however, reading the Jackson note thirteen. This is not surprising, though, Marsh, trial, *9 16. As joint stated in v. jury Richardson 481 U.S. even if the is instructed to consid 200, 207, 1702, 1707, S.Ct. only 107 against 95 L.Ed.2d 176 er the confession the codefendant.” (1987), Supreme added.) “Bruton, however, recognized (Emphasis Court “a narrow distin is exception principle” guishable to this v. [Cargill’s] Bruton United from the here. situation States, 123, 1620, 391 U.S. 88 joint S.Ct. 20 L.Ed.2d trial was not a trial. Two defendants were (1968), holding 476 deprived being by "that a defendant is not tried side side as were in right Beto, 516, of his (5th Sixth Amendment of confrontation Bruton." v. F.2d Hoover 467 530 facially Cir.) (en banc), denied, 1086, incriminating when the confession of a cert. 409 U.S. 93 703, non-testifying (1972). codefendant is at introduced their 34 S.Ct. L.Ed.2d 673

1375 fact, lodge by the is a informant lawyers ob- trier of reliable Cargill’s failed to because any of these instances. not as to what has seen also as jections to what he has heard. short, July 12 ruled on the trial court Tommy’s any of not admit it would 88, 219; 400 91 at U.S. S.Ct. see also truth, but for the for their rather statements Inadi, 387, States 475 398 n. United v. U.S. showing purpose” of context “limited 11, 106 1121, 1128 11, n. 89 S.Ct. L.Ed.2d 390 Cargill objected When voluntariness. (1986) (“[M]any co-conspirator statements ie., statements, Tommy’s taperecord- of prove are not introduced to the truth of the message, admitted that state- the court ed asserted, matter and thus not within do come for its purpose for a limited ment —not hearsay____”); of traditional definition instruction to gave truth —and Street, 409, 414, Tennessee v. 471 U.S. 105 Cargill’s lawyers failed that effect.17 When (1985) 2078, 2081-82, 85 L.Ed.2d 425 S.Ct. of other objections make the admission (nonhearsay “raises Confrontation Clause court, statements, surprisingly, did not concerns”). claim of Where a constitutional was admitted not direct that the evidence not, lacking, is will magnitude cautionary purpose or limited administer context, corpus trial habeas review a court’s however, mean, This does instruction. concerning admissibility actions of evi from somehow retreated that the court had Zant, 1541, 22 dence. Alderman v. F.3d lawyers Cargill’s 12 bore July ruling. its (11th denied, Cir.), 1061, 1555 cert. 513 U.S. ruling responsibility giving of effect. 673, (1994); 115 S.Ct. 130 L.Ed.2d 606 Os per Consequently, has 1237, Wainwright, v. borne 720 F.2d any us the now contested of suaded (11th Cir.1983). for their were offered or admitted statements Nonetheless, we note that had this, Stripped Cargill’s contentions truth. of theory prevailed, Sixth Amendment we would fail, of the trial court’s admission as the found the errors harmless under the implica no constitutional evidence carried articulated in Brecht v. Abraham standard in Dut Supreme As the Court stated tions. son, 1710, 123 113 S.Ct. U.S. ton v. Evans: (1993). v. L.Ed.2d 353 See United States of deprived right of Evans was (“It Cir.) Cross, 1030, 1052 is 928 F.2d of [co- confrontation on the issue whether improper well-established that admission actually conspirator] made Williams hearsay, co-conspirator like other Confron Nei- by [witness] statement related Shaw. errors, subject Clause to the harm tation ques- hearsay nor a confrontation ther rule____”), denied, cert. 502 U.S. less error testimony tion would arise had Shaw’s (1991) 985, 112 116 L.Ed.2d 618 S.Ct. merely prove state- been used 1060, hearsay rule ment had been made. (1992); Singletary, Cumbie v. L.Ed.2d testifying prevent witness does not (11th Cir.) (applying 724-25 heard; F.2d has is rather a as to what he harmless error after Brecht standard for through proof of fact on the restriction based finding Clause violation Confrontation extrajudicial From the view- statements. Iowa, Clause, Coy wit- point of the Confrontation (1988)), oath, cert. subject to cross-examina- ness under considering After their tion, 510 U.S. 1031 whose demeanor can be observed the evi- Supreme consider all appeal [V]ou Court authorized direct 17. On taped stages th[e] trial court admitted in both "[t]he found that dence received here court Tommy Cargill pur- presented by statement of for the limited proceedings state and the totality pose showing part circum- throughout trial before un- defendant [Cargill's] which confession was stances under you to instructed consider less the Court has Cargill, We 340 S.E.2d at 908. accord made.” by the state evidence introduced certain finding presumption of correctness purpose, such evidence in which event limited 2254(d) (1994). fact. See 28 U.S.C. historical determining not be considered shall phase sentencing at the We also note that punishment. trial the court instructed follows: *10 authorities) centrality frequency, and as well as the Cargill’s enforcement until after ease, strength prosecution’s arrest, prosecutor we would explained the that “[a] “ [i.e., not conclude that the errors ‘had substan- people number of these did witnesses] injurious tial and effect or influence deter- [come forward] because were afraid ” Brecht, mining jury’s verdict.’ 507 U.S. Third, of the defendant in this case.” 637-38,113 1722-24, at at S.Ct. L.Ed.2d prosecutor police stated “told the States, (quoting at Kotteakos United Tommy defendant had told them ... 90 that the defendant had shot the folks without (1946)). L.Ed. 1557 long period reaction of time.” B. Misconduct Claim Prosecutorial Closing Argument b. Evidence and at the Sentencing Phase improper

Cargill argues prosecu- next during guilt penalty torial comments and sentencing At the proceeding, prosecu- phases probably “changed of his trial witness, Adams, tion called John jury’s of its in choosing exercise discretion County, Georgia. Sheriff of Harris Adams imprisonment between life Car- death.” Cargill disrespect testified that had a total gill prosecutor first asserts that made for law and reputation order and had a bad improper during three comments the opening community for “turbulence and vio- phase guilt emphasized statement of the lence,” “cutting people” stealing and re- dangerousness his and thus contributed to ceiving property. stolen Cargill called five jury’s propensity him sentence sister, mother, witnesses: his two former prosecutor death. He also contends mother, neighbors and a minister. improper during made several comments Cargill, Marthareen testified on direct exami- argument sentencing proceed- in the youth Cargill nation that as a awas “fine ing, egregious constituting with most boy” obedient, helpful quiet, diligent. — impermissible potential comment on his She described her adult son as hard-working parole.18 claim, analyzing Cargill’s Before generous. In concluding testimony, her provide background relevant factual “[p]lease she asked mercy have applicable and outline the standard of review. my During son.” his cross-examination of Cargill, Ms. elicited that Car- Background 1. Factual gill fight dogs liked to and had once “cut” his Opening a. at Statement the Guilt Phase Larry sister, brother with knife. mentioned, Cargill As contends that Cannon, boy Marsha testified that her improper made three remarks loving, brother was considerate and never during opening statement of the trial. any trouble. Cannon described her brother The first is as follows: years supportive his adult sibling show, The evidence will while talking we’re son, one who lent assistance —financial and why Whitley, about Richard he’s family otherwise —to members. She told the others], [Cargill, among these folks I don’t jury, life; “Please don’t take his let him live.” know, Whitley but that was a successful cross-examination, On acknowledged Cannon contractor, businessman, relatively that her brother had received “substantial wealthy, got that he involved with in January fine” 1985 from County Harris according folks best informa- authorities for “throwing beer bottle tion prob- that we on discussing some patrol,” state drugs. and had used One of lems that with a former wife and neighbors, the former had known that he wanted this former wife killed. years, twenty about him described as a addition, stating “pretty good after that witness Holler boy” “quiet and non-violent —a (i.e., did not “come forward” type” contact law who “minded his mother and father appellee correctly asserts that did his brief to this court that are not hereinafter corpus petition (1) not raise in his habeas all were discussed found to be either asserted for allegedly improper appeal, remarks on which he now cognizable, the first time on and thus not Any (2) relies. comments that cites in innocuous. *11 penalty and a death contend with when ex-neighbor testi- good.” The other pretty child; given type thing, being was not a headline pleasant, quiet Cargill was a that fied crime, saying was no And I’m not there any in kind seen that he had never day Ml of it after papers but the weren’t hard-working and Cargill was fight; that day day of day after after heinous crimes. lent Cargill had parents; and that obeyed his you go I that criminals who out submit Cargill’s final wit- money times. him several acts, one, do these number feel like minister, and ness, about testified a local they’ll get are so smart never that relationship developed had with he and, two, pun- they’ll be caught; number this arrest case. subsequent kind, very fashion. It will ished in a modest be was minister testified inconvenience, just the overhead visits, like and during their thoughtful and cordial bill, business, and paying for a electric “very correspon- nice” written some try again. it cross-examination, will over and over Deter- the minister dence. On know, you I will tell I don’t but Cargill family be- rent? although the stated by your sincerely I it. If and believe church, he had never met Car- longed his appropriately for ap- punishing this defendant Cargill’s arrest —when the gill until after armed two murders and these two to meet him. pellant requested from deters even individual robberies argument, his outset of Near the crime, by grace then doing similar jury: prosecutor told the purpose. For this it has served its God select between will have to elect or You that he has for the acts has done defendant penalty the life sentence. the death He among to be us. has right forfeited his obviously encouraging the death areWe his live. So do right to seldom forfeited is no revelation. We penalty. That and not one we see crimes so cold-blooded you and some remarks to going to make fired into the but two bullets heads. experience, based you, based on show After, discussing among things, other crime, based on circumstances of this crime, denigrating the circumstances of the why of this defendant the circumstances in this case and of rehabilitation relevance punish- appropriate be we feel this to “emotionalism,” justifying his ment. sentencing testimony at the discussed Later, purposes describing some after proceeding: punishment, the addressed behind John brought on Sheriff Adams We of deterrence: the notion reputation, you told about defendant’s child, you punish one another child sees If bad, for tur- reputation example. put hand He doesn’t violence. That’s what bul[e]nce flowerbed, or jar, in the in the cookie walk stabbing and cut- fighting have to call a million tres- one of a thousand and thing. It’s a bad ting that kind of get into. We have passes that kids can also as to the reputation. testified We—he court with deterrents. consider things like larce- reputation defendant’s it a bit ridiculous On one level sounds get the one sister forth. We did ny and so punish him say, punish man and if we finally, you tell say out and about to come somebody might stop appropriately that it Now, you’re what that’s drug abuse. doing it makes sense. this. But else from boy good passing This old on. is studies I don’t know. There been passing His mother you’re on. going to pen- say death folks that the done. Some She him. That evidence. loves deterrent; not. say that it’s alty’s a some begging, If wanted begged for him. I’ll tell as this defen- I don’t know. begging; some given we could’ve concerned, one, it will cer- number dant’s way ought to be done. that’s not the doing tainly this defendant ever deter knew two, sister said she history ... The defendant’s again. Number what he did man, January pay us, of that fine he was I am not an old while tells County. mother testified. She Harris His were a lot sim- can when times remember boy. She good little us he was things like this told pler we did not have when *12 anything grew he ing, didn’t tell us about once “Is all jury thought my up. emphasized things But we some daddy had mama and because that man is sit- knew, already dog- that he was a ting we off eating somewhere tur- Christmas sport.... fighter, compassionate a And key dinner?” she further testified that he cut his Thereafter, prosecutor pre- discussed brother one That’s time. because regard meditation and lack of tool, just coming at him with a tire life; descriptions human assailed of Car- time. kind; gill as mag- cordial and addressed the up helped He there. He sister crime; nitude and described func- Look, gave money. her out. her move He spoke tion the verdict form. He then this not is blood. And there’s a crime in aggravating about mitigating factors. overlook, going world blood is latter, prosecutor As to the said: mitigate, is going going say is treatment, special does not some deserve Mitigation things notice the —and anybody matter what does. So the talking we’re about don’t affect the crime. happens proves mere fact that that noth- They just heighten severity either of it ing. person because of what lighten is or impact of it. The Judge going is briefly mentioning appearances After charge you Mitigation, about this. neighbors, prosecu- two former you’re mitigating to consider factors. tor continued: Now, mitigating you what factors have in preacher. [A]nd then we came to the This case, I don’t know. [Defense counsel] is not the first time I’ve stood in front of a going you. you’re is to tell But to consider crime, jury for a and there’s heinous al- aggravation, the evidence in aggrava- ways judge; always a there’s a court re- tion, the mitigation.... evidence in porter; defendant; always there’s a always attorneys; there’s defense there’s Next, prosecutor stated: always prosecutors; always and there’s up here, When gets [defense counsel] he is preacher. why I always don’t know going encourage you give a sentence preacher, have to have a everybody of life in penitentiary. Why is this not jail in gets gets into trouble has appropriate? I’ve touched it before. got dispar- to find the am Lord. And people by acts, Some their and I’m not aging a true fundamental belief God stuff, getting into that textbook have mere- Christ, you or god Jesus whatever be- ly right forfeited their They to live. have express lieve I will in. some reservations. shown again heart —and is once I will disparage religion, acute onset where language Judge gave you, McCombs people try Almighty just to use God like a abandoned, heart so malignant, so that is wrench, monkey you’re trouble, when only appropriate punishment. I’m not it, you’ve it; got you go get to have telling you that a life sentence pipe’s when the fixed or when the trouble’s penitentiary any piece you of cake. If over, you put right it forget back and until put a young prisoners, defendant in with the next time need it. it, going pass he’s to tell them how to do prosecutor The ensuing then made re- poison off his to them. Let me ask marks: this. How would like be a correc- His Almighty salvation and what God tional officer in an institution with that does to him for what he’s done does not inman there with a life sentence and us, society concern a right has to de- knowing he wanted to leave? price pay mand that he for the events that he has appropriate price continued, done. Is the stating that imprisonment, life years years and 10 or 15 jury’s sympathies should with side the vic- is, years or ever how long families, seven or five tims and their Cargill. and not His years, boys when a again bunch of little final importance remarks stressed the sitting around the Christmas table think- of deterrence. Brooks, lenity.” F.2d at 1400. We of Review

2. Standard objection the lack also consider while “Arguments delivered examining impact prosecutor’s of a clos authority in the cloak state wrapped ing “may argument, the omission demon impact jury. For this heightened defense counsel’s belief that the live strate reason, ... misconduct despite argument, appearance its in a cold carefully.” Drake must be scrutinized *13 Brooks, record, overly damaging.” was (11th Cir.1985) 1449, 1459 Kemp, 762 F.2d 19; 762 F.2d 1397 n. see Davis v. at also (en denied, 1020, banc), 478 106 cert. U.S. Cir.1994) (11th Zant, 1538, 1551 36 F.3d n. 20 (1986). 3333, Improper 92 L.Ed.2d 738 S.Ct. (“The object failure to can sometimes serve ha arguments compel will prosecutorial clarify an ambiguous record as whether however, relief, corpus they unless ren beas particular argument misleading in was fact sentencing proceeding the dered defendant’s prejudicial.”). This Kemp, or court also evaluates v. “fundamentally unfair.” Brooks (1985)(en banc), argument 1383, 1400 counsel’s whether “defense 762 vacated F.2d 1016, damage ... the grounds, ameliorate[d] 478 done to on other U.S. (1986), reinstated, 3325, prosecutor’s 809 92 L.Ed.2d 732 defense [statements].” Cir.) (en denied, (11th banc), Davis, 1551; Brooks, cert. 700 at 762 F.2d 36 F.3d see also 3240, 1010, 107 744 Moreover, 97 L.Ed.2d 483 S.Ct. U.S. F.2d at 1397-98. we consider (1987). inquiry, must making In this we they jury, trial court’s instructions to comments improper determine whether remedy improper of “may effects comments.” as to a reasonable egregious “were so create Brooks, And, course, 762 F.2d at 1400. we changed outcome was probability that weight guilt consider the evidence Brooks, 762 F.2d 1403. of them.” at because aggravating mitigating factors. See probability” A is one sufficient “reasonable Brooks, 762 F.2d at 1415-16. “A court need in the outcome. Wil undermine confidence specific arguments whether determine Cir.1985), (11th 621, F.2d Kemp, son v. 777 623 whole, if, proper improper or taken as 1153, denied, 476 106 rt. U.S. S.Ct. Brooks, ce 762 require would not relief.” (1986). reviewing 2258, “If a 90 L.Ed.2d 703 n. standard of at 1403 31. With this F.2d that, improper court is confident absent mind, Cargill’s specific in address review we remarks, jury’s been decision would have allegations. different, be said to proceeding cannot fundamentally unfair.” Tucker have been Specific Allegations 3. (11th Cir.1986) Kemp, 802 F.2d 1296 (en denied, banc), 107 480 cert. U.S. Opening at Guilt Phase a. Statement (1987). S.Ct. correctly argues standard, re applying this we improper prosecutor made three remarks primary importance of main aware of the during opening statement of trial.19 pro examining context of the trial the entire Georgia Supreme As Court held direct Thus, Brooks, F.2d at 1413. ceeding. 762 appeal, prosecuto reviewing not assess court should prosecut- highly improper for the was isolation, [i]t in shorn of their rial comments opening in attorney to have stated ing Wainwright, context. Johnson v. See Whitley in- Cir.1985) “got argument Richard (evaluating F.2d according to the these folks volved with light “the challenged comments in rest discussing we have on best information prosecutor’s speech”), cert. problem wife he had with a former some 98 L.Ed.2d wife this former wanted ambigu regard, “In this isolated implication was that killed.” The here unintentional remarks must be viewed ous or prosecutorial improprieties ceeding, at the Cargill argues improper comments 19. that these violent, sentencing "alleged phase guilt involvement various in its [his] can affect Brooks, dangerous therefore infected the activities” and at 1403 n. See F.2d determination. sentencing. jury's Again, as to determination 30. judicial pro- of the entire consider the context Whitley got appellant jury.” Moreover, involved 340 S.E.2d at 910.20 dur- statement, wife killed. ing because he wanted his opening that; asserted Cargill, 340 S.E.2d at 909. The any allegation, never offered evidence Opening statements are not evidence. event, and, constituted a refer- “[t]his am anything not witness to that will be crime, an unrelated and it would ence to crimes, testified to. I did not see the was certainly appear that evidence of this crime part investigation not a than other would not be this trial.” 340 admissible perhaps advice, advice, giving legal little Similarly, S.E.2d at this; “Do have to do do do improper prosecuting attor- that?” that won’t even hear about. opening ney argument have stated in lawyers [The other ... are case] that, [police] ... “[t]hey went over and not witnesses. What we junc- do Tommy told the defendant that told *14 trial, trial, any ture of or [this] other them ... that the defendant had shot the come before and tell what we any long period reaction for folks without expect to from having [the] evidence show hearsay testimony of time.” Such witnesses____ to talked interviewed an[d] introduced, sought never to it is be purpose of opening [T]he this statement is highly questionable whether would be not be evidence but to allow to aspects---- its nonhearsay admissible for follow the evidence. (alterations at 340 S.E.2d and first two ellipses original). Similarly, The third comment during opening Cargill’s coun- Cargill complains about which a num- jury sel opening twice told the that the state- —that ber witnesses did not come until forward ments did not constitute evidence. On the they after his arrest because feared him— occasion, second the jury admonished “although improper, was also not the same you’ve just “[w]hat heard from us is not degree previously as the statements re- guilt phase, evidence at all.”21 At the “Although viewed.” S.E.2d at 909. judge trial instructed the that “[e]vi- believe, at is not all [comment] difficult to no testimony dence includes all the of the wit- support [to evidence was introduced.” it] nesses and the exhibits during admitted at 340 S.E.2d 909. trial. It does not include the or indictment Cargill’s the opening We note that trial not closing argu- counsel did statements and object any remarks, by attorneys.” of these ments sentencing and thus “the At the given opportunity phase, trial court was not judge instructed the that in attorney prosecuting give making admonish the sentencing its determination it was appropriate corrective instructions to the “authorized to consider all the re- evidence 20. Despite objection, Georgia ing arguments part the lack of at least in due to concerns Supreme Court reviewed courtesy these remarks to deter- about decorum. "Such should be mine "[w]hether sentence death improper was im- argu- maintained in the face of an ... posed ment; passion, prejudice, under the influence of easily by errors can cured more a trial any arbitraiy or § following objection by other factor.” O.C.G.A. 17- court instantaneous than 35(c)(1)(1982). reviewing laboring The court found that court "[t]he discern effect of 10— printed Brooks, appellant's guilt upon evidence as to the jury.” was over- words an unseen whelming, appellant F.2d at showed that cold- 1397 n. 19. bloodedly remorselessly executed two indi- lawyers viduals in order to eliminate them as witnesses 21. Both also made similar statements robbery.” closing an armed 340 S.E.2d during arguments guilt at 910. The phase their at the court concluded that the remarks "were so of the trial. counsel stated that "what offensive, prejudicial, egregious require reminder, lawyers] say you, as to [the as a is not reversal the death sentence” basis of evidence.” The also reiterated that 10—35(c)(1). section at S.E.2d In ”[w]hat I've said is not evidence.” 17— appellee appeal, procedural makes no any counsel did not address of the argument concerning default these instances of challenged opening three pros- remarks —and the misconduct; rather, prosecutorial he addresses ecutor’s failure during to substantiate them— allegations on merits. argument closing guilt phase. at the Given the remarks, Cargill's lodge objections did counsel dur- may content of the been ing prosecutor’s opening statement and clos- wise tactical decision. lieves, stages improperly of the “com- in both here in court ceived possibility parole,” mented on the and this by presented the state and proceedings misleading comment was because under defendant.” 42-9-39(c) consecutive life sen- O.C.G.A. short, these question exists that for of his four tences each felonies would cir- improper. Several three remarks were ineligible parole him have rendered cumstances, however, lead us to believe that years.22 thirty least First, overly de- prejudicial. were not interpretation reject Cargill's We object failed to fense counsel First, remarks several reasons.23 Second, prosecutor and both the comments. prosecutor’s remarks were not an inaccurate repeatedly stated clearly and defense counsel applicable As comment state law. opening did remarks that their found, corpus court state habeas “had Finally, trial not constitute evidence. charged counts of murder been two to the same gave court distinct instructions robbery. two counts of armed minimum effect. robbery law sentence allowed for armed imprisonment. years is five Closing Argument Sentencing at the b. 16-8-41(b).” Therefore, Sec. as the O.C.G.A. Phase determined, court further “a life sentence for on Parole i. Potential Comment years prison and from murder 15 to five *15 objection Cargill's most vehement is not be an inaccurate statement of the would is, course, prosecutor: exactly following of the law.”24 of what to the remarks That prosecutor appropriate price said —“Is the Almighty God salvation and what His years years imprisonment, life and 10 or 15 to him for what he’s done does does is, long years or or ever how seven five us, right society a to de concern for has years liberty ... ?” We are not at to chal price events pay that he a for the mand of lenge this state court determination state price appropriate he has done. Is the that Sharpe, law. McBride v. 25 F.3d years years imprisonment, or 15 life Cir.) denied, (en banc), cert. is, years long it seven or five or ever how boys, years, a of little when bunch table think sitting around Christmas Moreover, reading challenged a fair of the my jury thought ing, all that of “Is that prosecutor was remarks reveals that the at- daddy that man is sit mama and because convey gravity of crime tempting to tur eating ting off somewhere Christmas of consequences murder and its —the key dinner?” par- boys young left four without Williamses imprison- jury that life ents —to convince the insinuation of Cargill argues that clear “[t]he five, ie., ment, allowing Cargill to continue was that the could not these comments “pro- be too lenient a sentence. would in im- upon resulting life sentence count a argument a consistent portionality” According Cargill, prisonment life.” for prosecutor’s closing. throughout theme prosecutor “intentionally pointedly example, speech, he stated: Later his its argued to that choice was death, compassion, imprisonment If show some life between compassion family for a that years’ as five show some perhaps rather few between Thus, absolutely no Cargill be- has lost two members for imprisonment and death.” accurately expressed, corpus "[n]o person a life court 22. “When receives consecutive sen- habeas occurring prosecutor pardon, by result in the tences as the of offenses made mention was any acts one of the life sen- same series of parole clemency.” or other murder, imposed for the crime of such tences is ten-year periods person shall serve consecutive impose judge could concurrent sentences 24.The sentence, up to a maximum of 30 for each such robbery to run consecutive- for the aimed counts being parole years, eligible consider- before ly sentences for the murder to concurrent life 42-9-39(c) (Supp.1984). O.C.G.A. ation.” We note that the court sentenced counts. twenty years imprisonment on each Preliminarily, that must base note robbery counts. because, armed argument as the state insinuation your go If heart has to out to robust. You have reason. heard the testimo- society somebody, go let it out to a that ny dramatically. changed that he has As you represent that demands that this de- now, you can see he’s a bleached and worn punish- appropriate that fendant receive was, previously he shadow what even given, compared that he be ment and not jail. being county Being here in the sen- committed, he what amounts to the crime penitentiary, tenced to the as even the judicial slap wrist, more than attorney way district he character- imprisonment. of life A sentence sentence it, very ized is no bed of roses. It’s sentence There’s no is a of life. of life penalty; harsh and severe such between this one and one that’s difference by you, sentence is that voted does accom- robbery that not taken done armed has plish attorney what asking, the district is life, rapist, to a murderer who —to that right is that he has forfeited depraved so has not a mind shown is, be, among by to be us. That will one. your imprisonment, placed verdict life an argument Here the made com- in prison the remainder his natural parable Cargill challenges— to the remarks accomplish You goal life. gravity of the offense warrants a attorney which district has asked sentence; imprison- death sentence of life to. ment, i.e., live, letting Cargill light. is too Kemp, See Tucker v. 762 F.2d We also note made an- (11th Cir.1985) (en banc), cert. not telling other remark in his —“I’m L.Ed.2d 743 peniten- that a sentence in a life (1986) (prosecutor’s improper argument tiary any piece appears cake” —that parole prema contravene thesis. remain board We would release defendant guideline adopted in mindful of the turely effectively Brooks “was countered defense prosecutorial ambiguous remarks “must argument counsel’s [the defendant] *16 lenity.” 762 be viewed with 1400.25 F.2d probably again”). never be released Finally, the jury court instructed the con addition, Cargill’s we note that counsel life cerning imprisonment as follows: contemporaneous objection did not make a Instead, challenged remarks. defense Now, jury, you may members of the object counsel move waited and for a return of penal- two verdicts as to prosecutor mistrial until after the fin- had ty imprisonment, you this case. Life closing argument, ished his defense counsel ‘We, may reads, return a verdict which given closing argument, his the court jury, fix penalty imprisonment,” at life jury its had rendered instructions and the in which event the defendant would be Furthermore, jury had retired deliberate. sentenced to serve the remainder his of closing argument of counsel was penitentiary. in the life ameliorative: Accordingly, agree we do not heard, attorney, The as district stat- assertion that of “none the factors mini- Cargill mercy; ed that showed no David so prejudice” Indeed, mize exists here. after a mercy him. And I submit to thorough review of full of context imprisonment that a of sentence life is not mercy. sentencing proceeding, showing It we sentence im- conclude that the of prosecutorial prisonment prej- rest remarks at When issue were not life. arrested, he first was he was tan and udicial.26 lightly pros- "[A] court should infer that a 26. We hold that these comments were not ambiguous its, ecutor intends remark to have prejudicial in the context We case. ac- damaging meaning jury, or most that a sitting knowledge that under different circumstances n exhortation, through lengthy will draw misleading tja»l' such remarks could have a effect on a meaning plethora damaging less 'in- jury. Christoforo, terpretations.” Donnelly v. De 637, 647, 1868, 1873, L.Ed.2d note, however, although Cargill’s Expertise counsel ii. of Prosecutorial Invocation (not objected contemporaneously, but after argues that next deliberate) jury had retired to to several exper- “prosecutorial improperly invoked alleged prosecutor’s instances “com- jury to believe that this asking tise” in ment[ing] ... upon evidence he did not intro- penalty. appropriate for death case was This, duce,” this of them. was not one below, well as factors discussed other indi- (a) Example First us cates to that the remark—considered in improper The first instance here prosecutor’s the context of the entire was, it, prose “[t]he describes much, argument—did any, preju- not have alia, based, jury inter cutor told dicial effect. ‘experience [death] ... we feel be the ” argues prosecu also that the punishment.’ Cargill pulls the appropriate improperly expertise tor invoked his when setting. prosecutor’s assertion out its commentary: making following fol statement was as actual context of this preacher. then we came to the This [A]nd lows: is not the first time I’ve front of a stood or select between You will have elect crime, jury for a heinous and there’s al- life sentence. penalty and the death always a ways judge; there’s court re- obviously death encouraging We defendant; porter; always there’s penalty. That is no revelation. We are attorneys; always defense there’s there’s going make some remarks prosecutors; always always and there’s experience, based on you, based on show preacher. why always I don’t know crime, based on the circumstances of preacher, everybody to have a have why defendant circumstances gets jail gets into trouble has appropriate punish- we feel this to be the got dispar- I am to find the Lord. And ment. aging true fundamental belief God totality, remarks were in their Viewed Christ, god you or whatever be- Jesus agree appellee with the improper. We express in. I lieve will some reservations. merely prefacing that “the religion, disparage acute onset where will on which a death sen- underlying bas[e]s Almighty just people try to use God like imposed clearly let the tence should be trouble, wrench, monkey you’re in when that it was a decision [know] it; it, you go get you’ve got to can- Consequently, these remarks to make.” *17 pipe’s the fixed or when the trouble’s when to constitutional not contribute over, you put right forget it back and until (com- Brooks, at 762 F.2d 1408 claim. See you next need it. the time improper “can never that are not ments comments, objected Defense counsel to unconstitutional”). non-contemporaneous though in fashion. (b) Examples and Third Second commentary Assuming that arguendo Kemp, improper, but see Bowen 769 Cargill’s argument as to two other was (11th Cir.1985), however, reinstated in comments, Cargill 680 has more force. F.2d prosecutor part, 832 F.2d 547 n. accurately the had no relevant asserts that (en Cir.1987) banc), cert. support “[s]o for his statement that record (1988), 970, 108 its so L.Ed.2d seldom do we see crimes cold-blooded and Although is from clear. prejudicial effect far but fired into the heads.” two bullets remark, prosecutor not have referenced “invoking expertise should This experience and other cases not evi suggest special to prosecutor seriousness Tucker, dence, appellee that the we with the crime, improper.” agree was “to Brooks, focus the 1505; 762 F.2d thrust of his statements was F.2d at see also (“The [Cargill’s] invoca jury’s on whether improperly suggested attention argument This, genuine.” religion was all murder tion of that the had canvassed course, pros legitimate subject for the was a particularly cases and selected this one penalty____”). ecutor to address. deserving of the death We convinced, whole, special treatment, On the we after re- does not deserve some totality prosecutor’s viewing the clos- no what anybody matter So does. ing argument, happens defense counsel’s mere proves that that noth- fact jury, ing. “the court’s instructions that misperception no to its labored under put We also forth the third statement role; jury clearly understood that it objects Cargill which in its broader context: responsibility deciding alone bore Mitigation things notice the [Cargill] live die.” whether should —and talking we’re about don’t affect the crime. Brooks, 762 F.2d at They just heighten severity either of it person because of what or lighten is Mitigating

iii. Comments on Evidence impact of it. Judge going is Cargill pros also contends that “the charge you about this. Mitigation, falsely improperly ecutor told you’re mitigating to consider factors. Mr. dur the information offered Now, mitigating you what have in factors ing sentencing phase did constitute case, I don’t [Defense know. counsel] mitigating evidence.” cites al three going you. you’re is to tell But to consider instances, legedly violative we two which aggravation, aggrava- the evidence in emphasize following excerpt: in the tion, mitigation____ the evidence in brought We on Sheriff John Adams you reputation, about told the defendant’s surprised We are not that Cargill’s counsel bad, reputation and that tur- was objected never to these statements. These and violence. That’s what we conveyed prejudicial comments message bulence fighting stabbing to call and cut- jury only mitigating evi- — thing. ting and that kind of It’s a bad presented dence was of little force. reputation. We—he also testified as to the also We note that the went on to things reputation defendant’s larce- like say, discussing aggravating mitigating ny get and so forth. We factors, did the one sister say finally, come out tell about question, is not a [t]here there not a Now, drug you’re abuse. that’s what but [Cargill] doubt was engaged in an passing good boy on. This is the old robbery armed while he committed two you’re going passing to be on. His mother murders, and that engaged he was in a him. loves That is not evidence. She murder when he committed the murder. If begged for him. begging, wanted Well, case, if that’s the does that end it? given you begging; could’ve some No, reason, because reason or no way that’s not ought be done. factors, mitigating can find them ... The defendant’s sister said she knew evidence, from this from the crime that January was pay that fine he committed, presented from what was County. Harris His mother testified. She you by case, the defense in mitigat- us a good boy. told he was little She *18 ing wipe factors can out statutory these anything didn’t tell us grew about once he aggravating circumstances are not up. emphasized things But we had some bound, though they even are to give there knew, already that dog- we was a penalty. say, the death You can “This fighter, compassionate sport---- And crime appropriately merits a life sentence she further testified that he cut his spite gone of all that has on since Mon- brother one time. That’s because he was day morning 9 o’clock [the time the trial tool, coming just at him with a tire jury. You commenced].” are time. helped up Finally, He had his sister He there. clearly the trial court instructed the gave Look, her move money. out. He her jury responsibility members that the of find- this is blood. And not a in ing “any there’s crime mitigating or extenuating facts and overlook, this world going that blood is to circumstances” rested with them. We con- going mitigate, not going say Cargill’s is not clude that contentions lack merit.

1385 tions, jury no we have doubt that under- Dangerousness Future iv. Comment its sentencing stood that it had to base deter- Cargill’s argument final under presented mination the evidence —with asserts that similarly meritless. He claim is prosecutor’s closing regard argument. improper reference made an prosecutor you like would asking jury, “How agree Georgia Supreme We with the Court officer in institution a correctional presented “overwhelming” that the state evi- a life man there with sentence Cargill’s Cargill’s testimony guilt. dencé v. to leave?” In Tucker knowing he wanted wholly alibi unbelievable. defense were (en (11th Cir.) 1480, 1486 Kemp, 762 F.2d Moreover, Cargill not did advance forceful banc), grounds, 474 on other vacated phase mitigation sentencing evidence at (1985), 452 88 L.Ed.2d S.Ct. And, “[although of the trial. instant (11th Cir.1986) (en reinstated, F.2d 1293 among egregious is not the most cases case denied, banc), cert. imposed, has been penalty in which the death (1987), this court held 94 L.Ed.2d egregious.” among neither is it least similar remarks to the prosecutor’s that a Brooks, 762 F.2d at 1416. guards jury what about —“Now sum, conducting an after exhaustive there? The guarding him down would be case, in this con- review the record we be, course, exposed to guards would that, clude, confidently, prosecutor appropriate “an means him[]” —constituted improper made the comments identified of Tucker’s pointing possibility out the above, jury have rendered the call dangerousness and did not future Cargill’s same sentence. Car- verdict prison speculative inquiry into conditions.” gill’s sentencing proceeding was funda- 4. Conclusion mentally unfair. improper re- three made Counsel at C. Ineffective Assistance of opening his statement during marks Sentencing Phase these com- guilt phase the trial. While we convinced prejudiced Cargill, are ments Next, Cargill’s we conten address so prejudice was not severe as that the as rendered ineffective tion his counsel First, unfair. the remarks render the trial phase his during sentencing sistance object compel Cargill’s counsel did not lawyers argues failed trial. that his them, contemporaneously or before either investigation his reasonable into to conduct a taking of evidence. commencement background to uncover and thus “failed Second, both the mitigating evidence.”27 massive amount of comments told the their counsel assis provided ineffective Whether counsel closing argu- opening statements and during question of fact and presents a mixed tance Third, not constitute evidence. ments did plenary review. over law which clearly instructed the the court (11th Thomas, F.3d Baxter v. comprise evi- lawyers’ comments did — U.S. -, Cir.), cert. dence. 385, 133 L.Ed.2d 307 found one instance where We have also duty attorney to con “An has expertise prosecutor improperly invoked including an investigation, duct reasonable impropriety of another such assumed background, investigation of the defendant’s however, satisfied, invocation. We possible mitigating evidence.” Middleton penalty phase remarks at Cir.1988). Dugger, 849 F.2d In- prejudiced Cargill only slightly, if at all. assertions, trial Contrary deed, im- comment that we have held *19 not fail to undertake reasonable counsel did objection bring from Car- proper did not Af sense. investigation in the constitutional totality considering After gill’s counsel. evidentiary a full and fair conducting ter closing argument, defense prosecutor’s Cargill’s current counsel hearing which jury instruc- closing and the court’s counsel’s —at of this evidence.” sister knew "most that his mother and admits 1386 specific 776, 794-95, pursue great 3114, this claim 483

did not with U.S. 107 S.Ct. corpus (1987). habeas vigor 3125-26, state court found 97 L.Ed.2d 638 Conse- —the that: Cargill’s quently, ineffective assistance Petitioner, claim Counsel obtained names fails. mother and from Peti-

from Petitioner’s D. Batson Powers Claim tioner’s sister. The record shows that presented defense the testi- [lead counsel] alleges pros also that the mother; mony of the Petitioner’s Petition- “purposefully ecutor against discriminated Cannon; neighbor sister Ru- er’s Marsha petit jury” blacks selection Morris; Lloyd Dupree; dolph friend through use peremptory challenges Reverend Steve Vann who had ministered and thus violated the Fourteenth Amend to Petitioner while Petitioner was incarcer- pursuant ment Kentucky, to Batson v. 476 subpoenaed ated. Counsel had also some 79, 106 1712, (1986), U.S. S.Ct. 69 L.Ed.2d ultimately uti- individuals who were not Ohio, 400, and Powers v. 499 U.S. 111 S.Ct. they help- lized at trial as were either “not (1991). 1364, Cargill’s 113 L.Ed.2d 411 con us____” ful or declined assist These 23, 1987, viction became final February Braswell, included Ken when who asked to the date Supreme the United States Court testify on Petitioner’s behalf indicated he petition denied his for writ of certiorari on involved;' Donny not did want to appeal. Kentucky, direct See v. “just Donna who flat Ballard told us Griffith 314, 6, 708, 712, 321 n. 107 S.Ct. come”; would not Randall Colter “would (1987). Therefore, L.Ed.2d 649 the rule of Trim; phone”; come to the Wilbur Equal Powers —that under the Protection Leroy Napier; Jerry Beckwith who “did object Clause defendant standing has involved”; want get and Petitioner’s jurors through per race-based exclusion father, Sr., Cargill, Lawrence was emptory challenges whether or not the present at de physical trial who “had a jurors fendant handicap” physi- ... either was not excluded share the [and] only same cally applies able or ... think did not he was it has race — physically testify---- Cargill concedes, able de- retroactive effect. As [Lead “attempted every- fense court has counsel] contact held that Powers “announced a body thought helpful, we would be and it ‘new rule’ of law applied that could not be just couple seems like there were a we retroactively on collateral review.” Farrell of____ Davis, get (11th Cir.1993). 370, couldn’t hold There were one v. 3 F.3d two, but most of them me.” Cargill panel Farrell; talked to asks this to revisit [Cargill’s lawyer] try other did to contact we cannot do. The law of this circuit is potential mitigating witness whose “emphatic” Supreme Court or sister, given was him name Petitioner’s sitting judicially court en can banc over Marsha The individual was iden- prior Cannon. rule a panel decision. United States v. Cir.1991), grown up having tified Petitioner Woodard, 1255, (11th 938 F.2d say “okay” and would but when denied, rt. 502 U.S. ce 1210, 117 Petitioner, about asked she indicated that L.Ed.2d 449 my Petitioner “hit husband the head once”[;] gun with a that was all the individ- E. “Cumulative Error” Claim ual knew and counsel call elected n her. Finally, because we believe that (Citations omitted.) state-court trial fundamentally was not un We accord these find- fair, ings the presumption of decline his invitation to correctness. See entertain a 2254(d) (1994). 28 U.S.C. “cumulative cir- error” claim in Der discussed McNeel, case, cumstances den v. investigation of this 978 F.2d 1456-61 Cir.1992) (en banc), denied, trial performed counsel was “not cert. 508 U.S. outside the range professionally (1993), wide competent Middleton, assistance.” Engle, 849 and Walker v. 703 F.2d 963-69 493; (6th Cir.), F.2d at Burger Kemp, see also cert.

1387 possibility Cargill’s parole the of release on 327 and 78 L.Ed.2d (1983). years within five to fifteen to rather the by Cargill, fact that if sentenced to life the murder, IV. CONCLUSION jury for could receive additional robbery for of sentence armed between five in carefully the record reviewing After years, by and fifteen as determined reasons, case, conclude, foregoing for the judge. majority quot- Because the reads constitutionally was not Cargill’s trial law, accurately stating Georgia passage ed as lack Ac- and that his claims merit. deficient prosecutor’s it concludes that remarks judgment of cordingly, we affirm improper prejudicial. nor I were neither district court. respectfully disagree. AFFIRMED. majority’s I technical concede that KRAVITCH, Judge, Circuit Senior parsing prosecutor’s closing argument of part: part dissenting in in concurring however, plausible. agree, I cannot majority’s quoted that the assertion re- majority portions of the I concur improper. prosecutor If the marks were not district court’s denial of opinion affirming the possible Cargill’s intended to refer to release respect Cargill’s convic- habeas relief with parole, clearly the remarks would have however, dissent, respectfully tions. I § improper. been See Ann. 17-8- Ga.Code of majority’s affirmance of denial 76(a) (1990) attorneys (prohibiting from in- I dis- sentencing as to because habeas relief jurors possibility clemency, of forming of what, majority’s agree with the treatment pardon, parole).1 if the or Even view, my improper closing remarks were the additional sen- intended to refer prosecutor. Because I conclude made for tence that would receive armed ren- improper closing remarks persons, robbery, jury lay doubt proceeding sentencing fundamen- dered the explanation, have un- without further would unfair, I tally would reverse the district Rather, I believe derstood this reference. sentencing. court’s relief denial a substantial dan- that these remarks created sentencing phase During jury believing ger that a would be misled into trial, jury: prosecutor told the that, life, Cargill could be sentenced Almighty what [Cargill’s] salvation and serving as few as prison released from after God to him for what he’s done does does years.2 five us, society right for has a not concern for pay price that he the events demand appro- questioned: “Is the The price appropriate Is that he has done. years imprisonment, and 10 priate price life years or imprisonment, and is, long it seven years life or ever how or is, long years or years ever how seven prose- ?” years years ... Because the or five boys years, a bunch of little when without refer- five cutor made this statement think- sitting the Christmas table around sentence for the armed ence to an additional jury my ing, thought “Is that all that counts, jury robbery I do not believe that daddy that man is sit- mama and because Georgia’s the technicalities untrained tur- ting eating Christmas off somewhere focus, the ma- sentencing procedure would key dinner?” does, prosecutor’s use of the jority on the added). (Tr. 1426-27) unlikely that a thus majori- word “and.” It seems (emphasis prosecutor’s jury have understood ty referring not to would reads these remarks as trial, eligible legislature required becoming Georgia before has serve 1. Since parole. argument the issue of authorized phase sentencing penalty parole of death 17-10-31.1(d) § required Ann. trials. See Ga.Code had been law State, (1993); Ga. 458 S.E.2d given Jenkins v. life on each consecutive sentences convicted, statute, (1995). been he Even under this new which four felonies for however, ineligible parole improper least have been it would be mislead 42-9-39(c) length years. Ann. would be Ga.Code as to the of time a defendant *21 Cir.1985), denied, referring previously to a unmen- remarks cert. robbery.3 (1986). for armed

tioned sentence Relying 90 L.Ed.2d 703 mainly on supposed the ameliorative effect of Moreover, prosecutor implied that the argument the defense counsel’s life, Cargill would released sentenced be trial jury, the court’s the instructions to the parole “off and would be somewhere eat- majority that prosecutor’s concludes the re ing turkey dinner” Christmas at the same prejudice marks did not I Cargill. cannot (the boys” time “a bunch of little victims’ join this conclusion. children) wondering why were the defendant By referring was released. to a “bunch of view, my In neither counsel nor prosecutor boys,” implied little the that the effectively dispelled the trial court the misim- (“off defendant would be released some- pression by prosecutor the created that Car- where”) relatively period in a short of time— gill’s “life sentence” could last few as five Cargill by for if the required served time years. life, In urging jury the to choose Georgia prior becoming law eligible defense counsel referred to a “sentence of parole, hardly the victims’ children would be (Tr. imprisonment for the rest of his life.” boys” prosecutor the “bunch of little the 1448-49). verdict, With such defense coun- addition, In described. inference that noted, sel “placed the defendant be would the defendant would serv- be released after prison for the remainder of his natural life.” ing only small fraction the life sentence (Tr. 1449). These statements describe the by prosecutor’s was reinforced reference option terms, of a generic “life sentence” in “judicial imprisonment slap life as a on the prosecutor’s and thus do little rebut 1439).4 (Tr. wrist.” suggestion Cargill that would be released Because these statements a sub- created prison years from years, “10 or 15 or ever jury stantial likelihood that the was misled is, long years it years.” how seven or five believing into anything that a sentence of Importantly, defense counsel made no refer- less than death in Cargill’s could result re- period to Cargill’s ence of ineligibility for prison lease years, as few as five parole or specific period to a of confinement prosecutor placing conclude that the erred in because he doing was barred from so. Only notes, jury. them the majority before As prosecutor referred to the number of however, improper argument prosecutorial years might that Cargill actually required be petitioner does not entitle a habeas to relief serve, and I do believe that defense that, probability unless there is a “reasonable counsel’s references to the harshness a life improper] arguments, death [the jury’s sentence from the erased mind the given.” verdict have been Brooks impression that could be released in v. Kemp, F.2d at 1413. A “reasonable years.5 as few as five probability” probability is a to un- sufficient jury’s Similarly, dermine in the confidence verdict. the trial court’s instructions did Kemp, Wilson v. 777 F.2d impression not counteract business, 3. During sentencing hearing, bill, paying neither overhead for a the electric judge prosecutor try (Tr. nor referred to this addi- again.” will over and over 1418) added). robbery tional sentence for (emphasis the armed counts. These references rein- Instead, prosecutor simply impression referred to the forced the erroneous that a life sen- penalty choice between "the death sentence,” (Tr. 1413), the life relatively period tence would in a result short judge instructed incarceration. The fact that the later "duty that it was its telling you determine within stated that "I’m life sen- prescribed punishment law limits what penitentiary any piece tence in a cake,” imposed (Tr. 1437), will be offense my negate [the] [of murder].” does not in view (Tr. 1458). impression would be released within years. five to fifteen urging penalty choose death imprisonment, over life recognized "[ajrguments also told 5.This circuit has jury: go "I submit wrapped criminals delivered while cloak of state acts, one, out authority heightened do number impact jury.” feel like have a on the and, they’ll get caught; (1985) (en are so smart Kemp, never Drake 762 F.2d two, banc), they'll punished very number in a modest cert. 478 inconvenience, will just It be an like the fashion. *22 availability punishments The only a small of alternative required to serve would be undoubtedly affects the manner in which a The trial court of a life sentence. fraction sentencing jury jurors capital if reaches its decision. merely they that were to instructed imprisonment have found that the number at “the Researchers penalty fix the life years jury a believes a defendant will actual- to serve the would be sentenced defendant is a factor ly the if sentenced to life vital in penitentiary.” his life in serve remainder of added). (Tr. 1462) jury’s imprisonment to life a choose (emphasis Because this decision Simmons, penalty. much of instead of the death nothing about how a See instruction said at actually (citing at 512 U.S. 157-58 Cargill would be re- S.Ct. life sentence study in which than becoming eligible for more 75% South quired serve before to that dispel misim- Carolina citizens indicated the amount of nothing to the parole, it did actually prosecution. time convicted murderer would by the the pression created prison in spend “extremely have to would effectively negated be trial court could have prose- important” “very important” or factor in jury that the damage by informing death); choosing to between life and James Lu- referred an additional cutor’s remarks Howe, in robbery ginbuhl Capi- it and Juile Discretion that would sentence armed Sentencing Despite objection by tal Instructions: Guided Mis- impose. (1995) 1161,1178 counsel, guided.?, (study take this 70 Ind. L.J. the trial court did not result, jurors that step.6 jury a of North Carolina revealed precautionary As death, jurors to impression who sentenced defendant was left with erroneous less than nothing 74% believed imprisonment” “life amounted serve slap years, jurors “judicial on the wrist.” whereas of sentenced more than a life, believed that he would defendant 72% view, my In the unrebutted remarks prison years); remain in for at least Theo- unacceptable risk that prosecutor created an Wells, Eisenberg Deadly T. dore and Martin jury death because sentenced Capital Juror Instructions Confusion: sentencing options. its misunderstood (1993) (“[J]u- Cases, 1, 7 L.Rev. 79 Cornell Throughout argument, prose- a rors who believe the alternative to death is jury choosing that in cutor stressed prison relatively short time tend sen- impris- life between the death sentence and who believe the tence to death. Jurors alter- “appro- duty onment it had choose longer to sentence native treatment tend improp- priate” punishment. Because of the life.”); Anthony Paduano and Clive A remarks, however, jury with was left a er Smith, Deathly Errors: Juror Mis- Stafford double false choice: sentence convicted Impo- perceptions Concerning Parole in the grant to death or him the chance murderer Penalty, 18 Colum. the Death sition of prison five being released from within (1987) (re- Hum. Rts. L.Rev. 220-25 options, two it is years. Given jurors study Georgia capital counting hardly jury chose the surprising that two-thirds indicated which over penalty. v. South Car- death Simmons Cf. impose likely to a sentence of would more olina, 161-63, at least life if “life” meant twen- assured (1994) (defendant de- ty-five years). sentencing jury process nied due because case, view, jury in my In which provided sen- with “false choice between life over had discretion to choose tencing sentencing petitioner to death and reason,8 incarceration”).7 was misled penalty death period him to limited Simmons, capital improper In the Court held that de- brought state- 6.Cargill’s counsel 7. right process to inform the has due immediately fendant after ments to the court's attention ineligibility parole if sentencing jury of his and, time, jury charge at that moved for presents prosecution argues a future dan- that he addition, beginning of at the mistrial. In 171-73, society. ger 114 S.Ct. at hearing, Cargill sought sentencing to introduce parole. ineligibility for In accor- evidence of his law, the trial court denied dance with judge made clear in its instructions 8. The trial request. complete to choose discretion extremely important respect to an sen- tencing It was to believe factor. led might away murderer walk

convicted double prison. years

in five sentenced to life

essence, impression stripped erroneous discretion, sentencing of its and thus Cargill’s sentencing proceeding

rendered

fundamentally unfair. Had the not been

misled, probability is a reasonable there juror

at least refused to Cargill to

sentence death.9

Accordingly, would reverse the district

court’s denial habeas relief

death sentence and would remand this ease

to the district court with instructions to issue setting death writ aside the sentence

unless the State affords new sen- newly

tencing proceeding empaneled before a

jury. DAVIS,

Aurelia Next Friend D.,

of LaShonda Plaintiff-

Appellant, COUNTY BOARD

MONROE OF

EDUCATION, al., et Defen

dants-Appellees.

No. 94-9121. Appeal^, States Court

United

Eleventh Circuit.

Aug. 1997. (Tr. imprisonment 1461-62). life penalty. over the death It stated: you any extenuating [W]hether or not find law, sentencing jury Under if the does circumstances, mitigating facts or are au- unanimously penally, recommend the death penalty thorized fix the in this case at life impose the trial court must a sentence of life imprisonment.... may penalty You fix the State, imprisonment. Hill v. 250 Ga. imprisonment life any see fit to do so for S.E.2d satisfactory reason or without rea- son.