William Anthony Brooks v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent

,R. LANIER ANDERSON, III, Circuit Judge:

INTRODUCTION

This case was taken en banc principally to consider two of the several constitutional claims asserted by appellant William Brooks. In Section One of this opinion, we discuss the claim that the instructions on malice at Brooks’ trial improperly shifted the burden of proof in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We conclude that there was a Sandstrom violation, and that the error was not harmless beyond a reasonable doubt. In Section Two of this opinion, we discuss Brooks’ claim that the prosecutor’s argument during the sentencing phase ¹ of his capital trial rendered the sentencing phase fundamentally unfair. We reject Brooks’ argument in this regard, and conclude that his sentencing phase was not fundamentally unfair.

In addition to the two issues which this opinion will discuss, Brooks asserted six other constitutional claims: (1) that the failure to grant a change of venue was improper; (2) that the introduction of non-statutory aggravating circumstances during the sentencing phase of the trial was impermissible; (3) that the trial court restricted the admission of mitigating testimony; (4) that the trial court’s instructions on aggravating circumstances were improper; (5) that jurors were improperly excluded because of opposition to the death penalty; and (6) that the district court’s denial of an evidentiary hearing was incorrect. The panel declined to grant relief on any of these six issues. Brooks v. Francis, 716 F.2d 780 (11th Cir.1983), vacated for reh’g en banc, 728 F.2d 1358 (11th Cir.1984). With respect to each of these six issues, we reinstate Parts IV, VI, VII, VIII, X and XI of the panel opinion.

Brooks was convicted of armed robbery, rape, kidnapping, and murder by a Muscogee County, Georgia, jury. .The evidence established that Brooks-abducted Carol Jeannine Galloway from her home, forced her against her will to drive away with him in her yellow Fiat automobile, took her to a secluded area and raped her. All this was established by Brooks’ own written confession, and was corroborated by independent evidence. In his confession, Brooks also stated that, after the sexual intercourse and after Galloway had put her clothes back on, she started screaming, and at that point he aimed his pistol at her to make her stop screaming, and that the pistol went off and hit her. Brooks fled at that point, and Galloway bled to death. Additional facts relevant to the two issues discussed in this opinion will be set out later as appropriate.

Brooks was sentenced to death on the murder charge, to life imprisonment on the kidnapping and rape charges, and to 20 years imprisonment on the armed robbery charge.

All convictions and sentences were affirmed by the Georgia Supreme Court on direct appeal. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979). On writ of certiorari to the United States Supreme Court, the Court vacated the decision of the Georgia Supreme Court insofar as it upheld Brooks’ death sentence and remanded the case for further consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Brooks v. Georgia, 446 U.S. 961, 100 S.Ct. 2937, 64 L.Ed.2d 821 (1980). On remand, the Supreme Court of Georgia reaffirmed the sentence of death. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S.Ct. 2000, 68 L.Ed.2d 312 (1981), petition for reh’g denied, 452 U.S. 932, 101 S.Ct. 3069, 69 L.Ed.2d 433 (1981). Brooks sought and was denied collateral relief in the Georgia courts, and the Supreme Court again denied certiorari. Brooks v. Zant, 459 U.S. 882, 103 S.Ct. 183, 74 L.Ed.2d 148 (1982), petition for reh’g denied, 459 U.S. 1060, 103 S.Ct. 482, 74 L.Ed.2d 627 (1982).

Brooks then filed the instant petition for habeas corpus relief in the United States District Court for the Middle District of Georgia. The district court denied relief. On appeal, a panel of this court granted relief only on the issue involving the prosecutor’s argument during the sentencing phase. Brooks v. Francis, 716 F.2d 780 (11th Cir.1983). A petition for rehearing en banc was granted, thus vacating the panel opinion. 728 F.2d 1358 (11th Cir.1984).

SECTION ONE: SANDSTROM ISSUE

1. WAS THERE AN IMPERMISSIBLY BURDEN-SHIFTING INSTRUCTION ÜNDER SANDSTROM! ²

Brooks was charged in a four-count indictment, the first count of which was malice murder. Brooks argues that the trial judge’s instruction regarding malice was impermissibly burden-shifting under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The relevant part of the instruction reads as follows:

The law of the State of Georgia says that a person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied, the law says, when no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.

The law, ladies and gentlemen, presumes every homicide to be malicious until the contrary appears from circumstances of alleviation, excuse, or justification, and it is encumbent upon the accused to make out such circumstances to your satisfaction unless they appear from the evidence produced against him.

(Emphasis added).³ This instruction, which placed upon the defendant the initial burden of disproving malice, is virtually identical to the one found impermissible in the recent en banc case of Davis v. Kemp, 752 F.2d 1515, 1519-20 (11th Cir.1985) (en banc). The analysis employed in our Davis opinion was recently confirmed by the similar analysis used by the Supreme Court in Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). The instruction here is a mandatory rebuttable presumption, as were the instructions found impermissible in Davis and Franklin. Davis, 752 F.2d at 1517-20; Franklin, — U.S. at---,---, 105 S.Ct. at 1970-1971, 1972-1973. We conclude that the instruction here impermissibly shifted the burden of proof with respect to malice, a necessary element of the murder charge against Brooks.

The state argues that the malice instruction, when read in conjunction with the entire jury charge, did not “so infect the entire trial that the resulting conviction violate[d] due process.” Cupp v. Naught-en, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). The state’s argument is a subtle one, and depends upon several building blocks. First, the state correctly notes that malice murder in Georgia is defined as an intentional killing done without provocation or justification. Lamb v. Jernigan, 683 F.2d 1332, 1336 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983). Second, the state argues that there was in this case no hint of provocation or justification,⁴ so that the only sub-element of malice which might possibly have been in dispute was intent. Third, the state argues that a separate intent instruction was given, which properly instructed the jury that intent “may be inferred” from all the facts and circumstances.⁵ Thus, the state argues that the jurors would have understood the malice instruction to refer to the earlier intent charge for a definition of the intent component of malice; and, the argument continues, the improper burden-shifting presumption in the malice charge would have affected only the sub-issues of provocation and justification, and not the sub-issue of intent.

The problem with the state’s argument is that the malice instruction does not either expressly or impliedly refer for a definition of intent to the earlier intent instruction. Moreover, the intent instruction appeared a full six pages prior to the malice instruction.

After a careful review of the malice instruction, in the context of the entire charge including the earlier intent instruction, we cannot discount the possibility that a reasonable jury could have understood the instructions to create an unconstitutional presumption of malice and its intent component. See Franklin, — U.S. at-, -n. 8, 105 S.Ct. at 1971, 1975 n. 8.⁶ As the Supreme Court said in Sandstrom, “we have no way of knowing that ... [the defendant] was not convicted on the basis of the unconstitutional instruction.” Sandstrom, 442 U.S. at 526, 99 S.Ct. at 2460; accord, Franklin, — U.S. at -, 105 S.Ct. at 1975 n. 8. At best, the contradictory instructions as to intent and malice may have confused the jury as to the proper burden of proof. See Franklin v. Francis, 720 F.2d 1206, 1212 (11th Cir.1983), aff'd, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (— U.S. -, 105 5. Ct. at 1975: “Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity”).⁷

For the same reasons, we reject the state’s argument that the unconstitutional malice instruction was cured by the general instructions establishing the presumption of innocence and the state’s burden of proving every element of the crime. This is the same argument that was expressly rejected by the Court in Franklin and Sandstrom. As the Supreme Court noted, the jury might have relied upon the improper burden-shifting presumption either as a means for rebutting the presumption of innocence, or as a means by which proof beyond a reasonable doubt could be satisfied. Franklin, — U.S. at-, 105 S.Ct. at 1973; Sandstrom, 442 U.S. at 518 n. 7, 99 S.Ct. at 2456 n. 7.

After a careful review of the entire jury charge, we find that a reasonable juror could well have concluded that Brooks bore the burden of proof on the necessary element of malice. We thus conclude that the instruction violates Sandstrom.

II. WAS THE SANDSTROM ERROR HARMLESS?

The state maintains that even if the malice instruction was impermissibly burden-shifting under Sandstrom, this error was harmless. The Supreme Court has expressly left open the question whether a Sandstrom error can ever be harmless. Franklin, — U.S. at -, 105 S.Ct. at 1977. However, our en banc court in Davis recently reaffirmed for this circuit that a Sandstrom error, like most other errors of constitutional magnitude, can be held harmless beyond a reasonable doubt. Davis v. Kemp, 752 F.2d at 1520-21; see also McCleskey v. Kemp, 753 F.2d 877, 902 (11th Cir.1985) (en banc). Davis identified two situations where a harmless error analysis is appropriate: (1) where the evidence of the defendant’s guilt was overwhelming; and (2) where the instruction concerned an element of the crime which was not in issue at trial.⁸ Davis, 752 F.2d at 1521.

In this case, the evidence did create an issue with respect to malice; thus, we focus on the first situation. Davis clarified the fact that this first prong should properly focus on whether the evidence of intent, rather than the more inclusive issue of guilt, is overwhelming. The evidence adduced at Davis’ trial overwhelmingly indicated “that whoever killed the victim did so with intent and malice.” Davis, 752 F.2d at 1521. Although the evidence that Davis was the killer may not have been overwhelming, in light of Davis’ testimony to the contrary, the court stated succinctly that the appropriate inquiry was whether the evidence of intent was overwhelming, not whether there was overwhelming evidence that Davis was the guilty killer:^{8 9}

Although some opinions talk in terms of overwhelming evidence of guilt, (which will obviously always include the necessity of overwhelming evidence of intent), the analysis in the text makes it clear that the crucial inquiry relates to whether or not there is overwhelming evidence of intent. See Connecticut v. Johnson, 460 U.S. [73] at 86 [103 S.Ct. 969 at 977, 74 L.Ed.2d 823] (Blackmun, J.) and at 90, 96, 97, 99, 101 [103 S.Ct. at 979, 982, 983,’ 984, 985] (Powell, J.). The jury in this case concluded that Davis was the killer, and that conclusion could not have been affected by the erroneous instruction. Thus, overwhelming evidence that Davis was the killer is not required.

Davis, 752 F.2d at 1521 n. 10 (emphasis in original); accord, Franklin v. Francis, 720 F.2d 1206, 1212 (11th Cir.1983), aff'd, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (— U.S. at-, 105 S.Ct. at 1977: affirming this “court’s conclusion that the evidence of intent was far from overwhelming ...”).

Davis also emphasized that the nature of the defense at trial is an important factor in assessing whether there is overwhelming evidence of intent. In Davis, the thrust of the defense was Davis’ non-involvement in the killing, and the defense made no effort to rebut the overwhelming evidence that whoever killed the victim did so with intent and malice. While intent remained at issue in the sense that it was not conceded and the burden of proof remained on the state, the Davis court expressly considered as important the fact that the defense did not contest the issue of intent, thus leaving unrebutted the overwhelming evidence that the killing was intentional.¹⁰

The foregoing discussion of Davis stands in contrast to the trial in this case. Brooks presented what can best be termed a “hybrid” defense. His lawyer, like most thorough and competent defense lawyers, cross-examined most of the state’s many witnesses in an attempt to undermine their credibility, recall and perception of events. Unquestionably, the major objective of the defense was to cast blame on another man who was arrested shortly after the crimes as a material witness and who testified for the state at trial. Brooks’ theory in this regard was that the failure of some witnesses to positively identify Brooks, and those witnesses’ inclinations to identify the other man,¹¹ tended to exonerate Brooks. Brooks also attempted to show that the shirt found at the scene of the crimes would have fit the other man, a man allegedly much larger than himself. It is true that the thrust of defense counsel’s closing argument, in the face of overwhelming evidence to the contrary, was that a reasonable doubt as to Brooks’ guilt had been raised by reference to the evidence concerning the other man.

However, unlike the situation in Davis, Brooks’ intent to kill was clearly put in issue at trial. The state relied heavily on a confession which Brooks gave to the police in which he admitted kidnapping, raping, robbing, and killing Carol Galloway. In fact, the only evidence adduced at trial concerning the fact of the killing itself was derived from Brooks’ confession. In the confession, Brooks stated that after he raped the victim, he pointed his pistol at her to keep her from screaming and the pistol “went off.” Brooks never conceded that he intended to kill and he pled not guilty to the charge of malice murder. Indeed, the prosecutor in his closing argument explicitly referred to the accident defense, urging the jury to disbelieve it:

Now, one other thing [the judge] is going to charge you on, in [Brooks’] statement ..., he says that she was saying let me go, and screaming, and he took his gun out and pointed it at her, tried to make her hush, you will recall that, and that he pulled the hammer back, and the gun went off. He doesn’t say it was an accident, but he leaves that implication. And, the Court is going to charge you on accident. We say to you when you are in that kind of situation, and you’ve got your finger on the trigger and you point the gun at somebody, you pull the hammer back, it ain’t no accident.¹²

Significantly, the trial court did charge the jury on accident. Finally, in briefing this case before the panel, the state acknowledged that Brooks’ defense to the malice murder charge was one of accident. The state argued that the facts and circumstances of the case properly led the jury to the conclusion that Brooks had acted intentionally, but recognized that if the jury chose to believe Brooks’ version it would have exonerated him of the charge of malice murder.

Acknowledging, as we must, that the accident issue was squarely before the jury and that Brooks’ statement indicating that the gun went off unintentionally, if believed, would have exonerated him of the charge of malice murder, we review the case to see if the Sandstrom error was harmless beyond a reasonable doubt. The facts adduced at trial tended to show that Brooks abducted Carol Jeannine Galloway from her home and drove away with her in an automobile. In a statement to police, Brooks confessed, as indicated above, that he had kidnapped, raped, robbed, and killed Galloway. The statement strongly implied, however, that the killing was accidental. He pointed the gun at Galloway, he stated, to scare her into being quiet because she had begun to scream after the rape. Brooks said that at that point the gun simply “went off” and killed Galloway. The evidence indicates that Galloway died of one gunshot to the neck. Brooks did admit in his statement to the police that after Galloway fell to the ground he “got scared” and fled the scene of the crimes.

In support of his argument that the Sandstrom error was not harmless, Brooks cites the case of Franklin v. Francis, 720 F.2d 1206, 1208-12 (11th Cir.1983), aff'd, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). In Franklin, the defendant admitted that he fired the gun which killed the victim. The defendant arrived at the victim’s home, with a woman he had kidnapped, and demanded the keys to the victim’s car at the threshold of the victim’s home. After the demand, the victim proceeded to slam the door in the defendant’s face at which time, the defendant testified, the gun simply “went off,” accidentally killing the victim. The evidence showed that the bullet travelled through the door before killing the victim. The defendant then fired a second shot into the ceiling. The court held that the Sandstrom error could not be considered harmless:

[The defendant’s] only defense was that he did not have the requisite intent to kill. The facts did not overwhelmingly preclude that defense. The coincidence of a first shot with the slamming of the door, the second shot’s failure to hit anyone, or take a path on which it would have hit anyone, and the lack of injury to anyone else all supported the lack of intent defense. A presumption that Franklin intended to kill completely eliminated his defense of “no intent.” Because intent was plainly at issue in this case, and was not overwhelmingly proved by the evidence ..., we cannot find this error to be harmless.

Franklin v. Francis, 720 F.2d at 1212.¹³ The Supreme Court, without deciding the question whether a Sandstrom error can ever be harmless, has recently affirmed the decision in Franklin, by explicitly relying on our “court’s conclusion that the evidence of intent was far from overwhelming ____” Francis v. Franklin, — U.S. at -, 105 S.Ct. at 1977.

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), sets out the standard by which most constitutional errors should be considered harmless. Under Chapman, a criminal conviction must be reversed if the appellate court cannot say “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 24, 87 S.Ct. at 828. In applying Chapman, we must look at the constitutional error involved. The instruction as to malice stated that “[t]he law ... presumes every homicide to be malicious until the contrary appears from the circumstances of alleviation, excuse or justification____” (Emphasis added). Thus, the jury was instructed that it was required by law to presume that Brooks acted maliciously because a bullet from the gun he was holding caused the death of Carol Galloway. Brooks was thus forced into the position of having to disprove malice, an essential element of malice murder under Georgia law. This the state may not do. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (state has burden of proving every element of the crime charged beyond a reasonable doubt). Moreover, the burden of proof was placed upon Brooks on what was in fact the essential element in Brooks’ case, since the evidence of Brooks’ participation in the kidnapping, robbery, rape, and even the killing was otherwise overwhelming. Brooks v. Francis, 716 F.2d 780, 794 (11th Cir.1983), vacated for rehearing en banc, 728 F.2d 1358 (1984). As reflected by Brooks’ statement to the police, it was the only issue, in practical effect, subject to dispute with respect to the malice murder charge.

Of course, the jury was free to discredit Brooks’ statement as to the accidental nature of the killing. Because of the erroneous charge, however, we cannot determine whether the jury disbelieved Brooks, or whether it merely applied the erroneous presumption that every homicide is malicious. Brooks’ statement was the only direct evidence as to whether the killing was accidental or malicious. The jury could reasonably have inferred that the killing was malicious from the evidence that Brooks kidnapped, robbed, and raped Galloway and from the evidence that he threatened her with a gun to stop her from screaming. However, it is of course possible to kidnap, rob, rape and even threaten without intending to kill.¹⁴ We must insure that the jury’s role is not impaired and rendered conviction-prone by an unconstitutional burden-shifting instruction. Considering all the facts and circumstances, we cannot conclude “beyond a reasonable doubt that the [Sands f rom ] error complained of did not contribute to the [murder] verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

Accordingly, the district court erred in denying the writ of habeas corpus with respect to the malice murder conviction only.

SECTION TWO: PROSECUTORIAL ARGUMENT AT SENTENCING PHASEI.¹⁵

This section of the opinion will be addressed as follows. Part I recounts the facts of Brooks’ case relevant to this issue, focusing particularly on the evidence and argument at the penalty phase of his capital trial. Part II discusses the relevant “fundamental fairness” standard, elaborating upon it in light of Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Part III examines the Georgia capital sentencing trial for the purpose of determining what may be appropriately argued to the jury as a justification for imposing death. Part IV considers the prosecutor’s closing argument in the sentencing phase of this case and recognizes certain improper arguments. Finally, Part V examines the improper arguments to determine whether they entitle Brooks to relief.

I. FACTS

William Brooks was arrested and tried for the tragic July, 1977 murder of Carol Jeannine Galloway. The jury found the 22-year old Brooks guilty of murder, kidnapping, rape, and armed robbery. The prosecutor, Mr. Mullins Whisnant, decided to seek the death penalty in Brooks’ case.¹⁶ Therefore, following conviction, the jury reconvened for the penalty phase of Georgia’s capital sentencing scheme. Ga.Code Ann. § 17-10-2(c) (1982). The trial court informed the jury that it would hear evidence and argument from both the state and the defendant on the punishment issue. Because an allegedly improper closing argument can only be analyzed in the context of the entire proceeding, we supplement the above description of the crime with a brief description of the evidence presented at the sentencing phase.

The state called one witness. Danny Dunaway, a probation and parole officer, testified that Brooks had a bad reputation in the community.

Counsel for Brooks called three witnesses to testify in mitigation. Brooks’ mother and two sisters testified that Brooks had been severely beaten by his step-father as a child and that he began to get in trouble at that time.

Following the introduction of this evidence, Whisnant made his closing argument for the state.¹⁷ He began with a brief discussion of the “two-fold purpose” of punishment — punishing guilt and deterring like conduct. Concerning the punishment motive, Whisnant argued that “the only appropriate punishment is death in the electric chair.”

Whisnant then moved into a more explicit discussion of deterrence. He said “I believe in the death penalty. I think it’s necessary.” Then, responding to the anticipated argument that the death penalty does not deter, Whisnant claimed:

... The last person in Georgia was electrocuted in 1964, and since that date, crime has increased year by year, time after time, every time the statistics come out, we have an increase in crime rate. We didn’t have that when we had capital punishment. We didn’t have this kind of murder, these kinds of crimes you’ve heard about this week, when we had capital punishment. If they were, they were very seldom, we heard about them somewhere else, but not here.¹⁸

Next, in anticipation of arguments for sympathy by defense counsel, the prosecutor reminded the jury of the victim’s high morals, and considerate and thoughtful nature. He also asked “What has the Galloway family gone through, what have they gone through? Next week when it’s Thanksgiving, and they are sitting around the table, Carol Jeannine won’t be there, and never will be there again.”

Argument then turned to the issue of why the prosecutor sought the death penalty here. Whisnant argued:

I’ve been district attorney for seven and a half years, and we don’t take this business of asking for the death penalty lightly. We don’t come up here on every murder case that we try and say, “Give the man the electric chair.” In the seven and a half years I’ve been district attorney, I believe we’ve only asked for it less than a dozen times, I think it’s nearer eight or nine, but I know it’s less than twelve. So, we take it seriously. We ask you to take it seriously.

He then discussed at length factors that he considered in asking for the penalty and which he suggested justified imposing death. First, he discussed how horrible the crime was. He then described the overwhelming evidence as to guilt. Finally, he raised the issue of rehabilitation and opined that “there’s no chance that William Brooks will ever be rehabilitated.” Whisnant next focused on factors particular to Brooks which might call for jury sympathy. He argued that it was “ridiculous” to suggest that Brooks’ troubled upbringing should mitigate his punishment. The prosecutor also pointed out that even though Brooks was young, it was still necessary to punish young people because “that’s the group that’s committing crimes in this country.”

Whisnant then made several points directed to possible jury squeamishness about imposing the ultimate punishment. First, he reminded the jurors that they would not be solely responsible for Brooks’ death:

Now I’m sure another question that might be going through your mind at this time is, when I get back to that jury room, and we have to vote, and I vote to take somebody’s life, can I do it? I know it’s rough, it would be hard for me to do. Can I take somebody’s life? Well, the truth of the matter is, you’re not taking his life, you’re not pulling the switch in the electric chair; the police who investigated this case and who apprehended William Brooks, they’re not taking his life; the Recorder’s Court Judge who heard the evidence in the preliminary hearing, are you going to say he’s responsible for taking his life? Of course not. How about the Grand Jury who listened to the evidence and indicted him for murder; are the Grand Jurors responsible for his life, can you say they’re about to take his life? Of course not. How about me and my staff, we put the case together and we prosecuted him, and we’re here now asking you to bring back the death penalty, do we feel responsible? I don’t. I don’t think anybody in my office does.

How about the man, if he’s electrocuted, who actually pulls the switch, is he responsible for taking his life? Of course not. The person who is responsible for his life is William Brooks himself, and if the switch is pulled and he’s put to death, he pulled the switch the morning that he was walking along Saint Mary’s Road when he put the gun in the back of Carol Jeannine Galloway and kidnapped her, that’s when he took his own life. He’s a grown man, and he knew what he was doing.

Whisnant implied that the jury should not shy away from the death penalty because Brooks himself believed in it:

Now I’m sure the argument is going to be made, either by Mr. Araguel, or maybe some member of the jury that, “Well the death penalty is bad, maybe we can do something else.” Well let me say this to you; I told you I believe in it. William Brooks believes in the death penalty, he believes in executing people. He carried Carol Jeannine Galloway down in those woods out of the sight of everybody. Carol Jeannine Galloway didn’t have a battery of lawyers around her, she didn’t have a judge sitting there ruling on evidence, she didn’t get twenty strikes when the jury was selected, she didn’t have any courtroom with cameras so that the whole world could see if she got a fair trial. He just stepped back at point-blank range within three feet of her and killed her, shot her. So, he believes in the death penalty, he executed her, a lot more horrible than the electric chair which is a quick thing, brings death on real quickly. She lay there perhaps an hour and a half or two hours before she bled to death.

He asked the jury to show Brooks the same sympathy that he showed his victim, i.e., none.

Continuing in the same vein, Whisnant argued the impropriety of a life sentence, suggesting that Brooks might kill a guard or a prisoner. For example, he argued:

And the next thing is, he has demonstrated that he’s a killer. Anybody who can kill a poor defenseless person, or murder a poor defenseless person like he did will kill again. He doesn’t care, life doesn’t mean anything to him. So you put him in prison. How about those guards that have to guard him. They have families depending on them, how do you know he won’t kill one of them?

The prosecutor suggested escape and asked the jurors, “Whose daughter will it be next time?”

Whisnant then argued:

And this is — I’m going to say this, and maybe you don’t agree with me, and I’m sure I’ll be accused of being materialistic in saying it, but why should — if he’s given life, it cost money to keep him, thousands of dollars a year to keep a prisoner housed, fed and clothed, and medical care, why should the taxpayers, and that’s you folks, all of us, why should the taxpayers have to keep up somebody like William Brooks the rest of his life when he’s done what he’s done?

Whisnant then delivered an extended analogy between jurors and soldiers.

Let me say this to you, during my lifetime this country has been in three wars, each war we’ve taken our young men down to the age of seventeen, we’ve trained them, we’ve put guns in their hands, we’ve taught them how to kill the enemy, and we’ve sent them overseas, and they have killed other human beings who are enemies of our country, and when they did a good job of killing them, we decorated them and gave them citations, praised them for it.

Well, I say to you that we’re in a war again in this country, except it’s not a foreign nation, it’s against the criminal element in this country, that’s who we’re at war with, and they are winning the war, is what’s so bad, and if you don’t believe they are winning, just look about you. You don’t dare get out on the streets at night and walk around, you don’t dare leave your house unlocked. In fact, most everybody I know has added more locks to their house, and burglar bars, and burglar alarms. And, we’ve got a man here in town who makes a living with guard dogs. And, if you go to the hospital to see some of your friends, you’ve got to get by a security place up there, and you see security guards everywhere. Why are they there? Because of the criminal element in this country. It’s winning.

And, if we can send a seventeen-year old young man overseas to kill an enemy soldier, is it asking too much to ask you to go back and vote for the death penalty in this case against William Brooks, and I submit to you that he’s an enemy, and he’s a member of the criminal element, and he’s our enemy, and he’s an enemy of the law abiding citizens and the people who want to live peacefully in this country, and who want to be secure in their persons and their homes.

You know, lots of times you see people on the street, and they are always stopping us and saying, “You know, something’s got to be done about this crime wave, what can we do, Mr. Whisnant; what can we do, Mr. Smith, we’ve got to do something about it.” Well, you have an opportunity to do something about it right now. The police have investigated the case, we’ve prosecuted it the best we know how, and you’re in the position of Harry Truman, who had on his desk a sign that said, “The Buck Stops Here.” The buck stops with you today. And you can do something about it. You can bring back the death penalty and you can tell William Brooks, and you can tell every other criminal like him, that if you come to Columbus and Muscogee County, and you commit a crime, and it’s one of those crimes that’s punishable by death, and if the aggravating circumstances are there, you are going to get the electric chair, that’s what you can do. And, I believe that will stop some of the crime.

Following this “war on crime” argument, Whisnant compared Brooks to a cancer that should be cut out to save the body of society. He claimed that Brooks would never kill again if the jury returned a death verdict.

Whisnant concluded his argument with a brief recapitulation of the facts of the crime, including the following:

... He was just walking along with a pistol in his pocket, and he decided, “well, I’ll make a hustle,” to use their language, his language. And then after he did that, “Well, I’ll rape her,” so he carried her down in the woods and raped her and shot her and left her there bleeding to death.

He reminded the jury that they had indicated at voir dire that they were not conscientiously opposed to the death penalty, and that they could vote for death if the facts and circumstances warranted it. He asked the jury to go to the jury room, consider the facts and circumstances, and bring back a verdict of death.¹⁹

Brooks’ counsel then made his closing argument. He emphasized juror responsibility for this “hardest decision of your life.” He specifically rebutted any implication in Whisnant’s argument that might suggest that the grand jury, the prosecutor, and others shared responsibility for the sentence:

None of those people that he named had the decision-making responsibility, only you twelve have that decision-making responsibility, whether this man lives or this man dies.

Defense counsel also rebutted Whisnant’s “war on crime” argument:

The District Attorney argued that you were being called upon to be nothing less than soldiers in the service of your country, which I know some of you have served also in the armed forces. But, a soldier doesn’t have time to contemplate, and he isn’t asked to make decisions about whether anyone lives or dies, and that is the difference, because you have that power, you have that decision-making responsibility upon your shoulders, as to whether this man will live or die.

Counsel for Brooks then noted that no punishment, however serious, could bring the victim back. He discussed the sanctity of life and the Biblical commandment “Thou shalt not kill.”

Turning to the penological justifications argued by the prosecutor, defense counsel stressed the possibility of rehabilitation, argued that the death penalty is not a deterrent, and referred to many studies to this effect, noting that “most of you probably are familiar with these studies.” Finally, he questioned the weight of evidence on guilt and reminded the jury of Brooks’ troubled childhood.

The trial judge then instructed the jury. He charged that the jury’s first responsibility was to determine whether any mitigating or aggravating circumstances existed at the time the murder was committed. He charged that the jury would be authorized to recommend the death penalty only if it found beyond a reasonable doubt the existence of one or more of three statutory aggravating circumstances. The three aggravating circumstances were read to the jury.²⁰ The jury was also told that, even if aggravating circumstances did exist, it could still recommend life imprisonment. Driving home the sole responsibility of the jury he charged:

If you recommend the death penalty, then the court is required by law to sentence the defendant to death. On the other hand, you can see fit, ladies and gentlemen, whether aggravating circumstances existed or not, to recommend mercy for the defendant if this should be your finding, then in that event the court is required by law to sentence the defendant to life imprisonment.

With respect to the facts and circumstances to be considered by the jury, the judge gave a clear definition of both mitigating circumstances and aggravating circumstances, and charged the jury as follows:

In arriving at your determination, you are authorized to consider all the evidence received throughout this trial, presented by both the state and the defendant. You are authorized to include in your consideration the facts and circumstances, if any, in mitigation and aggravation.²¹

After deliberating for approximately one hour, the jury returned its verdict of death.

II. STANDARD OF REVIEW

Appellant claims that the prosecutor’s closing argument contained repeated references to irrelevant, arbitrary, and prejudicial factors as reasons to impose the death penalty. He correctly points out that the argument is very similar to one found “fundamentally unfair” by a panel of this court in Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983).²² We now reexamine the issue as an en banc court, overruling any implications in Hance inconsistent with this opinion.

A. Dangers of Prosecutorial Argument

It has long been recognized that misconduct by a prosecuting attorney in closing argument may be grounds for reversing a conviction. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1934). Part of this recognition stems from a systemic belief that a prosecutor, while an advocate, is also a public servant “whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” 295 U.S. at 88, 55 S.Ct. at 633.

Beyond a concern with the inherent role of the prosecuting attorney, courts have also noted that prosecutorial misconduct is particularly dangerous because of its likely influence on the jury. Speaking of the prosecutor’s duty to seek justice, the Berger Court stated:

It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge, are apt to carry much weight against the accused when they should properly carry none.

295 U.S. at 88, 55 S.Ct. at 633; see also United States v. Morris, 568 F.2d 396, 402 (5th Cir.1978);²³ Hall v. United States, 419 F.2d 582, 583-84 (5th Cir.1969). Thus, our review of alleged errors in argument must be informed by an awareness that the prosecutorial mantle of authority can intensify the effect on the jury of any misconduct.²⁴

B. Donnelly v. DeChristoforo

Notwithstanding the dangers discussed above, our review of a state prosecutor’s argument on a petition for writ of habeas corpus is more limited than if we were examining errors of a federal prosecutor on direct appeal. The Berger, Morris and Hall cases were federal prosecutions and, while their standards provide guidance for reviewing claims on habeas corpus, Houston v. Estelle, 569 F.2d 372, 380-81 (5th Cir.1978), our predecessor court has noted that Georgia prosecutors are allowed more freedom in jury arguments than their federal counterparts. Bryant v. Caldwell, 484 F.2d 65, 66 (5th Cir.1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1572, 39 L.Ed.2d 878 (1974).

In Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), the Supreme Court set forth the standard for reviewing habeas corpus petitions raising the impropriety of a state prosecutor’s argument. In that case, petitioner was tried in Massachusetts for a first-degree murder. During closing, the prosecutor referred to defense counsel by saying “They said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.” Counsel objected that the remark, coupled with the fact that a co-defendant had pled guilty during the trial, constituted a suggestion to the jury that the defendant had sought to plead guilty to a lesser-included offense and was refused by the prosecution. The trial court instructed the jury to disregard the remark.

The Supreme Court, while acknowledging that the remark may have been improper, reversed the lower court’s grant of habeas relief. In holding that the relevant inquiry was whether the remark violated due process, the majority stated that “not every trial error or infirmity ... constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice.’ Lisenba v. California, 314 U.S. 219, 236 [62 S.Ct. 280, 289, 86 L.Ed. 166] (1941).” 416 U.S. at 642, 94 S.Ct. at 1871. After examining the isolated and possibly unintentional remark, particularly in light of the curative instruction given by the trial court, the Court expressed its inability to conclude “that this incident made [DeChristoforo’s] trial so fundamentally unfair as to deny him due process.” 416 U.S. at 645, 94 S.Ct. at 1872.

The Donnelly decision provides important guidelines for reviewing allegedly improper prosecutorial argument. Of primary importance is the need to examine the entire context of the judicial proceeding. Thus, it is not our duty to ask whether a particular remark was unfair; we are concerned with whether it rendered the entire trial unfair. In this regard, isolated or ambiguous or unintentional remarks must be viewed with lenity. Finally, the giving of a curative instruction by the trial court may remedy effects of improper comments. But see Houston v. Estelle, 569 F.2d 372 (5th Cir.1978) (prosecutor’s continuous use of shocking argument despite numerous sustained objections by defense counsel violated due process despite curative instruction).

While these principles are helpful, agreeing upon fundamental fairness as the relevant standard does not readily resolve particular cases. The Donnelly Court recognized that “the process of constitutional line drawing in this regard is necessarily imprecise.” 416 U.S. at 645, 94 S.Ct. at 1872. Fundamental fairness is itself but one of many verbal formulations of the scope of due process as guaranteed by the Fifth and Fourteenth Amendments to our Constitution. See, e.g., Hobby v. United States, — U.S.-,-, 104 S.Ct. 3093, 3096, 82 L.Ed.2d 260, 266 (1984) (discrimination in selection of grand jury foreperson does not “undermine the integrity of the indictment” so as to violate due process); Beck v. Alabama, 447 U.S. 625, 637-38,100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392 (1980) (Alabama law precluding jury in capital case from receiving instruction on lesser-included offense violates due process because it “enhances the risk of an unwarranted conviction”); Rochin v. California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952) (use of stomach pump to force production of concealed narcotics violates due process because it “shocks the conscience” and offends a “sense of justice”). An examination of a recent Supreme Court decision will provide additional guidance in ascertaining the appropriate standard of review.

C. Strickland v. Washington

In Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court considered whether errors of defense counsel in representation at the sentencing phase of a capital trial were so egregious as to deny the defendant the effective assistance of counsel guaranteed by the Sixth Amendment.²⁵ The standard articulated requires a defendant to show (1) that errors of counsel were so serious as to be outside the broad range of effective assistance, and (2) that the errors were so serious “as to deprive the defendant of a fair trial.” — U.S. at-, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. We believe that the Supreme Court’s discussion of the second element, often called the “prejudice” requirement, is directly analogous to the fundamental fairness inquiry to be undertaken in cases where improper prosecutorial argument is at issue.

The court in Strickland v. Washington explained the prejudice requirement as follows:

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

— U.S. at -, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Thus, errors, even serious errors, will not require reversal on a petition for writ of habeas corpus unless their absence would have, in reasonable probability, changed the outcome.

At first blush, the use of this standard to test the seriousness of prosecutorial argument may seem questionable. Federal courts conducting habeas review take special care to guard against a state infringement of protections specifically granted by the Bill of Rights, such as the right to counsel. Donnelly v. DeChristoforo, 416 U.S. at 643, 94 S.Ct. at 1871. Nevertheless, we find compelling reasons to support use of the “reasonable probability” test in the context of prosecutorial misconduct.

First, the court in Strickland v. Washington, while addressing a specific Sixth Amendment violation, recognized that “fundamental fairness is the central concern of the writ of habeas corpus.” — U.S. at-, 104 S.Ct. at 2070, 80 L.Ed.2d at 700. Discussing the application of the articulated test, Justice O’Connor wrote as follows:

Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.

Id. at —, 80 L.Ed.2d at 699. Thus, the Court acknowledged that fundamental fairness, the same standard adopted in Donnelly, is the governing principle in reviewing errors of counsel. The use of the “reasonable probability” test to elaborate the underlying principle suggests its applicability to other areas in which fundamental fairness is the guide.

A second support for the Strickland v. Washington test is its analytic similarity to our review of prosecutorial argument. Not all errors of counsel require relief. A reviewing court must examine the errors, those “acts and omissions outside the wide range of professionally competent assistance,” — U.S. at-, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, and grant relief only when it is convinced that the requisite level of prejudice is reached. This is because “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” — U.S. at -, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. Similarly, a prosecutor could make many improper arguments without rendering a trial or capital sentencing hearing fundamentally unfair. In each setting, the principal question for the court is when mere errors pass a threshold so as to create a constitutional violation.

The Strickland v. Washington test also commends itself because it is flexible enough to accommodate evaluations of constitutional errors of disparate magnitude. Application of the “reasonable probability” test can recognize that some errors are more serious than others in their tendency to “undermine confidence in the outcome.” Strickland v. Washington, — U.S. at -, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Finally, asking whether the absence of improper argument would have, in reasonable probability, changed the result is consistent with the standards discussed in Donnelly and with subsequent cases applying the fundamental fairness standard. The several factors which those cases have found relevant operate in the same fashion under the “reasonable probability” test. For example, the willingness to tolerate an isolated or ambiguous argument stems from a recognition of its minimal effect upon the jury. Another factor — the degree to which the challenged remarks have a tendency to mislead the jury and prejudice the accused, Hance v. Zant, 696 F.2d at 950 n. 7 — is necessarily included within the reasonable probability test.²⁶ Even argument greatly exceeding the bounds of propriety will not be fundamentally unfair in the guilt phase²⁷ of a case with overwhelming evidence because of the low probability of the argument’s impact. See, e.g., Cobb v. Wainwright, 609 F.2d 754 (5th Cir.) (given the strength of evidence against the defendant, the prosecutor’s inflammatory argument did not render trial fundamentally unfair), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980); Cronnon v. Alabama, 587 F.2d 246 (5th Cir.) (improper argument not unconstitutional due to overwhelming evidence of guilt), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979). On the other hand, arguments serious enough to satisfy the “reasonable probability” test have been found “fundamentally unfair” under the Donnelly standard. See, e.g., Houston v. Estelle, 569 F.2d 372 (5th Cir.1978) (repeated unsupported and inflammatory references to defendant as liar and dealer of drugs, and argument that defense counsel’s objections and motions for mistrial evidenced desire to take case away from the jury, all over objection by defense counsel, so pervaded the trial as to be unconstitutional — even a curative instruction did not mitigate actual prejudice to defendant).

For all these reasons, we conclude that the Strickland v. Washington test, requiring an assessment of errors to determine whether there is a reasonable probability that they changed the outcome of a case, is applicable to our analysis of whether improper closing arguments delivered by the prosecuting attorney rendered the capital sentencing hearing fundamentally unfair.²⁸

D. Application of the Standard

These guidelines for reviewing the effect of prosecutorial argument only-come into play when an improper argument has been made. A permissible argument, no matter how “prejudicial” or “persuasive,” can never be unconstitutional. Thus, a precondition to examining the probable effect of improper closing argument on the jury is an understanding of the scope of permissible prosecutorial argument. In the context of a trial on the issue of guilt, where the jury is asked to find facts beyond a reasonable doubt, case law is plentiful on subjects that should not be argued.²⁹

In this case, however, we review closing argument in the sentencing phase of a capital trial.³⁰ Because the Georgia capital sentencing hearing has a different focus than a trial on guilt, we must examine its particular characteristics in order to determine the extent of proper prosecutorial argument. Then, we can examine the argument in this case to determine whether Whisnant exceeded those bounds. Because we find some of his arguments excessive, we must finally determine, in accord with the standard set out above, whether the improper segments were so egregious as to create a reasonable probability that the outcome was changed because of them.³¹

III. DETERMINING THE SCOPE OF PERMISSIBLE PROSECUTORIAL ARGUMENT AT THE SENTENCING PHASE

In Georgia, as in other jurisdictions that impose the death penalty, a capital sentence is given only after a special hearing which follows a conviction for a death-eligible crime. Ga.Code Ann. § 17-10-2 (1982). The use of this “bifurcated procedure” for trial and sentencing in capital cases was first recommended by the drafters of the Model Penal Code as a means of keeping prejudicial evidence relevant only to sentencing, from influencing the jury prior to its adjudication of guilt. ALI, Model Penal Code § 201.6, comment 5, pp. 74-75 (Tentative. Draft No. 9, 1959). While the procedure has been explicitly approved by the Supreme Court, see Gregg v. Georgia, 428 U.S. 153, 190-92, 96 S.Ct. 2909, 2933-34, 49 L.Ed.2d 859 (1976), the precise nature of the capital sentencing determination has been the source of some controversy.³² Because the appropriate conception of the penalty phase determines the role of the sentencing jury, it also affects what may be legitimately argued to that jury by a prosecutor as grounds for imposing death.³³ In this section of the opinion, we will discuss the Georgia capital punishment scheme and the areas of argument relevant to it.

A. General Considerations

Because death is qualitatively different from all other punishments, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). The consistent recognition of death as a special punishment has led courts to scrutinize carefully the procedures under which it is imposed. Those procedures must comport with the Eighth Amendment’s prohibition against cruel and unusual punishments, which, in the capital sentencing context, requires that sentencing discretion “be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976). The quest for minimal risk does not, however, require perfection. Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978).

An initial concern in dealing with closing arguments in capital cases is the emotional fashion in which they are frequently delivered, both by prosecution and defense counsel. Indeed, Brooks suggests that the emotional character of the prosecutor’s argument here contravenes the mandate of Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977), that the “decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” See also Hance v. Zant, 696 F.2d 940, 952-53 (11th Cir.1983) (“This dramatic appeal to gut emotion has no place in the courtroom, especially in a case involving the penalty of death”). This claim warrants careful attention.

Georgia’s capital punishment scheme — with its bifurcated trial, its requirement that the jury find at least one of the several statutory aggravating circumstances, its individualized determination of the life or death decision, and its mandatory appellate review — makes it possible to differentiate a particular case “in an objective, evenhanded, and substantially rational way from the many Georgia murder cases in which the death penalty may not be imposed,” Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235, 251 (1983). But, while the statute may be an objective one, capital sentencing is still an emotional issue. Necessarily it will always be so. See Barclay v. Florida, 463 U.S. 939, -, 103 S.Ct. 3418, 3424, 77 L.Ed.2d 1134, 1144 (1983) (“It is entirely fitting for the moral, factual and legal judgment of judges and juries to play a meaningful role in sentencing”). “Reason” alone cannot adequately explain a jury’s decision to grant mercy to a person convicted of a serious murder because of that person’s youth or troubling personal problems. Nor can reason alone fully explain the reaction of a juror upon hearing the facts of a particular crime described in their specifically tragic detail. Empathy for a defendant’s individual circumstance or revulsion at the moral affront of his crime, reactions accepted as bases for capital sentencing decisions, are not susceptible to full explanation without recourse to human emotion. Thus, the fact that an argument by a defense counsel or prosecutor has emotional overtones does not independently indict it as improper. Tucker v. Zant, 724 F.2d 882 (11th Cir.), vacated for reh’g en banc, 724 F.2d 898 (1984). See Conner v. State, 251 Ga. 113, 303 S.E.2d 266, 276, cert. denied, — U.S. -, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983). The propriety of argument rests primarily in the relation of its content to issues relevant to the sentencing jury’s concern.³⁴

B. Georgia’s Sentencing Hearing

In Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982), the Georgia Supreme Court, answering a question certified by the United States Supreme Court, outlined the “issue” before a Georgia capital sentencing jury. After a conviction of murder, a capital sentencing hearing may be held. The jury hears evidence and argument and is then instructed about statutory aggravating circumstances. The court explained the process beyond this instruction as follows:

The purpose of the statutory aggravating circumstances is to limit to a large degree, but not completely, the factfinder’s discretion. Unless at least one of the ten statutory aggravating circumstances exist, the death penalty may not be imposed in any event. If there exists at least one statutory aggravating circumstance, the death penalty may be imposed but the factfinder has a discretion to decline to do so without giving any reason____[Citations omitted]. In making the decision as to the penalty, the fact-finder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial. These circumstances relate both to the offense and the defendant.

297 S.E.2d at 3-4. The United States Supreme Court upheld the constitutionality of structuring the sentencing jury’s discretion in such a manner. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

This explanation demonstrates that the jury in the sentencing phase has two tasks. It must first determine whether the evidence supports the existence of at least one statutory aggravating circumstance. That determination must be made “beyond a reasonable doubt.” Ga.Code Ann. § 17-10-30(c). If at least one aggravating circumstance is present, the jury must then examine factors relative “to the offense and the defendant” and exercise its discretion in choosing between death or life imprisonment.³⁵

In carrying out the first task, the issue before the jury is very clear. The statutory circumstances are elaborated such that they require findings of fact similar to those made by the jury in the guilt phase of the trial. Conner v. State, 303 S.E.2d at 274. The second task, exercise of discretion to impose punishment, is more amorphous. California v. Ramos, 463 U.S. 992, 999, 103 S.Ct. 3446, 3451, 77 L.Ed.2d 1171, 1185 (1983) (“once the jury finds that the defendant falls within the legislatively-defined category of persons eligible for the death penalty, ... [it] then is free to consider whether death is the appropriate punishment”); Zant v. Stephens, 462 U.S. at 878, 103 S.Ct. at 2743, 77 L.Ed.2d at 248 (upholding Georgia statute over defendant’s contention that jury discretion is “unbridled” at the sentencing stage). Nevertheless, some description of the jury’s discretionary choice of punishment is made possible by reference to ease law outlining appropriate sentencing concerns.

The subject most relevant to the choice of punishment is the broad class of information about the defendant, his character, and the circumstances of his offense made known to the jury throughout the bifurcated trial. Consideration of these factors is made necessary by the Eighth Amendment's requirement that capital sell-fencing be individualized. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). It is unconstitutional for a state to restrict the jury’s consideration of any such individualized information that the defendant puts forth to mitigate the severity of his offense. Ed-dings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Court’s opinion in Zant v. Stephens, supra, made clear that, under the Georgia scheme, the jury can also consider reliable³⁶ aggravating evidence, even though it is not relevant to any statutory /aggravating circumstance. Thus, with ¡very few exceptions,³⁷ any information about the individual defendant and his ofIfense may be properly considered by the ' jury.

A line of cases has also made clear that the sentencing body may consider the future dangerousness of a particular defendant. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (approving Texas capital sentencing statute that requires a jury to find, before imposing death, that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society”);³⁸ see also, California v. Ramos, 463 U.S. 992, 1002 n. 16, 103 S.Ct. 3446, 3453 n. 16, 77 L.Ed.2d 1171, 1181-83 (1983); Barefoot v. Estelle, 463 U.S. 880, 896-98, 103 S.Ct. 3383, 3396, 77 L.Ed.2d 1090, 1106-07 (1983).

A third area of consideration is the accepted penological justifications for the use of death as a punishment. These general justifications are retribution and deterrence. Gregg v. Georgia, 428 U.S. 153, 184-87, 96 S.Ct. 2909, 2930-31, 49 L.Ed.2d 859 (1976). A Georgia jury is charged with implementing the state’s capital punishment scheme in a particular case. It is hard to imagine a more reasonable approach to this task than consideration by the jury of whether or not imposition of the death penalty in the particular case will serve the accepted objectives of deterrence and retribution. See Collins v. Francis, 728 F.2d 1322 (11th Cir.1984). Translating facts into a penalty is an ethical operation requiring consideration of the accepted justifications of the particular punishment. See Spaziano v. Florida, — U.S. -, -, 104 S.Ct. 3154, 3174, 82 L.Ed.2d 340, 366 (1984) (“in the final analysis, capital punishment rests on not a legal but an ethical judgment (Stevens, J., dissenting).

Thus, jury consideration of the appropriateness of retribution in the particular case is both proper and inevitable. Similarly, with respect to specific deterrence, the jury may appropriately consider whether a particular defendant is so likely to be dangerous in the future and so unlikely to be rehabilitated that incapacitation is warranted. See Jurek v. Texas, supra. Even general deterrence, while principally a concern for the legislature, Spaziano v. Florida, — U.S. at -, 104 S.Ct. at 3172, 82 L.Ed.2d at 354, can be considered in fixing a punishment. In deciding whether to im-’ pose the death penalty in a particular case, it is appropriate for a jury to consider whether or not the general deterrence purpose of the statute would be served thereby. Collins v. Francis, 728 F.2d 1322, 1339-40 (11th Cir.1984) (discussing Supreme Court precedent and concluding that the need for general deterrence is a constitutional sentencing consideration).³⁹ Georgia permits argument about these penological justifications. Conner v. State, 251 Ga. 113, 303 S.E.2d 266 (1983).⁴⁰ Such arguments are logically relevant to the jury’s proper task. Neither reason nor precedent suggests that we should raise a constitutional barrier to such arguments.

C. Implications for Prosecutorial Argument

The previous discussion of issues appropriately considered by the Georgia sentencing jury is necessarily general.

However, it provides a guideline for determining the scope of proper prosecutorial argument. With regard to the sentencing jury’s first task, it would be improper for a prosecutor to urge the jury to find a statutory aggravating circumstance on any basis other than the relevant facts introduced in evidence and the proper inferences therefrom.⁴⁰ Concerning the exercise of discretion after an aggravating circumstance has been found, arguments outside the realm of recognized sentencing concerns — e.g., we noted that the individual circumstances of the crime and defendant, future dangerousness, rehabilitation and penological jus tifications for the death penalty are within the realm of recognized sentencing concerns — run the risk of being improper because they urge death for possibly irrelevant reasons. Of course, not all improper arguments will rise to the level of fundamental unfairness. Similarly, an argument based on one of these core concerns may, under certain conditions, be improper in its mode of presentation to the jury.⁴¹ The general standards are helpful, however, as a means of focusing counsel on the true task before the sentencing jury. That task is broad enough that much safe ground for argument is available.

We now examine Whisnant’s argument during Brooks’ sentencing in light of these guidelines.

IV. PROPRIETY OF THE PROSECUTORIAL ARGUMENT IN THIS CASE

Brooks complains of 12 separate portions of the prosecutor’s argument in the sen-fencing phase of this case. We discuss each seriatim.

1. Brooks first complains of Whisnant’s brief expressions of his own personal belief in the death penalty. An attorney’s personal opinions are irrelevant to the sentencing jury’s task. United States v. Morris, 568 F.2d 396, 401 (5th Cir.1978).⁴² We will consider the effect of these statements in Part V.

2. Following the initial expression of belief in the death penalty, Whisnant represented that the Georgia crime rate had gone up since 1964, the date of the last state execution. Brooks argues that this statement, along with the assertion that “we didn’t have this kind of murder ... when we had captial punishment,” was improper.

Whisnant’s reference to the increasing crime rate concerned the need for deterrence. Although there was no record evidence on the crime rate, the reference was acceptable because the increase in crime is “within the common knowledge of all reasonable people.” Tenorio v. United States, 390 F.2d 96, 99 (9th Cir.) (prosecutorial reference, in prosecution for importation of heroin, to “the destruction and the human waste which arises from the use of heroin” acceptable as common knowledge), cert. denied, 393 U.S. 874, 89 S.Ct. 169, 21 L.Ed.2d 145 (1968); see Gregg v. Georgia, 428 U.S. 153, 187 n. 34, 96 S.Ct. 2909, 2931 n. 34, 49 L.Ed.2d 859 (1976) (noting 123% increase in murders from 1964 to 1974). Thus, the mere reference to an increasing crime rate was not improper.

The more crucial claim is that there is no support for the part of the argument attributing the increase in crime to the absence of executions. There was no record evidence of the deterrent effect of capital punishment.

As we have noted in Part III.B. of this opinion, deterrence is a valid consideration of a sentencing jury in a capital case. Although the Supreme Court has recognized the inconclusive nature of the scholarly debate on the subject, it has also held that capital punishment has “little or no deterrent effect” on some murders while “undoubtedly” deterring other such crimes. Gregg v. Georgia, 428 U.S. 153, 185, 96 S.Ct. 2909, 2930, 49 L.Ed.2d 859 (1976). In addition to recognizing some causal link between the penalty and deterrence, the Court held that the general issue of deterrence was a complex factual issue best left for resolution by legislatures. It thus deferred to the Georgia legislature’s decision that capital punishment is appropriate in some cases. Id. at 186, 96 S.Ct. at 2931. The prosecutor need not adduce evidence, therefore, to prove the link between death and deterrence. An argument such as the one made by Whisnant, urging the Jurors to consider the deterrent effect of the penalty, is not improper.⁴³

3. Whisnant discussed the victim by emphasizing her youth, attractiveness, and kind disposition. Brooks argues that these remarks were wholly irrelevant and highly prejudicial.

It would be clearly improper for a prosecutor to urge the imposition of death because of the race, religion, sex, or social status of the victim. Any reference to such potentially prejudicial characteristics must be undertaken only with the greatest of care and only when the reference is relevant to some legitimate issue in the case. Excessive focus on the characteristics of the victim, even if no explicit link is drawn between those factors and the punishment sought, may also be improper when the effect is to inject irrelevant considerations into the sentencing decision. See, e.g., Vela v. Estelle, 708 F.2d 954 (5th Cir.1983) (two witnesses, a well-known football player and the victim’s widow, testified in great detail that murder victim was kind, inoffensive, a star athlete, a church usher and choir member, a social worker with underprivileged children of all races, a college student holding down two jobs, and the father of a three-year old child — when all such evidence was irrelevant to any issue and legally inadmissible; the failure of counsel to object contributed to a finding of ineffective assistance), cert. denied, — U.S. -, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984). While argument focusing on the victim can be dangerous, not all prosecutorial references to the victim are improper. The fact that there is a victim, and facts about the victim properly developed during the course of the trial, are not so far outside the realm of “circumstances of the crime” that mere mention will always be problematic. It is not necessary that the sentencing decision be made in a context in which the victim is a mere abstraction.

Here, Whisnant asked the jury to remember “the person who is not here ... Carol Jeannine Galloway.” He then ticked off some personal attributes shown by the evidence, i.e., that she was a pretty, 23-year old, unmarried woman living with her parents and that she was a considerate person of high morals. These comments did personalize the victim, but they were brief enough that we cannot conclude that they injected prejudicial or irrelevant material into the sentencing decision.

4. Whisnant also mentioned the Galloway family. By way of rebutting an attempted defense argument based on sympathy for Brooks’ family, the prosecutor reminded the jury of the Galloway’s tragedy and noted that “next week when it’s Thanksgiving and they are sitting around the table, Carol Jeannine won’t be there, and never will be there again.” This true statement was no more than a compelling statement of the victim’s death and its significance, relevant to the retributive function of the death penalty. It was proper.

5. The discussion of the prosecutor’s practice of seeking death only in a few cases during the past years was improper. That claim was unsupported in the evidence and, at best, irrelevant. Conner v. State, 303 S.E.2d at 276 (“The portion of the prosecutor’s argument referring to his prior criminal experience and the frequency with which he had sought the death penalty was not supported by any evidence and, moreover, was not relevant to any issue in the case. The argument therefore was improper”). Furthermore, it improperly implied to the jury that the prosecutor’s office had already made the careful judgment that this case, above most other murder cases, warranted the death penalty. In this respect, the argument is similar to a prosecutorial argument at trial to the effect that “we only prosecute the guilty.” Such an argument is clearly improper because:

The remark is, at the least, an effort to lead the jury to believe that the whole governmental establishment had already determined the appellant to be guilty on evidence not before them____[Citation omitted]. Or, arguably, that may be construed to mean that as a pre-trial administrative matter the defendant has been found guilty as charged else he would not have been prosecuted and that the administrative level determination is either binding upon the jury or else highly persuasive to it.

Hall v. United States, 419 F.2d 582, 587 (5th Cir.1969). Because the jury is empowered to exercise its discretion in determining punishment, it is wrong for the prosecutor to undermine that discretion by implying that he, or another high authority, has already made the careful decision required. This kind of abuse unfairly plays upon the jury’s susceptibility to credit the prosecutor’s viewpoint. The effect of this improper argument will be considered carefully in Part V of this Section.

6. Brooks next complains that the prosecutor improperly diluted the jury’s sense of responsibility by arguing that it would not be “responsible” for Brooks’ death. Arguments that trivialize the task of a sentencing jury — for example, arguments suggesting that appellate courts will correct any errors — are barred under Georgia law. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977). The prosecutor’s reference to the role of other participants in the criminal justice system, e.g., the investigating police, the grand jury, and the prosecutorial staff, according to Brooks' interpretation, was an attempt to undermine the jury’s sole responsibility for the awesome life or death decision by suggesting that the decision was shared with others in the criminal justice system.

However, the more apparent purpose of Whisnant’s argument was simply that Brooks himself was responsible for his plight. He argued that Brooks was a grown man, knew what he was doing on the day of the crime, and that Brooks himself — not the investigating police, the grand jury, the prosecutorial staff or the jury — was responsible for his punishment. Such an argument was not improper.

Although an attempt by the prosecutor to dilute a jury’s sense of responsibility for deciding the case clearly would be improper, the best argument that Brooks can make here is that the challenged remarks are ambiguous.⁴⁴ The Supreme Court has directed, however, that “a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeCkristoforo, 416 U.S. at 647, 94 S.Ct. at 1873. Thus, we discount the, improper interpretation urged by Brooks.

7. Whisnant argued that Brooks himself believed in the death penalty, as evidenced by the killing of Galloway, and noted that the victim did not have lawyers or a judge or any other procedural safeguards. VBrooks asserts that this comment was an attempt to provoke a negative reaction against him merely because he was exercising the procedural rights to which he was entitled.

It is improper to urge that a criminal defendant’s exercise of constitutional rights is a ground for discrediting his defense. See, e.g., Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (Fifth Amendment right to remain silent at trial commands that prosecutor and judge not make adverse comment about defendant’s exercise of the right). Similarly, it is wrong to imply that the system coddles criminals by providing them with more procedural protections than their victims. A capital sentencing jury’s important deliberation should not be colored by such considerations.

Although the remarks, as interpreted in the manner urged by Brooks, clearly would be improper, the more obvious interpretation of the argument is not. Correctly anticipating a defense argument that the death penalty is bad,⁴⁵ Whisnant argued that Brooks himself believed in the death penalty. The thrust of the argument was that Brooks’ execution of Galloway in a manner much more horrible than a procedurally proper, legal execution demonstrated Brooks’ belief in the death penalty. Following the command of Donnelly v. De-Christoforo, 416 U.S. at 647, 94 S.Ct. at 1873, that “a court should not lightly infer that a prosecutor intended an ambiguous remark to have its most damaging meaning,” we doubt that the jury understood the remark in the improper way suggested by Brooks.

8. Arguing against the wisdom of imposing a life sentence on Brooks, Whisnant focused on the future dangerousness of the defendant. He suggested that Brooks might kill a guard or a fellow prisoner. He even noted the possibility that he might escape and asked “Whose daughter will it be next time?” Similar remarks were part of an argument found fundamentally unfair by this court in Hance v. Zant, 696 F.2d 940 (11th Cir.1983). Although these arguments were dramatic, they were directly relevant to the consideration of whether Brooks would remain a threat to society.⁴⁶ Our discussion above demonstrates that such consideration is a proper element in the sentencing jury’s decision. See, e.g., Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). A legitimate future dangerousness argument is not rendered improper merely because the prosecutor refers to possible victims. In this case, the arguments about Brooks’ future dangerousness were appropriate inferences from the record before the jury.

9. It was clearly improper for Whisnant to argue that death should be imposed because it is cheaper than life imprisonment. The factual assertion was completely unsupported. More important, cost is not accepted as a legitimate justification for the death penalty. See Gregg v. Georgia, 428 U.S. at 187, 96 S.Ct. at 2931 (accepting deterrence and retribution as justifications for penalty). The jury cannot be exhorted to impose death for that reason. This improper argument will be analyzed further in Part V.

10. Whisnant’s lengthy discussion of the “war on crime” and his analogy of jurors to soldiers contains both proper and improper elements.

Discussion of crime in the Columbus community, well within the common knowledge of the jury, was appropriate as part of Whisnant’s argument about the need for deterrence. The point of this discussion was driven home at the close of the “war on crime” speech when Whisnant returned to the following conclusion:

You can bring back the death penalty and you can tell William Brooks, and you can tell every other criminal like him, that if you come to Columbus and Muscogee County, and you commit a crime, and it’s one of those crimes that’s punishable by death, and if the aggravating circumstances are there, you’re going to get the electric chair....

Arguments about general or special deterrence may be considered by the jury.

The reminder to the jury that “the buck stops with you today” was an appropriate reference to the fact that the jury must make the ultimate decision.

Finally, the analogy of the death penalty to killing in a war was appropriate insofar as it implied that imposing death, while difficult, is at times sanctioned by the state because of compelling reasons (national security or deterring crime). While the phrase “enemy of society” was harsh, we do not seriously fault its application to one whose crime is “so grievous an affront to humanity that the only adequate response may be the penalty of death.” Gregg v. Georgia, 428 U.S. at 184, 96 S.Ct. at 2931.

Our acceptance of part of this argument cannot blind us to its obvious faults. The principal fault of the analogy is that a capital sentencing jury under the Georgia statutory scheme is bound to exercise broad discretion in its determination of a just punishment. This discretion is simply not analogous to the role of a soldier who is ordered to kill the enemy. Using the soldier metaphor, and coupling it with a challenge to the jurors’ patriotism — “When [the soldiers] did a good job of killing ..., we decorated them and gave them citations”; “if we can send a 17-year old young man overseas to kill an enemy soldier, is it asking too much to ask you to go back and vote for the death penalty in this case against William Brooks” — misrepresents the task the jury is charged by law to carry out. See, e.g., Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943). The main thrust of death penalty jurisprudence since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), has been the need for guided discretion in the sentencing body’s individualized consideration of the capital defendant. See, e.g., Zant v. Stephens, supra. Conceiving of the jurors as soldiers undermines the crucial discretionary element required by the Eighth Amendment. . Discussing the broad “criminal element” and then seeking death for Brooks because “he’s a member of the criminal element” undermines the requirement that sentencing consideration be individualized by introducing the improper suggestion that Brooks be killed merely because he is a criminal. In these respects, the “war on crime” argument was improper. In Part V, we will consider factors that mitigated the argument and carefully weigh its impact on the jury.

11. Whisnant analogized Brooks to a “cancer on the body of society.” While dramatic, the metaphor went directly to the appropriate concern for whether Brooks would continue to be a threat to society. The evidence before the jury supported Whisnant’s assertion that he would be dangerous.

12. Finally, Whisnant described the facts as follows:

He was just walking along with a pistol in his pocket, and decided “well, I’ll make a hustle,” to use their language, his language.

Brooks claims this remark was a racial slur, the word “their” used to highlight the fact that he was black to the all-white jury.

Even if brief, use of race as a factor in closing argument obviously would be improper, United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir.1973), and would have great potential for prejudice. We conclude, however, that the challenged reference was not a racial slur. Witness Marvin Brown had testified that Brooks, in telling Marvin about the crime, had used the term “hustle” to indicate that he had robbed the victim. Thus, Whisnant’s reference to “their language” was simply quoting Brown and, by implication, Brooks.

V. WAS THE SENTENCING HEARING FUNDAMENTALLY UNFAIR?

In the preceding section we identified four troubling segments of Whisnant’s argument — his expressions of personal belief in capital punishment, the discussion of the prosecutor’s policy of rarely seeking the death penalty (the “prosecutorial expertise” argument), the claim that Brooks’ death would save taxpayers money, and the “war on crime” speech.

To determine whether the improper arguments rendered the sentencing fundamentally unfair, we must evaluate whether there is a reasonable probability that, but for those arguments, the death verdict would not have been given. This inquiry involves an evaluation of the improper remarks in the context of the entire proceeding, pursuant to the standards described in Part II of the opinion. We first consider the severity of the improper arguments.

Of primary concern is the prosecutorial expertise argument. The argument improperly suggested that the prosecutor had canvassed all murder cases and selected this one as particularly deserving of the death penalty, thus infringing upon the jury’s decisionmaking discretion and improperly invoking the prosecutorial mantle of authority.⁴⁷ Recognizing the significant potential for prejudice, we nevertheless point to some, mitigation of the adverse impact. The prosecutor did not simply state that he had selected this case from among the mass of cases; rather, he expressly laid out before the jury his reasons for selecting this ease, i.e., because the crime itself was horrible, because the evidence of .guilt was overwhelming, and because Brooks could not be rehabilitated. Thus the prosecutor revealed to the jury the underlying facts on which his selection was made, and the jury could then determine for itself the validity of each underlying factor and the degree to which each factor indicated that death was appropriate.

The adverse impact of the argument was further alleviated by the repeated emphasis of the entire proceeding that the jury, and not the prosecutor or anyone else, was vested with the awesome decision as to whether Brooks should live or die. The thrust of Whisnant’s argument itself was to this effect. At the beginning of his argument, he advised the jury that “you’ve got to decide what kind of punishment fits that crime, whether he gets life imprisonment, or death in the electric chair.” Throughout, his argument was couched in terms of urging the jury to impose the death penalty, and at one point he advised the jury that the “buck stops with you today.” He concluded his argument by asking the jury to go to the jury room, consider all the facts and circumstances of the case, and bring back a verdict that Brooks be put to death in the electric chair.

Counsel for Brooks also made it unmistakably clear to the jury that it had the sole responsibility for deciding whether Brooks should get life imprisonment or death. Specifically responding to the implication in Whisnant’s argument that the grand jury, the prosecutor, the executioner and others shared responsibility with the jury, defense counsel pointed out: “None of those people that he named had the decisionmaking responsibility, only you twelve have that decisionmaking responsibility, whether this man lives or this man dies.” His argument began with the acknowledgement that the jurors had before them the hardest decision of their lives, and ended with a request that the jury impose life imprisonment.

Most importantly, the judge’s instructions to the sentencing jury explicitly and unambiguously placed the sole responsibility on the jury. In the first paragraph, the judge charged “it is now your duty to make certain decisions that will affect the sentence.” He then stated flatly that “if you recommend the death penalty, then the court is required by law to sentence the defendant to death____ On the other hand, you can see fit ... to recommend mercy for the defendant, if this should be your finding, then in that event the court is required by law to sentence the defendant to life imprisonment.”

For the foregoing reasons, we are satisfied that the jury labored under no misperception as to its role; the jury clearly understood that it alone bore the responsibility for deciding whether Brooks should live . or die.⁴⁸ We acknowledge, however, a lingering concern over whether the jury was influenced to some extent by the prosecutor’s suggestion that he, based upon his wider knowledge of crimes committed in the county, had chosen this particular case as eligible for death.

The “war on crime” argument is also troubling. The improper aspect of the argument was the suggestion that the jurors should forego an individualized consideration of Brooks’ case and instead choose execution merely because he was part of the broad “criminal element” terrorizing American society. Although the “war on crime” argument did contain references more appropriately focusing on the particular case before the jury, the fact that its improper suggestion was diametrically opposed to the requirement that capital sentencing be individualized demands careful scrutiny to determine whether the jury correctly understood its sentencing duty. ■

The main thrust of Whisnant’s argument was not to exhort the jury to impose the penalty merely because Brooks was a member of the criminal element. Whisnant expressly suggested to the jury that the death penalty should be imposed because the crime that Brooks committed was horrible, because the evidence of his guilt was overwhelming, because Brooks showed no remorse, and because there was no chance that Brooks could be rehabilitated. He reminded the jurors that they had indicated at voir dire that they could vote for the death penalty if the facts and circumstances of the case warranted it. Whisnant concluded his argument by saying “we’re asking you again to go back to the jury room and to deliberate, and to talk about the facts and circumstances of this case.”

Similarly, the closing argument for the defense revealed the inapplicability of Whisnant’s “war on crime” analogy. The defense counsel pointed out that a soldier is not asked to make a decision, while the jury in this case was vested with the decisionmaking responsibility as to whether Brooks should live or die. The defense also argued that the evidence of guilt was not overwhelming, and pointed to the evidence of Brooks’ harsh childhood as a possible explanation of why he may have gone astray.

Most importantly, the judge’s instructions to the jury focused attention on the individualized facts and circumstances of the case. He charged that their first responsibility was to determine whether there were any aggravating or mitigating circumstances, and then even if the jury found beyond a reasonable doubt that there were aggravating circumstances, the jury would have to decide whether to recommend a life sentence. The judge expressly charged the jury that, in arriving at its determination, it should consider all of the evidence received throughout both stages of the trial and all facts and circumstances in mitigation and aggravation.

We therefore conclude that the emphasis of the entire proceeding adequately insured that the jury would base its decision on a consideration of the individualized facts before it, and not on the basis of the inconsistent suggestion that mere membership in the broad criminal element merited execution.

Finally, the argument that an execution would save tax dollars was undeniably improper. Its potential effect was somewhat minimized by the brevity of the comment and by Whisnant’s own tentativeness in asserting it.⁴⁹

Although we cannot conclude that these few improper arguments had no prejudicial effect on the jury, we are satisfied that the prejudice was not severe.

The evidence that Brooks kidnapped, robbed, raped and killed Galloway was overwhelming.⁵⁰ The sentencing jury found that the murder was “outrageously or wantonly vile, horrible, or inhuman.” Brooks’ crime included armed robbery, kidnapping, rape, as well as murder; the murder was preceded by both physical and psychological abuse, and the ■ victim was left to slowly bleed to death. While there was evidence in mitigation of the crime, in the nature of testimony that Brooks suffered a harsh childhood and frequent beatings by his step-father, we cannot conclude that the jury would view the evidence as commanding. Although the instant case is not among the most egregious cases in which the death penalty has been imposed, neither is it among the least egregious.

Considered in light of all facts and circumstances of the case, the improper arguments, most of which were mitigated by other arguments and instructions by the court, were not sufficient to undermine confidence in the outcome. We are satisfied that the death verdict here was imposed because of valid sentencing considerations, and we thus conclude that there is no reasonable probability that the prosecutorial misconduct changed the outcome. Brooks’ sentencing phase was not fundamentally unfair.⁵¹

For the foregoing reasons, the district court correctly declined to grant the writ of habeas corpus on the ground of prosecutorial misconduct at the sentencing phase.

SECTION THREE: CONCLUSION

For the reasons stated in Section One, the judgment of the district court in denying habeas corpus relief on the Sandstrom issue is REVERSED. The case is remanded to the district court with instructions to grant the writ of habeas corpus with respect to the malice murder conviction only, conditioned upon the state’s affording Brooks a new trial.

For the reasons stated in Section Two, the judgment of the district court denying habeas corpus relief on the prosecutorial argument issue is AFFIRMED.

With respect to the other issues on appeal, we reinstate the panel opinion AFFIRMING the district court’s denial of habeas corpus relief on each ground.

APPENDIX A

CHARGE OF THE COURT

Ladies and gentlemen of the jury, the Grand Jury of Muscogee County for the August term of 1977, found and returned into Court, this Bill of Indictment charging and accusing William Anthony Brooks with the offense of murder. The indictment says that the accused, in the County of Muscogee, in the State of Georgia, did on the 15th day of July, 1977, unlawfully, with malice aforethought, kill and murder one, Carol Jeannine Galloway, by then and there shooting her with a pistol, contrary to the laws of said State, the good order, the peace and the dignity thereof.

Now, Count Two of that indictment, ladies and gentlemen, says that the Grand Jurors aforesaid, on their oath aforesaid, in the name and behalf of the citizens of Georgia, charge and accuse William Anthony Brooks with the offense of kidnapping, for this count of the indictment says that the accused, in the County of Muscogee, and State of Georgia, did on the 15th day of July, 1977, unlawfully abduct and steal away one, Carol Jeannine Galloway, and did hold the said Carol Jeannine Galloway against her will, without authority or warrant, and the said William Anthony Brooks did inflict bodily injury upon the said Carol Jeannine Galloway while holding her against her will and without authority, by raping and murdering her, contrary to the laws of said State, the good order, the peace and the dignity thereof.

Now, Count Three of that indictment, ladies and gentlemen, says that the Grand Jurors aforesaid, on their oaths aforesaid, in the name and behalf of the citizens of Georgia, charge and accuse William Anthony Brooks with the offense of rape, for this count of the indictment says that the accused, in the County of Muscogee, and State of Georgia, did on the 15th day of July, 1977, unlawfully have carnal knowledge of the person of Carol Jeannine Galloway, a female, forcibly and against her will, contrary to the laws of said State, the good order, the peace and the dignity thereof.

Count Four of that indictment, ladies and gentlemen, says that the Grand Jurors aforesaid, on their oath aforesaid, in the name and behalf of the citizens of Georgia, charge and accuse William Anthony Brooks with the offense of armed robbery, for this count of the indictment says that the accused, in the County of Muscogee, and State of Georgia, did on the 15th day of July, 1977, unlawfully by the use of an offense weapon, to wit: a pistol, take from the possession and immediate presence of Carol Jeannine Galloway, with the intent to steal the same, twenty dollars in lawful money of the United States in the value of $20.00, and one 1977 model, yellow, two-door, Fiat automobile of the value of thirty-six hundred, twenty-eight dollars and sixty cents, contrary to the laws of said State, the good order, the peace and the dignity thereof.

Now, ladies and gentlemen, to that indictment, and to each count of the indictment, this defendant comes into Court, and enters his plea of not guilty. The indictment is not evidence, and it should not be considered as evidence by you. The indictment, together with the defendant’s plea of not guilty, forms the issue that you, ladies and gentlemen, have been sworn and impaneled to try and to pass upon.

This defendant enters upon the trial of this case with the presumption of innocence in his favor, and that presumption remains with him and enshrouds him throughout the trial of this case, until and unless the State produces evidence in your presence and hearing sufficient to convince you of the guilt of the accused of the crime charged. The State makes the charge set out in each count of this criminal bill of indictment, and the burden rests upon the State to establish by proof the truth of every material allegation in the indictment beyond a reasonable doubt before a verdict of guilty would be authorized.

Now, ladies and gentlemen, a reasonable doubt means exactly what it says, it is a doubt that is founded upon reason, and it may grow out of the evidence, or want of evidence. And, while the law requires the State to prove the guilt of the accused of the crime charged beyond a reasonable doubt, yet the law does not require the State to prove the guilt of the accused to an absolute nor a mathematical certainty.

A reasonable doubt, ladies and gentlemen, is not a fanciful doubt, an imaginary doubt, a conjectural doubt, nor a speculative doubt, and neither does it mean a possibility that the defendant may be innocent. But, as I have stated to you, it is a doubt that is founded upon reason, and such a doubt that a conscientious juror would have who is honestly seeking the truth of this case, after thoroughly evaluating the evidence and the testimony, and a doubt that leaves your mind wavering and unsettled as to what the truth, is. The object of all legal investigations, ladies and gentlemen, is the discovery of the truth.

Now, the credibility of the witnesses is a matter to be determined by you under the instructions of the Court. You are the sole and the exclusive judges of the credibility of the witnesses, and in determining the credibility of the witnesses, you may consider all the facts and all the circumstances of this case. The witnesses’ manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they have testified, the nature of the facts to which they have testified, the probability or improbability of their testimony, their interest, or want of interest, and also their personal credibility, insofar as the same may legitimately appear to you upon the trial of this case.

Now, ladies and gentlemen, should there appear to you to be a conflict between the testimony of the witnesses, it would be your duty, if you can, to reconcile that conflict so as to make every witness speak the truth, and so as to impute perjury to no witness. If, however, ladies and gentlemen, you cannot thus reconcile it, then it would become your duty to believe that witness, or those witnesses, whom you think most entitled to credit and belief.

Now, ladies and gentlemen, criminal intent being an essential element of every crime, it is a question of fact to be determined by you whether such intent existed in the mind of this defendant at the time of the alleged crime. Intent can be established by evidence, but it must be evidence which will satisfy your minds beyond a reasonable doubt. Intent may be shown in many ways, ladies and gentlemen, provided you find that it existed from the evidence produced before you during this trial. It may be inferred from proven circumstances, or by acts and conduct of the defendant, or it may be presumed when it would be the natural and necessary consequence of that act. Stated simply in layman’s language, ladies and gentlemen, criminal intent simply means the intent to commit an act which the laws of the State of Georgia prohibit and forbid.

Now, I instruct you, ladies and gentlemen, that testimony has been given by certain witnesses who in law are termed experts, and in this connection I instruct you that in cases such as this one being tried, the law permits the evidence of men expert in certain lines as to their opinions derived from their knowledge of particular matters, yet the ultimate weight which is to be given to the testimony of an expert witness is a question to be determined by you, ladies and gentlemen of this jury. In other words, ladies and gentlemen, the testimony of an expert, like that of any other witness, is to be received by you and given such weight as you think it is properly entitled to. You are not bound or concluded, ladies and gentlemen, by the opinion testimony of any witness, expert or otherwise.

Now, I instruct you that when witnesses appear and testify, they are presumed to speak the truth, and are to be believed by you unless impeached in some manner provided by law, or otherwise discredited in your judgment. A witness may be impeached by disproving the facts testified to by the witness, or by proofs of contradictory statements previously made by the witness on matters relevant to the witness’ testimony and to this case. Statements made out of Court and not under oath are not evidence, but they are to be considered by you, ladies and gentlemen, on the question of impeachment, or discrediting the witness attacked. When the credibility of a witness is attacked, as by an effort to impeach him by any of the efforts the Court points out, then you, ladies and gentlemen, become the triers of the credibility of the witness sought to be impeached, and of the witness or witnesses by whose testimony the attack may be made. You are to weigh the opposing testimony, ladies and gentlemen, and at last say whether you will discredit the testimony of the witness sought to be impeached and consequently give credit to that introduced by way of impeachment, or whether you will discredit that introduced by way of impeachment, and credit the testimony of the witness attacked.

In other words, ladies and gentlemen, it is your exclusive province, under all the attendant circumstances of this case, to determine whether or not a witness has, or has not been successfully impeached, but where his unworthiness of credit is absolutely established in your minds, he ought not to be believed, and it would be your duty to disregard the testimony of that witness, unless it is corroborated, in which case you may believe the witness, it being a matter, of course, ladies and gentlemen, always for you to determine whether or not a witness has, or has not been in fact impeached. The credit to be given to witnesses’ testimony where impeached for contradictory statements made out of Court shall be strictly for you, ladies and gentlemen, to determine.

Now, ladies and gentlemen, direct evidence is that which immediately points to the question at issue. Indirect or circumstantial evidence is that which only tends to establish the issue by proof of various facts, sustained by their consistency, the hypothesis claimed. And, I instruct you that in order to warrant a conviction on circumstantial evidence, the proven facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.

Now, ladies and gentlemen, I instruct you that a person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears to you that there was no criminal scheme, or undertaking, or intention, or criminal negligence.

Now, ladies and gentlemen, there’s another rule of law that I call your attention to, and that is the flight, if any, and similar acts, if proven, from which an inference of guilt may be drawn, and these may be considered by you. But flight, ladies and gentlemen, is subject to explanation. The weight to be given it, whether you, ladies and gentlemen, will draw an inference of consciousness of guilt from it or not is strictly a question that you must determine. It is for you, ladies and gentlemen, to determine whether there was flight, if such has been proven, and if so whether it was due to a sense of guilt or from some other reason, and if from some other reason, no inference hurtful or harmful to this defendant shall be drawn by you.

Now, ladies and gentlemen, the State contends, which the defendant denies, that the defendant made a statement amounting to a confession. It will be for you, ladies and gentlemen, to determine from the testimony whether or not this defendant made an admission amounting to a confession. You will determine that, ladies and gentlemen, from the testimony you have heard during the trial of this case. To make a confession admissible in evidence, it must have been freely and voluntarily made, without being induced by another by the slightest hope of benefit, or by the remotest fear of injury. And in order for you, ladies and gentlemen, to find any such statement to have been thus freely and voluntarily made, you must also determine that the accused fully understood his rights guaranteed to him by the Constitutions of the United States and the State of Georgia, that is, his right to remain silent, that he understood that anything he might say could be used in a Court of Law against him; that he understood that he had the right to say nothing that might in any way incriminate him; and that he had the right to have counsel of his choice, or one appointed by the State to advise with him prior to making any statement and during the making of any statement, and further, you must determine that the defendant understood these rights and intelligently waived them.

The law says that all admissions should be scanned with care, and confessions of guilt should be received with great caution. A confession alone, without corroboration, would not be sufficient in law upon which to base a conviction. Corroboration would be such facts and circumstances as in your mind would tend to connect the defendant with the crime as charged; proof of the corpus delicti beyond a reasonable doubt, that is ladies and gentlemen, that the crime itself was in fact committed, may be, but is not necessarily sufficient corroboration of a confession. The law does not fix the amount of corroboration necessary, you, ladies and gentlemen, are the judges of whether other evidence sufficiently corroborates a confession to justify a conviction. If you find there was a confession properly made, and corroborated by other evidence, the degree of proof necessary to convict is that you must be satisfied of the guilt of this accused beyond a reasonable doubt.

Now, ladies and gentlemen, this defendant is charged in this Bill of Indictment with multiple offenses, and I instruct you that in your deliberations you must make a determination of his guilt or innocence as to each count of the indictment independently and separately from the other counts of the indictment. In count one, ladies and gentlemen, this defendant is charged with the offense of murder. The law of the State of Georgia says that a person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied, the law says, when no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.

The law, ladies and gentlemen, presumes every homicide to be malicious until the contrary appears from circumstances of alleviation, excuse or justification, and it is incumbent upon the accused to make out such circumstances to your satisfaction unless they appear from the evidence produced against him.

I instruct you, ladies and gentlemen, that legal malice is not necessarily ill will or hatred, it is the unlawful intent to kill a human being without justification or mitigation, which intention, ladies and gentlemen, however, must exist at the time of the killing as alleged. Under the law it is the fixed and deliberate purpose in the mind of the slayer to unlawfully take away the life of a human being under circumstances that the law would neither mitigate, justify nor excuse. Under the law it is not necessary that it should exist for a considerable time; under the law if it should exist for just one moment, and if death should ensue in consequence of such fixed and deliberate purpose, the killing would be murder.

In legal contemplation, ladies and gentlemen, a person may form the intention of doing some act at a particular instant, commit the act, and regret it as soon as it is done.

Now, in count two, ladies and gentlemen, in this Bill of Indictment, this defendant is charged with the offense of kidnapping. The law of the State of Georgia says that a person commits kidnapping when he abducts or steals away any person without lawful authority or warrant, and holds such person against their will.

In count three of the indictment, ladies and gentlemen, this defendant is charged with the offense of rape, and the law of the State of Georgia says that a person commits rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge and rape occurs when there is any penetration of the female sex organ by the male sex organ.

In count four of this Bill of Indictment, ladies and gentlemen, this defendant is charged with the offense of armed robbery. The law of the State of Georgia says that a person commits armed robbery when, with the intent to commit theft, he takes the property of another from the person or the immediate presence of another by use of an offensive weapon. The law further says, ladies and gentlemen, that the offense of robbery by intimidation shall be a lesser and included offense in the offense of armed robbery. And, the law says that a person commits robbery when, with the intent to commit theft, he takes the property of another from the person or the immediate presence of another, by intimidation, by the use of threat, or coercion, or by placing such person in fear of immediate serious bodily injury to himself or another. The offense of robbery by intimidation, ladies and gentlemen, is a lesser and included offense in the offense of armed robbery.

Now, ladies and gentlemen, as I have stated to you, you must make a determination of the guilt or innocence of the defendant on each count of the indictment separately and independently of the others.

If your verdict be identical as to all four counts of the indictment, then you may state, “We, the jury, find the defendant thus — ” either guilty or not guilty, “on all four counts.” If it be different as to one count, ladies and gentlemen, as distinguished from another count, then you must state how you find on this particular count.

Now, if you believe — after you have retired and selected a member of your body as foreman, and the instructions I give you apply separately to each count of the indictment, if you believe the defendant guilty of the offense as charged in that count of the indictment, and if you believe that beyond a reasonable doubt, then you would be authorized to convict him, and in that event the form of your verdict would be, “We, the jury, find the defendant guilty.”

Now, as to count four of the indictment, ladies and gentlemen, wherein this defendant is charged with the offense of armed robbery, if you determine that the defendant is not guilty of the offense of armed robbery as charged in the indictment, or if you entertain a reasonable doubt as to his guilt of that offense, then of course/ you should acquit him. If you acquit him of the offense of armed robbery, then you would go further and consider whether— and determine whether or not the defendant is- guilty of the offense of robbery by intimidation, which as I’ve stated to you is a lesser and included offense in the offense of armed robbery. Should you believe the defendant under those circumstances guilty of the offense of robbery by intimidation, and should you believe that beyond a reasonable doubt, then of course, as to that count the form of your verdict would be, “We, the jury, find the defendant guilty on count four of the offense of robbery by intimidation.”

Now, ladies and gentlemen, should you believe the defendant is not guilty of any offense as charged in the counts of the indictment, in each count of this indictment, or should you entertain a reasonable doubt as to his guilt of the offense as charged in that count, then of course, it would be your duty to acquit him, and in that event the form of your verdict would be, “We, the jury, find the defendant not guilty.”

I ask you to retire, and after you have unanimously agreed upon your verdict, ladies and gentlemen, enter it upon the back of the Bill of Indictment in the space that you will-find there provided for that purpose and for your convenience, have your foreman to date it, and sign it, and return it into Court. If you need additional space on the back of the indictment other than the form I have suggested, you may use any available space on the back of the indictment.

Please retire at this time to the jury room, ladies and gentlemen.

1 . Brooks also claims that improper prosecutorial argument during the guilt phase of his trial rendered that phase fundamentally unfair. The panel rejected Brooks’ argument with respect to the guilt phase; we agree with both the judgment and reasoning of the panel in this regard.

2 . Although defense counsel made no objection to the jury charge at trial, there is no procedural default because the state court reached the Sandstrom issue on the merits, Brooks v. Zant, No. 5142, slip op. 16-17 (Sup.Ct. Butts Cty. Feb. 2, 1982), cert. denied, 459 U.S. 882, 103 S.Ct. 183, 74 L.Ed.2d 148 (1982), and the state has not claimed procedural default in this court or the district court; nor has it argued that defense counsel’s failure to object should otherwise affect the Sandstrom analysis.

3 . The entire jury charge is attached as Appendix A to this opinion.

4 . Although there was in fact no hint of provocation, there was an issue of accident, see infra at 1392, which might be considered an aspect of justification. Thus, one of the building blocks on which the state constructs its argument is undermined. In fact, the state’s argument focuses the error on the very sub-issue, i.e., whether the killing was non-accidental, as to which there is not overwhelming evidence, and as to which there might have been a reasonable doubt. See infra Part II of Section One.

5 . The intent instruction to which the state refers reads as follows:

Now, ladies and gentlemen, criminal intent being an essential element of every crime, it is a question of fact to be. determined by you whether such intent existed in the mind of this defendant at the time of the alleged crime. Intent can be established by evidence, but it must be evidence which will satisfy your minds beyond a reasonable doubt. Intent may be shown in many ways, ladies and gentlemen, provided you find that it existed from the evidence produced before you during this trial. It may be inferred from proven circumstances, or by acts and conduct of the defendant, or it may be presumed when it would be the natural and necessary consequence of that act.

(Emphasis added). It is true that this court in Lamb construed an identical intent instruction as being permissive, Lamb v. Jernigan, 683 F.2d 1332, 1338-40 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983), and that the en banc court in Davis cited Lamb approvingly in this regard. Davis v. Kemp, 752 F.2d 1515, 1518 n. 3 (11th Cir.1985) (en banc).

6 . Accord, Sandstrom v. Montana, 442 U.S. 510, 517, 99 S.Ct. 2450, 2455, 61 L.Ed.2d 39 (1979).

7 . We note that Lamb v. Jernigan is virtually indistinguishable from the instant case. It involved an impermissible malice instruction virtually identical to the instant malice instruction, and also a separate intent instruction which was virtually identical to the intent instruction in this case. The permissive intent instruction in Lamb did not cure the unconstitutional malice instruction, nor does it in this case. See Lamb v. Jernigan, 683 F.2d at 1341.

8 . See McCleskey v. Kemp, 753 F.2d 877, 903-04 (11th Cir.1985) (en banc).

9 . The reason for this focus is apparent. In the usual case, as in Davis, the erroneous intent instruction could not possibly affect the jury’s determination of who the killer was.

10 . See Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 977, 74 L.Ed.2d 823 (1983) (Black-mun, J., writing for a plurality of four justices) ("In addition, a Sandstrom error may be harmless if the defendant conceded the issue of intent____ In presenting a defense such as alibi, insanity, or self-defense, a defendant may in some cases admit that the act alleged by the prosecution was intentional, thereby sufficiently reducing the likelihood that the jury applied the erroneous instruction as to permit the appellate court to consider the error harmless____ We leave it to the lower courts to determine whether by raising a particular defense or by his other actions, a defendant himself has taken the issue of intent away from the jury”).

If a Sandstrom error can be harmless when the issue of intent is conceded, it is only a short step to hold that the harmless error doctrine should similarly be applicable where a defendant does not formally concede intent, but focuses his defense entirely upon alibi or a similar defense, in the face of overwhelming evidence that whoever committed the offense did so intentionally. When such overwhelming evidence of intent is left wholly unrebutted, it is not unreasonable to think that an appellate court can, depending upon all the facts and circumstances of the case, be satisfied beyond a reasonable doubt that the error was harmless. The appellate court can do so just as readily as in a case where the issue of intent was conceded.

11 . Only one witness, a 12-year old girl, actually made a positive identification of the other man during a line-up.

12 . It should be noted that the prosecutor’s description of Brooks’ statement was somewhat of an embellishment, as Brooks never admitted to having his finger on the trigger.

13 . We acknowledge that in the instant case the harmless error determination presents a closer question than in Franklin. The evidence of accident in Franklin was stronger than in this case; the evidence of intent and malice in this case is stronger than that which was present in Franklin.

14 . The state argues that the instruction is harmless because there was overwhelming evidence that Brooks did kidnap, rape, rob and kill Galloway. See abo the panel opinion in this case. Brooks v. Francb, 716 F.2d 780, 794 (11th Cir.1983), vacated for reh’g en banc, 728 F.2d 1358 (1984). Davb demonstrates, however, the fallacy of the state’s argument — the failure to distinguish between the issue of who was the killer and the issue of the killer's intent. Although there is overwhelming evidence in this case that Brooks was the killer, that fact does not constitute overwhelming evidence that the killing was intentional and malicious. Davb, 752 F.2d at 1521 n. 10.

Judge Kravitch’s dissent apparently finds overwhelming evidence of intent to kill from the evidence that Brooks threatened the victim with the loaded and cocked weapon. See post, at 1423 (Kravitch, J., dissenting) ("the jury could not possibly have ignored the evidence that the appellant threatened the victim with a loaded pistol to accomplish the abduction and rape, but not until she began screaming did he aim the pistol at her and cock it or ‘pull the hammer,' a preliminary act to firing the weapon. This evidence, although circumstantial, and based upon Brooks’ confession, nevertheless implies that he pulled the hammer in order to fire the weapon"). Respectfully, we think the dissent has presumed intent to kill merely because of the "natural and probable consequences” of Brooks’ acts. The Supreme Court has only recently held that a jury instruction is unconstitutional if “a reasonable juror could thus have thought that, although intent must be proved beyond a reasonable doubt, proof of the firing of the gun and its ordinary consequences, constituted proof of intent beyond a reasonable doubt____” Francb v. Franklin, — U.S.-,-, 105 S.Ct. 1965, 1973-1974, 85 L.Ed.2d 344 (1985). Obviously, it is possible to threaten with a cocked and loaded weapon without intending to kill, and it seems to us inescapable that the reasonable inferences include not only intent to kill but also intent to threaten. The jury was free to draw either inference. The problem here, however, is that the burden-shifting instruction improperly placed the burden of proof on Brooks.

15 . We might have declined to address Brooks’ prosecutorial argument claim, since our decision on the Sandstrom issue will require a new trial for malice murder and, thus, a new sentencing hearing if Brooks is found guilty on the malice murder charge. However, for the same reasons that it is desirable in many cases for district courts to address alternatively the several claims in capital cases, we exercise our discretion to proceed in this case, in the mode of an alternative holding, to address the issue of prosecutorial argument at sentencing.

16 . Under Georgia law, murder may be punished by death or by life imprisonment. Ga.Code Ann. § 16 — 5 — 1(d) (1982). The decision to seek death in a given case is a matter of prosecutorial discretion.

17 . The detailed recitation of the prosecutor's argument that follows is necessary if one is to understand its overall effect.

18 . The state had not introduced any evidence about crime rates since 1964 nationally or in the Columbus, Georgia, area.

19 . Counsel did not enter any objections during Whisnant’s closing. Although counsel’s failure to object to the argument does not bar our review of the claim in this case, the lack of an objection is a factor to be considered in examining the impact of a prosecutor’s closing argument. United States ex rel. Smith v. Rowe, 618 F.2d 1204, 1211 n. 3 (7th Cir.1980), vacated sub nom, Franzen v. Smith, 449 U.S. 810, 101 S.Ct. 57, 66 L.Ed.2d 13 (1980), reinstated, United States ex rel. Smith v. Franzen, 660 F.2d 237 (7th Cir.1981); cf. United States v. Young, — U.S.-, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (on direct review of federal conviction, failure to object to improper prosecutorial argument is judged under "plain error" standard). The lack of an objection may demonstrate defense counsel's belief that the live argument, despite its appearanee in a cold record, was not overly damaging. Such an implication cannot be drawn from the record here — a colloquy during the defense's closing revealed that Brooks' attorney knew the prosecutor’s argument was objectionable, but abstained from objection out of professional courtesy. Such courtesy should not be maintained in the face of an improper closing argument; errors can be cured more easily by a trial court following instantaneous objection than by a reviewing court laboring to discern the effect of printed words upon an unseen jury. In any event, because we conclude that the arguments were not severe enough here to render the sentencing "fundamentally unfair," we need not consider precisely how the lack of objection should be assessed.

20 . The three aggravating circumstances were (1) that the murder was committed while the offender was engaged in a rape; (2) that the murder was committed while the offender was engaged in an armed robbery; and (3) that the murder was “outrageously, or wantonly vile, horrible or inhumane in that it involved an aggravated battery to the victim." A valid finding of even one of these circumstances would support the death penalty. Because the jury had already found Brooks guilty beyond a reasonable doubt of rape and armed robbery of Galloway, the existence of aggravating circumstances was not in doubt in this case. Thus, the arguments of counsel were not concerned principally with the statutory circumstances rendering Brooks eligible for death, but rather with the jury’s broad discretion to choose between death and life imprisonment.

21 . No instruction was given concerning how to evaluate arguments of counsel.

22 . Hance was prosecuted by the same district attorney’s office in Muscogee County.

23 . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209.

24 . Concerning the jury’s perception of the role of a prosecutor, it is interesting to note that the trial court in Brooks’ case assigned to Whisnant the task of swearing in the jury. The practice of allowing anyone other than the judge or clerk of court to perform this duty was forbidden by statute in 1979. Ga.Code Ann. § 15-12-132 (1982). In Ates v. State, 155 Ga.App. 97, 270 S.E.2d 455 (1980), the Georgia Court of Appeals reversed a conviction obtained following prosecutorial swearing of jurors in violation of the statute, finding that "we are unable to determine the prejudice that may form in the juror’s minds when the oath is administered by the prosecuting arm of the state." 155 Ga.App. 97, 270 S.E.2d at 456.

25 . While the case dealt specifically with errors by counsel at the capital sentencing stage, the Court made clear that the test to be applied should also be used in examining trial errors. Strickland v. Washington, — U.S. -, -, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The application of a uniform standard recognized that capital sentencing, unlike ordinary sentencing, is a highly formal proceeding with an adversarial format and statutory standards for guiding the determination of punishment.

26 . Hance also listed as a factor whether the remarks were deliberately or accidentally placed before the jury. 696 F.2d at 950. While that factor may be more clearly, or more frequently, relevant for a court with supervisory powers over the conduct of the prosecutor, there may be cases where the prosecutor’s intentional conduct rises to a level equivalent to a knowing use of false evidence. See Donnelly v. DeChristoforo, 416 U.S. at 646, 94 S.Ct. at 1872, citing Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967).

27 . Hance v. Zant, 696 F.2d at 950 n. 7, implied that overwhelming evidence of guilt should not contribute to a reviewing court’s conclusion that improper prosecutorial argument did not affect the jury’s decision in the penalty phase. It is true that guilt, by itself, does not justify the death penalty. A Georgia jury must, in addition, find at least one statutory aggravating circumstance and then exercise its broad discretion in deciding the life or death issue on the basis of all the relevant facts and circumstances of the case. On the other hand, if the evidence of the defendant’s guilt were weak, it would clearly be appropriate for the jury and any reviewing court to consider same; an important aspect of jurisprudence in this area is to minimize the risk that an innocent person will be executed. Thus, the overwhelming evidence of guilt factor plays a role in the sentencing phase which is different from its role in the guilt phase.

A different, but related, factor is the strength of the prosecution case for death. This factor should be used only with great caution, keeping in mind that a Georgia jury retains unlimited discretion to grant mercy in even the most egregious cases. However, it is inevitable that our analysis of improper prosecutorial argument at the sentencing phase will necessarily be colored by the nature of the crime, the manner of its proof, the defendant’s character and other relevant concerns indicating the degree to which the circumstances of the crime and defendant are egregious or mitigated. See, e.g., Strickland v. Washington, — U.S. at -, 104 S.Ct. at 2069, 80 L.Ed.2d at 699 (1984) ("a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support"). The "reasonable probability” test automatically subsumes this factor.

28 . The Supreme Court’s use of the "reasonable probability” test in Strickland v. Washington, a death penalty case, makes clear that it is consistent with the need for high reliability in imposition of the penalty. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Justice Brennan's partial concurrence demonstrates that the application of the test in capital cases must be guided by that concern for reliability. — U.S. at-, 104 S.Ct. at 2073-75, 80 L.Ed.2d at 704-06.

29 . For example, an attorney should not hint that he has additional evidence which he has not produced. United States v. Garza, 608 F.2d 659 (5th Cir.1979). Nor should he argue facts not in evidence before the jury, Conner v. State, 251 Ga. 113, 303 S.E.2d 266, 276, cert. denied, - U.S. -, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983), unless the facts are within the common public knowledge. Tenorio v. United States, 390 F.2d 96, 99 (9th Cir.), cert. denied, 393 U.S. 874, 89 S.Ct. 169, 21 L.Ed.2d 145 (1968); ABA Standards for Criminal Justice 3-5.9 (2d ed. 1982) (“It is unprofessional conduct for the prosecutor intentionally to refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice"). Nor should he affirmatively state his personal opinions or beliefs to the jury. United States v. Morris, 568 F.2d 396 (5th Cir.1978); ABA Code of Professional Responsibility, DR7-106(c). Such statements inject irrelevant and possibly prejudicial matter into a jury’s deliberations and thereby impinge on the jury’s duty to determine the facts relevant to the guilt of a defendant.

30 . The panel did consider alleged prosecutorial misconduct during argument in the guilt phase of Brooks’ trial and found that it did not rise to the level of fundamental unfairness. Brooks v. Francis, 716 F.2d 780, 787-88 (11th Cir.1983). We concur in the judgment and reasoning of the panel in that regard, and further find that any improprieties at the guilt phase did not affect the jury in its sentencing determination.

31 . We find it helpful in this case to analyze the entire argument, note improper comments, and then undertake the inquiry required by the "reasonable probability” test. A court need not determine whether specific arguments are proper or improper if, taken as a whole, they would not require relief. See Strickland v. Washington, -U.S. at-, 104 S.Ct. at 2069, 80 L.Ed.2d at 699 ("a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies”).

32 . Compare Strickland v. Washington, — U.S. -,-, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 693 (1984) (“A capital sentencing proceeding like the one involved in this case, however, is sufficiently like a trial in its adversarial format and the existence of standards for decision ... that counsel’s role in the proceeding is comparable to counsel’s role at trial — to insure that the adversarial testing process works to produce a just result under the standards governing decision.”) (O’Connor, J., writing for majority), with California v. Ramos, 463 U.S. 992,-, 103 S.Ct. 3446, 3456, 77 L.Ed.2d 1171, 1185 (1983) ("More to the point, however, is the fundamental difference between the nature of the guilt-innocence determination at issue in Beck and the nature of the life-death choice at the penalty phase.... In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar 'central issue’ from which the jury’s attention may be diverted”) (O’Connor, J., writing for majority): compare also Bullington v. Missouri, 451 U.S. 430, 444, 101 S.Ct. 1852, 1861, 68 L.Ed.2d 270 (1981) (capital sentencing like a trial for purposes of Double Jeopardy Clause) (Blackmun, J., writing for majority) with Spaziano v. Florida, — U.S.-, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (capital sentencing not like a trial for purposes of Sixth Amendment right to jury) (Blackmun, J., writing for majority). See generally, Weisberg, Deregulating Death, 1983 Sup.Ct.Rev. 305, 328-60.

33 . It also affects what may be legitimately argued by defense counsel. Defense argument on topics irrelevant to the task of the sentencing jury can be objected to and validly excluded. See, e.g., Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982) (excluding defense argument about physical effect of electrocution because of irrelevance and failure to introduce evidence), cert. denied, 459 U.S. 1188, 103 S.Ct. 837, 74 L.Ed.2d 1030 (1983); see also Lockett v. Ohio, 438 U.S. 586, 604 n. 12, 98 S.Ct. 2954, 2964 n. 12, 57 L.Ed.2d 973 (1981).

34 . In concluding that emotion is both appropriate and inevitable, we need not address whether some case might present an argument which, although directed to a relevant sentencing concern, was delivered in such an excessive and intolerable manner that it effectively diverted the jury’s attention from its proper function. This is not such a case.

35 . In Georgia, the sentencing jury in the death phase is not required to limit its consideration to statutory aggravating circumstances. Once the jury has found at least one statutory aggravating circumstance, "the case enters the area of the factfinder's discretion, in which all the facts and circumstances" are taken into consideration. Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1, 4 (1982) (emphasis added). The Supreme Court in Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), recognized this fact and nonetheless approved the Georgia scheme. Thus, state law does not limit a Georgia prosecutor to arguments relating strictly to the statutory aggravating circumstances. Cf. Barclay v. Florida, 463 U.S. 939,-, 103 S.Ct. 3418, 3426, 77 L.Ed.2d 1134, 1147 (1983) (“Unlike the Georgia statute, however, Florida law requires the sentencer to balance statutory aggravating circumstances against all mitigating circumstances and does not permit non-statutory aggravating circumstances to enter into this weighing process”).

36 . In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Court found a violation of due process in a Florida trial judge’s use of confidential pre-sentencing reports as a basis for imposing the death penalty. Absent an opportunity to explain or deny information contained therein, a capital defendant would be subjected to punishment based upon possibly unreliable information insulated from the adversarial format of the sentencing hearing. Georgia requires advance notice to a defendant of evidence in aggravation of punishment, whether or not that evidence is focused on a statutory aggravating circumstance. Ga.Code Ann. § 17-10-2(a) (1982); Fair v. State, 245 Ga. 868, 268 S.E.2d 316, 319, cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980). This requirement promotes reliability by allowing the defendant time to prepare a defense to the prosecution’s evidence.

37 . For example, death could not be urged because of irrelevant or constitutionally impermisindividual factors such as race, religion, political belief, etc. Zant v. Stephens, 462 U.S. at 885, 103 S.Ct. at 2747, 77 L.Ed.2d at 255.

38 . The future dangerousness of a particular defendant, and the prospects for his rehabilitation, are relevant to specific deterrence (z'.e., incapacitation of the defendant), which is a legitimate consideration in a capital sentencing proceeding. Spaziano v. Florida, &emdash; U.S.-,-, 104 S.Ct. 3154, 3163, 82 L.Ed.2d 340, 353 (1984).

39 . It has been argued that general deterrence is not appropriately part of a capital sentencing 'jury’s decision on whether or not to impose death. Gillers, Deciding Who Dies, 129 U.Pa.L. Rev. 1, 46-56 (1980). The two related points to this argument are (1) that a sentence’s deterrent effect is only proper as a legislative decision as to whether the penalty should be enacted and thus should not be reconsidered by a jury; and (2) that the notion of general deterrence is so inherently unprovable that its consideration injects an unreliable element into capital sentencing.

While Gregg v. Georgia does indicate that deterrence is an appropriate legislative concern, 428 U.S. at 184-87, 96 S.Ct. at 2930-31, there is no indication in cases since Gregg that it is improper for the jury or sentencing judge to consider it. Cases requiring that capital sentencing be "individualized,” Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), do not foreclose more general considerations. To the contrary, cases suggest that deterrence is an appropriate sentencing concern. See Collins v. Francis, 728 F.2d at 1339-40 (relying upon United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978)). Gregg recognized that deterrence may be a meaningful concept for some crimes and not for others. 428 U.S. at 185, 96 S.Ct. at 2930. A defendant should be entitled to have the jury consider an argument that imposing the death penalty in his case would not have a deterrent effect.

Concerning the inability to prove deterrence, the fact that the Supreme Court in Gregg accepted Georgia’s legislative judgment that deterrence is meaningful demonstrates that the absence of conclusive support is not fatal. Once an aggravating circumstance has been found that renders a defendant death-eligible, the justification is an appropriate subject for the jury’s decision on the correct penalty.

40 . Whisnant's sentencing argument does not present this problem. The jury had already found facts at the guilt phase which were aggravating circumstances under Georgia law. See supra note 20.

41 . For example, it would be improper for a prosecutor to argue about individual circumstances of the defendant contained in a presentence report which the defendant had not been able to examine. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). And, it would obviously be improper for the prosecutor to make argument on valid subjects using facts not introduced in evidence before the jury. United States v. Warren, 550 F.2d 219, 229 (5th Cir.1977) (conviction reversed because government argued important fact not in evidence), cert. denied, 434 U.S. 1016, 98 S.Ct. 735, 54 L.Ed.2d 762 (1978); Conner v. State, 251 Ga. 113, 303 S.E.2d at 276 (1983) (wrong for prosecutor to "go outside the facts appearing in the case and lug in extraneous matters”).

42 . See, also United States v. Herrera, 531 F.2d 788, 790 (5th Cir.1976) (attorney may not give personal opinion about credibility of witnesses); United States v. Lamerson, 457 F.2d 371, 372 (5th Cir.1972) (prosecutor cannot imply that he would not have brought case if defendant were not guilty).

43 . Similarly, because Gregg recognizes both the controversy over deterrence generally and the rationale's inapplicability to particular murders, defense counsel properly can question the rationale in argument before the sentencing jury, In this case, Brooks’ counsel did argue that the death penalty did not deter and cited studies demonstrating the lack of a deterrent effect.

44 . The interpretation suggested by Brooks, in addition to being speculative, is completely at odds with the thrust of Whisnant’s argument which emphasized the seriousness of the jury’s task in making its life or death decision. The jury’s responsibility was also made crystal clear by the defense counsel’s argument, and, more importantly, by the trial court’s instructions, which informed the jury that their decision to recommend mercy would result in life imprisonment for Brooks, but that if they recommended the death penalty, the court was required by law to sentence the defendant to death.

45 . The defense argued, inter alia, the Biblical commandment: "Thou shalt not kill.”

46 . Brooks suggests that, future dangerousness aside, it is wrong to make an argument based on a speculative possibility of prison escape. In California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the Supreme Court held that it was not improper to instruct the jury that the Governor could commute a sentence of life without parole given to a defendant in a capital case. The Court found that mention of commutation did not turn the sentencing into a speculative inquiry on whether the Governor would eventually release the defendant but instead invited "the jury to assess whether the defendant is someone whose probable future behavior makes it undesirable that he be permitted to return to society." 463 U.S. at -, 103 S.Ct. at 3454, 77 L.Ed.2d at 1182. The prison escape argument likewise did not turn the sentencing into a decision on prison security, but was part of an argument pointing out the potential for future danger. See Redd v. State, 242 Ga. 876, 252 S.E.2d 383 (not improper to argue for death sentence by claiming that defendant will have "another chance" to do harm unless executed), cert. denied, 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304 (1979). Although there was no record evidence concerning escape, the fact that escape is a possibility was within the common public knowledge.

47 . Although Whisnant’s brief expressions of personal belief in the death penalty are improper for the same reason, i.e., concern that statements by the prosecutor will carry additional weight with the jury, we believe that their effect was insignificant. The claim "I believe in the death penalty” added little to Whisnant’s vociferous argument for capital punishment in the instant case. Furthermore, the fact that the Georgia legislature has enacted a capital sentencing statute speaks loudly and properly of the punishment’s validity. Whisnant’s brief statements merely echoed that accepted legislative judgment. While irrelevant, they were not prejudicial.

48 . Our certainty on this point dispels any concern about whether the jury understood Whisnant's discussion of the grand jury, prosecutor, police department and judge as an attempt to dilute its sense of responsibility. See Part IV(6).

49 . In Part IV(7) we declined to accept Brooks’ interpretation of ambiguous remarks, which Brooks argued were an improper attempt to provoke a negative reaction to his exercise of his right to trial and other procedural safeguards. Even if the jury were aware of the improper interpretation, the brevity of the remarks, as well as the context, satisfies us that there was no improper influence on the jury.

50 . In this case, there was overwhelming evidence that Brooks kidnapped, robbed, raped, and killed, and these include all of the elements of the several crimes except for intent to kill and malice. There was very strong evidence of intent and malice, even though we have concluded in Section One of this opinion that we cannot conclude that there was overwhelming evidence of intent and malice. The prosecutor’s errors are not harmless because of such evidence; even undisputed guilt is never sufficient, by itself, to justify death. However, an outcome based on weak evidence might be more likely to have been affected by errors than one based on a very strong case. Strickland v. Washington, -U.S. at-, 104 S.Ct. at 2069, 80 L.Ed.2d at 699; see discussion at Part II.C., supra, n. 27.

51 . Our decision does not condone the improper arguments identified in this case; rather, we conclude only that they do not render the proceeding fundamentally unfair. A court with supervisory powers might well reverse convictions if such arguments persist, or pursue other sanctions to eliminate such improper conduct, especially in the sentencing phase of capital cases.