Full opinion text
ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS HAMILTON, District Judge. The State of Indiana has sentenced petitioner Jim Lowery to death for two murders. Lowery has petitioned for a writ of habeas corpus setting aside .the murder convictions and death sentences based on alleged violations of his federal constitutional rights. After considering the parties’ submissions and the extensive state court record, the court has concluded that Lowery’s convictions and death sentences Idid not result from any federal constitutional violation. Accordingly, the court denies Lowery’s petition for a writ of habeas corpus. Background The State of Indiana charged Lowery in the Tippecanoe Superior Court on October 16, 1979, with two counts of murder and one count of attempted murder. The murder victims were Mark and Gertrude Thompson, both in their eighties. The victim on the attempted murder charge was Janet Brown, the Thompsons’ housekeeper and caretaker. The State of Indiana filed an information alleging two counts of a capital offense and requesting a sentence of death on each count. Following a change of venue, Lowery went to trial in the Boone Superior Court. A jury found him guilty. The court sentenced him to death on the two murder charges and to 50 years in prison for attempted murder. The Supreme Court of Indiana reversed the convictions on direct appeal in Lowery v. State, 434 N.E.2d 868 (Ind.1982) (Lowery I) (in the absence of waiver by defendant, trial court erred by failing to sequester jury during capital trial). On remand, after another change of venue to the Hendricks Circuit Court, Lowery was tried a second time. The jury again convicted Lowery of two murders and attempted murder. On January 7, 1983, the Hendricks Circuit Court sentenced Lowery to death on both murders and to a term of 50 years on the attempted murder conviction. The Supreme Court of Indiana affirmed the convictions and sentences on direct appeal in Lowery v. State, 478 N.E.2d 1214 (Ind.1985) (Lowery II), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). Lowery later sought post-conviction relief. The state trial court denied his petition. On appeal, the Supreme Court of Indiana affirmed the denial of relief as to the murder convictions and death. .sentences but set aside the conviction for attempted murder based on an erroneous jury instruction on that charge. Lowery v. State, 640 N.E.2d 1031 (Ind.1994) (Lowery III), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 183 L.Ed.2d 432 (1995). Lowery therefore is currently under two sentences of death for the two murders of which he was convicted in the Hendricks Circuit Court and which were the subject of his direct appeal in Loxuery II. The victims of the murders, Mark and Gertrude Thompson, lived in rural Tippecanoe County, Indiana. Both were elderly and in declining health, and they needed help in caring for their home and for themselves. In the months before the murders, petitioner Lowery and his wife Barbara had worked as caretakers for the Thomp-sons and had lived with their children in a trailer that the Thompsons had provided on their property. A few weeks before the murders, the Thompsons had become dissatisfied with the Lowerys and had ordered them to leave the property. The murders took place on September. 30, 1979, at the Thompsons’ home. That evening, Janet Brown, the housekeeper and caretaker, was reading in the front room of the trailer that the Thompsons provided their caretaker next to their garage. Lowery kicked open the screen door, pointed a gun at her, and told her not to move. Brown testified that she recognized Lowery immediately as a man she had met about a week earlier at the local post office. 5 R 1017-18, 1037. Lowery held a pistol against Brown’s neck and forced her to take him to the Thomp-sons’ house. Outside the trailer another man joined Lowery. The accomplice was Jim Bennett, who was also charged with the murders and who testified against Lowery at his first trial. Lowery and Brown went into the kitchen where Mark Thompson was standing. Lowery said: “This is a hold up.” Mr. Thompson replied: “You don’t want to do this now, Jim,” calling Lowery by name. 5 R 1024. Brown saw Lowery respond by shooting Mark Thompson in the stomach. Lowery then held the gun to Brown’s head and forced her toward the den where Gertrude- Thompson was watching television. Lowery ordered Gertrude Thompson to get up and move. As she was walking down the hall, he struck her in the head with the gun. She staggered and blood spurted from her head. Lowery forced both Brown and Mrs. Thompson into the kitchen. He then shot Mrs. Thompson in the head and killed her. Lowery also shot Brown in the head, but Brown was holding her hand over her head and her wound was not fatal. At some point, Brown heard Bennett say the burglar alarm was sounding: See 5 R 1029. Mark Thompson had apparently managed to set it off. Brown then saw Lowery and Bennett get excited, and she observed Lowery go back toward Mr. Thompson. Brown heard one or two more shots. 5 R 1029-30. Later that night, after she realized that Lowery and Bennett had gone, Brown somehow managed to call for help. 5 R 1033-34. One of the shots Brown heard turned out to be a shot to Mr. Thompson’s head. Mr. Thompson was still alive when police responded to Brown’s call, but he died of his wounds seven days later. By the time police responded, Lowery and Bennett had fled by way of back roads. After the shootings, Lowery and Bennett returned to the old school bus where Lowery and his family were living in a campground near Crawfordsville, Indiana. They told Barbara Lowery about the shootings. See 7 R 1515. Lowery was arrested two days later in Crawfordsville, Indiana. After liis arrest, he made incriminating statements to several officers. The trial court suppressed some but not all of those statements because of Miranda violations. See generally Lowery II, 478 N.E.2d at 1218-19 (summarizing facts of the case). The case against Lowery was based on three principal lines of directly incriminating evidence. First, Brown identified Lowery as the person with the gun who shot her and the Thompsons. Brown identified Lowery from a photo array while she was in the hospital recovering from her wounds. She also identified Lowery in court during the trial. Second, under a plea agreement, Jim Bennett also testified about the killings and testified that Lowery was the one who had shot the Thomp-sons and Brown. Third, several police officers testified about the unsuppressed statements that Lowery made shortly after his arrest in which he admitted involvement in the murders. The prosecution also offered some additional corroborative evidence. This included testimony from Barbara Lowery (Lowery’s wife at the time of the murders) that Lowery and Bennett had left the camp with a handgun and a shotgun and said they were going out on a “caper,” 7 R 1511-12, then returned much later that night, very upset, shaking. In Lowery’s presence, and without contradiction, Bennett told Lowery’s wife “oh god, it went bad,” and “oh god, he shot them right in the * * * head.” 7 R 1513-15. The corroborative evidence also included a detailed account of the murders that Lowery gave to a cell-mate in the Tippecanoe County Jail. See 7 R 1721-39. In his petition, Lowery challenges each of the three principal lines of direct evidence against him. Lowery’s Claims Lowery asserts that his convictions and sentences resulted from violations of his federal constitutional rights. Some of his claims apply to the convictions, some to both the convictions and sentences, and some only to the sentences. Lowery has made no claim of “actual innocence” here. See 9 R 2196-97 (during penalty phase of trial, Lowery admitted shooting the Thompsons). Lowery claims his rights were violated.as follows: 1.The trial court violated his Sixth Amendment right to confront the witnesses against him at the second trial when it allowed the prosecution to read as evidence Jim Bennett’s testimony from the first trial. 2. The trial court violated his Fifth and Sixth Amendment rights by allowing law enforcement officers to testify about incriminating statements he made while in custody. 3. He was denied due process of law and a reliable sentencing determination by the prosecutor’s misstatements of the law and evidence, and by arguments that inflamed the jury and urged the jury to render verdicts for improper reasons at both phases of the trial. 4. Under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), he was denied due process of law and a reliable sentencing determination because the jury was told that its verdict at the penalty phase of the trial was only a recommendation to the judge, who makes the actual sentencing decision under Indiana law. 5. His constitutional rights were violated when the prosecutor requested the death penalty without intervention of a grand jury or other neutral decision-maker, at least in light of evidence that the prosecutor had been acquainted with the victims and that the victims’ son was the circuit judge in the prosecutor’s (and the victims’) home county. 6. His constitutional rights were violated at the penalty phase when the trial judge failed to instruct the jury that Lowery was presumed innocent of the aggravating factor of committing attempted burglary and failed to instruct the jury on the elements of the crime of attempted burglary. 7. His constitutional rights were violated at the penalty phase by the trial judge’s errors in considering aggravating factors and failing to consider mitigating evidence, and on appeal when the Supreme Court of Indiana reviewed the sentences. 8. He was denied his right to effective assistance of trial counsel in a number of respects during both the guilt phase and the penalty phase of the trial. 9. He was denied his right to effective assistance of appellate counsel because appellate counsel did not include in the appellate record the verbatim transcript of the jury voir dire. Although Lowery invokes multiple constitutional provisions on each claim, the court will confine its discussion to the claims that were presented to the Indiana courts. Scope of Review Lowery seeks relief in this action pursuant to 28 U.S.C. § 2254(a). A federal court may issue a writ of habeas corpus on behalf of a state prisoner only if the petitioner shows that he is in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Because Lowery filed his petition before the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), the court applies preAEDPA standards to his petition. Under those standards, this court must make independent and plenary judgments about the legal issues presented, rather than merely asking whether the state courts applied federal constitutional law unreasonably. See Abrams v. Barnett, 121 F.3d 1036, 1037-38 (7th Cir.1997); Lindh v. Murphy, 96 F.3d 856, 861 (7th Cir.1996) (en banc) (discussing legal standards both prior to and after enactment of the AED-PA). In addition, Lowery may draw on the entire body of federal case law, rather than being restricted only to decisions of the Supreme Court. Abrams v. Barnett, 121 F.3d at 1037-38. Discussion I. Admission of Bennett’s Prior Testimony At Lowery’s first trial, Jim Bennett testified for the prosecution pursuant to a plea agreement that provided for a 40-year sentence for Bennett’s role in the crimes. Before the retrial, Bennett told the prosecution that he would,not testify against Lowery at the second trial unless he got a better deal. The prosecution refused to sweeten the deal. After some maneuvering described below, the prosecution called Bennett as a witness at the retrial. .Bennett refused to testify. The trial judge found Bennett in contempt, but he still refused to testify. At that point, over Lowery’s objection, the court allowed the prosecution to read to the jury Bennett’s testimony from the first trial. See 8 R 1764. Lowery contends the use of Bennett’s prior testimony denied him the right to confront and cross-examine a critical witness against him in violation of the Sixth Amendment. Lowery contends that Bennett was not “unaváilable” at the second trial because the prosecution could have and should have made more vigorous efforts to pressure Bennett to testify. The right of an accused individual to test the accuracy of adverse testimony is an essential safeguard in the American adversarial system of criminal justice. See, e.g., Ohio v. Roberts, 448 U.S. 56, 63-65 & n. 6, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Nevertheless, the Sixth Amendment confrontation clause “permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant’s inability to confront the declarant at trial.” Maryland v. Craig, 497 U.S. 836, 847-48, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (citing cases). Where prior testimony of a witness is admitted at a later trial because the witness is unavailable to testify; the confrontation clause requires that the defendant must have had an opportunity to cross-examine the witness at the earlier proceeding sufficient to endow the testimony as a whole with substantial “indicia of reliability” so that “the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.” Mancusi v. Stubbs, 408 U.S. 204, 216, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (internal quotation marks omitted). The problem of unavailable witnesses arises most often when a witness is physically unavailable for trial by reason of death, illness, or distance. But a witness may also be “unavailable” for these purposes where the witness simply refuses to testify despite a court order to do so, backed up with sanctions for contempt of court. See, e.g., Crespin v. New Mexico, 144 F.3d 641, 646 (10th Cir.1998) (parties agreed co-defendant was unavailable to testify when she refused to testify at trial despite being held in contempt). Similarly, under the Federal Rules of Evidence, a witness is “unavailable” so as to permit use of former testimony if the witness “persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so.” Fed.R.Evid. 804(a)(2). Bennett’s refusal to testify at Lowery’s second trial was neither anticipated nor procured by the State. Bennett’s testimony at Lowery’s first trial was fully subject to cross-examination by Lowery’s counsel. Lowery does not contend that the cross-examination was not full and meaningful. The issue, therefore, is whether Bennett was truly “unavailable” for the second trial. The Supreme Court has repeatedly said that, before prior testimony can be used on the theory that the witness is unavailable, the prosecution must demonstrate that it has made a good faith effort to obtain the witness’s testimony in person before the trier of fact. Ohio v. Roberts, 448 U.S. at 74, 100 S.Ct. 2531; Mancusi v. Stubbs, 408 U.S. at 210-11, 92 S.Ct. 2308; California v. Green, 399 U.S. 149, 161-62, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (fact that witness was in federal custody in another state did not justify use of prior testimony where prosecution made no effort to obtain his presence for trial). The problems with Bennett arose after he had been transported from a state prison to a county jail to be available for testimony at Lowery’s second trial in Hendricks County. On November 28, 1982, he informed a prosecutor and sheriffs deputy that he thought he had complied with his plea agreement by testifying at Lowery’s first trial and that he would testify at the second trial only if his sentence were reduced further to a maximum of ten years. 5 PCR 1093-95. Later that night, in a follow-up interview, Bennett told law enforcement officers that he intended to testify that Lowery had not been present when the murders were committed. A few days later, on December 3,. 1982, after the jury had been sent home for the day, the court held a hearing in which Bennett was called to the stand., A state public defender appeared as counsel for Bennett at the hearing. See 5 R 1156. Bennett initially refused to be sworn, but he later complied. 5 R 1157, 1159. Bennett stated his intention not to testify even if ordered to do so by the court. 5 R 1161-67. He said that he understood he had no Fifth Amendment right not to testify and that his lawyer had explained to him the possible consequences of not testifying. 5 R 1164, 1169-71. He also made it clear that the prosecutor was not trying to keep Mm from testifying. 5 R 1162. When the judge gave Bennett a chance to explain Mmself, he told the judge he felt he did not have to testify because he had already testified once. 5 R 1185. The judge then threatened to hold Bennett in contempt and to order his plea bargain revoked. 5 R at 1186. After some fits and starts in which Bennett initially answered a few questions, he again refused and the judge held him in contempt of court. 5 R 1191. The judge also instructed the prosecution to consider revoking Bennett’s plea bargain and recommended that the prosecution proceed to seek the death penalty against Bennett. 6 R 1191-92. The judge also recommended that the Department of Correction give Bennett no good-time credits so long as he remained in contempt. The lawyer representing Bennett, however, objected that the Hendricks Circuit Court did not have jurisdiction to take any action against Bennett other than to hold him in contempt of court. 5 R 1194-95. The court and all parties agreed on that point. The judge then rescinded the orders or recommendations concerning Bennett’s plea bargain and Ms good-time credits. 5 R 1195-97. Three days later, Bennett appeared with counsel, again outside the presence of the jury. 7 R 1590. Bennett testified that in the mterirn he had changed his mind and had decided to testify, had then changed his mind again, and would still refuse to testify. 7 R 1591. Bennett persisted and again was held in contempt. 7 R 1594. The judge told Bennett that he was “making a mockery of justice” and that the judge would do everything he possibly could to see that the original charges were again filed against Mm. Id. Later that afternoon, the prosecution called Bennett as a witness, tMs time in the presence of the jury. Bennett again refused to testify, and the court again held him in contempt. 7 R 1654-59. The next day the court determined that Bennett was unavailable as a witness and permitted the prosecution to read to the jury the transcript of Bennett’s testimony at the first trial. During his post-conviction proceeding, Lowery expanded the record to show that the prosecution had not made any additional threats ' of prosecution or punishment against Bennett beyond the punishment for contempt of court; that Bennett had agreed to testify when he thought he would be risking additional prison time and possibly the death penalty if he refused and if his plea bargain had been revoked; but that after he learned from his attorney that the penalty for contempt of court was three months in jail and a $500 fine, he again refused to testify. The Supreme Court of Indiana said in its opinion that “Bennett had been amenable to threats of further prosecution, but no such threats had been made by the State.” Lowery III, 640 N.E.2d at 1037. Lowery argues here that, because additional threats would have persuaded Bennett to testify at the second trial, the prosecution’s failure to make those threats amounted to a failure to make a good faith effort to obtain his testimony. Lowery bases this argument on two pillars: first, that the trial court proceedings showed the prosecution that further threats would persuade Bennett to testify, see Pet. Reply Br. at 11-12; and second, that state law required the prosecutor to pursue new criminal charges against Bennett, id. at 12-14, citing Ind.Code § 33-14-1-8. Lowery contends that the prosecutor could have sought “a judicial interpretation” of Bennett’s plea agreement in Howard County, could have charged Bennett with obstruction of justice under Ind.Code § 35-44-3-4(a)(2)(A), could have sought to have him punished as a habitual criminal, and could have sought revocation of Bennett’s plea agreement. If the plea agreement had been revoked, Bennett could have faced a maximum sentence of either death or 170 years imprisonment on the origmal charges of murder and attempted murder. Lowery’s argument based on the good faith requirement of Ohio v. Roberts seems to be that, if it is possible to identify any additional measures that would have been reasonable to take to obtain the witness’s testimony, then the failure to take those steps shows that the witness was not unavailable. See Pet. Reply Br. at 12. That clearly is not the approach adopted in Ohio v. Roberts. In that case the key prosecution witness was a girl who apparently- had run away from home after she testified at a preliminary hearing. Five subpoenas and four different trial dates produced nothing. The girl’s mother testified that she and her father did not know where the girl was and did not know how to get in touch with her even in an emergency. 448 U.S. at 59-60, 100 S.Ct. 2531. The state trial court held that the witness was unavailable and admitted her prior testimony. The Supreme Court of the United States held that the prosecution had shown the witness was unavailable. Id. at 75, 100 S.Ct. 2531. The Court recognized that the prosecutor might have taken other steps, including following up on a lead from a social worker in San Francisco, but held that more was not required as a matter of constitutional law: “One, in hindsight, may always think of other things. .Nevertheless, the great improbability that such efforts would .have resulted in locating the witness, and would have led to her production at trial, neutralizes any intimation that a concept of reasonableness required their execution.” Id. at 75-76, 100 S.Ct. 2531; but see id. at 79-80, 100 S.Ct. 2531 (Brennan, J., dissenting) (arguing that further efforts to locate witness might have been successful and should have been required before admitting testimony from the preliminary hearing). Similarly, in Mechler v. Procunier, 754 F.2d 1294 (5th Cir.1985), the only eyewitness to the murder testified at a preliminary hearing and then left the state. Applying Ohio v. Roberts and Barber v. Page, the Fifth Circuit held that the prosecution had shown adequate good-faith efforts to locate the witness by issuing three subpoenas in Texas (although the witness had said she was leaving the state) and by twice seeking assistance from Illinois authorities after the witness had telephoned the Texas prosecutor and told him she lived in Illinois. Illinois authorities were unable to locate and serve her with a subpoena. Texas authorities had also arranged to pay the witness’s travel expenses. 754 F.2d at 1297. It is easy to imagine that the Texas authorities could have taken additional steps to locate the witness, but the Fifth Circuit held that the unsuccessful efforts they made were reasonable and sufficient to allow use of the testimony from the preliminary hearing. In United States v. Allie, 978 F.2d 1401, 1406-08 (5th Cir.1992), the Fifth Circuit held that the government had made reasonable efforts to have alien witnesses return to the United States to testify at trial. Those efforts included giving the witnesses the option of remaining in the United States with work permits, telling the "witnesses they could be paid witness fees and travel costs; giving each witness a subpoena and a letter to facilitate reentry into the United States, calling the witnesses in Mexico, getting the witnesses’ repeated assurances that they would return, apprising the border inspectors of the witnesses’ expected arrival, and issuing checks to be given to the witnesses upon their reentry into the United States. Could more have been done to ensure that the witnesses would testify at trial? Almost certainly, but the record showed a reasonable and good faith effort to secure the witnesses’ presence at trial, so they were properly deemed unavailable at trial. See also United States v. Kehm, 799 F.2d 354, 360-61 (7th Cir.1986) (witness in Bahamas was unavailable where United States had no extradition treaty and witness was unwilling to testify voluntarily without transactional immunity; Ohio v. Roberts did not require prosecution to take futile steps to secure attendance); Buelow v. Dickey, 622 F.Supp. 761, 763-64 (E.D.Wis.1985) (witness was unavailable where she refused to testify despite being held in contempt), rev’d on other grounds, 847 F.2d 420 (7th Cir.1988). By contrast, Lowery has not identified any cases in which prosecution efforts comparable to or greater than those made here were deemed insufficient to show a witness was unavailable, nor has he identified cases holding that the ability to identify additional steps the prosecution might have taken to secure the testimony is sufficient to undermine the prosecution’s assertion that it has made a reasonable, good faith effort. Cf. Sherley v. Seabold, 929 F.2d 272, 274 (6th Cir.1991) (state failed to show reasonable efforts to secure testimony of elderly witness in nursing home where state simply deferred to wishes of family and treating physician that she not be asked to testify, and state also failed to try to take her deposition); United States v. Quinn, 901 F.2d 522, 528 (6th Cir.1990) (government failed to show reasonable efforts to locate witness; prosecution had waited until less than five days before trial to subpoena its “unavailable” witness, and then made only negligible efforts to locate her). The issue under the unavailability prong of the Ohio v. Roberts test is whether the prosecution made a reasonable effort in good faith, not whether it made all reasonable efforts. Lowery’s argument on this point essentially adopts the position of the dissenting justices in Ohio v. Roberts, see 448 U.S. at 79-80, 100 S.Ct. 2531, but this court must apply the test adopted by the Court majority: The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ intervening death), “good faith” demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. “The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” California v. Green, 399 U.S. at 189, n. 22, 90 S.Ct. 1930 (concurring opinion, citing Barber v. Page, supra ). The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. 448 U.S. at 74, 100 S.Ct. 2531 (emphasis in original). In this case, the prosecution brought Bennett to trial to testify. After Bennett balked in an attempt to extort a better deal from the State, the prosecution had him held in the local jail, repeatedly tried to persuade him to testify, and repeatedly called him before the trial judge. The judge repeatedly held him in contempt for refusing orders to answer questions. Those efforts were unsuccessful. The fact that other steps the prosecution did not take might also have been reasonable does not show either that it failed to make a reasonable, good faith effort to secure Bennett’s testimony, or that Lowery’s Sixth Amendment rights were violated by use of Bennett’s testimony from Lowery’s first trial. Lowery also argues that the prosecutor failed to make a reasonable, good faith effort to obtain Bennett’s testimony because the prosecutor failed to fulfill a mandatory duty to prosecute for a crime that came to his attention. To support this argument, Lowery relies on Ind.Code § 33-14-1-3, which describes a prosecutor’s duties upon receiving information about the commission of a crime. There is no mandatory duty under state law to prosecute a crime. Such decisions are left to the judgment and discretion of the prosecuting attorney, without interference by the courts. See Johnson v. State, 675 N.E.2d 678, 683 (Ind.1996); Lamotte v. State, 495 N.E.2d 729, 733 (Ind.1986). The Indiana statute adds nothing to Lowery’s argument on this claim. Further, based on a review of the entire state court record, the court finds that even if the use of Bennett’s prior testimony had violated Lowery’s Sixth Amendment rights, he would not be entitled to relief on that basis because any error would have been harmless. The goal of the Sixth Amendment’s confrontation clause is to promote discovery of the truth. Lowery himself has admitted the most salient facts that Bennett stated in his testimony: that Lowery intended to rob the Thompsons and that Lowery fired the shots that killed them. See 9 R 2196-2201. Another trial to give Lowery another opportunity to try to persuade a jury to entertain a reasonable doubt about facts he has admitted and that are no longer subject to reasonable dispute would not be warranted. II. Admission of Inculpatory Statements Made While in Custody After Lowery was arrested, he was given his Miranda warnings. Lowery told the police that he wanted to remain silent and did not want to waive his Miranda rights. Nevertheless, several officers engaged Lowery in conversation and asked questions related to the murders of the Thompsons. Lowery made incriminating statements in response. The trial court suppressed Lowery’s statements to Craw-fordsville Police Chief Goode and Officers Chase and Worthington while he was in custody in the Montgomery County Jail, concluding they were the results of unlawful interrogation. See 3 R 609; see also OR 271. But the trial court refused to suppress other incriminating statements that Lowery made to Crawfordsville Police Officer Michael Bridge, Indiana State Police Sergeant George Ross, and Tippecanoe County Sheriff’s Department Lieutenant Chase, finding that those statements did not involve any interrogation by the police. See Lowery II, 478 N.E.2d at 1221-22 (summarizing the statements). Officer Bridge testified that Lowery said “he did it,” and that he “did it because he uh, hated Mr. Thompson and uh, that Mr. Thompson had uh, in his words, ripped off, people with his law practice.... ” 5 R 1135. Bridge testified that Lowery volunteered these comments when the two were alone, and not in response to any questions by Bridge. Id. Lowery also told Bridge that Bridge “would be a hero for catching him and that he [Lowery] would be famous in the papers like Roger Drollinger.” 5 R 1136. Lowery also told Bridge that he was upset with Mr. Thompson because he had kicked Lowery and his family out, and that “he knew he was in trouble when he had heard on the radio that uh, the housekeeper had survived.” Id. Sergeant Ross testified that Lowery initiated a conversation with him when Ross was in the Tippecanoe County Jail on unrelated business on October 9, 1979. The testimony continued: Q He-he initiated it, he asked you if you could stay? A Yes, he did. Q Ok, go ahead. A Which I did, uh, and told him I couldn’t talk anything about the case and he said it wouldn’t matter anyway even if we did because his lawyer wasn’t present and it couldn’t be used. Q Ok, then did he say something to you? A Yes, he did. Q What did he say to you? A He uh, he said he’d heard that on the street that uh, the word on the street was that uh, he was as big or bigger than Charles Manson in the area. Q Did he say anything else to you? A Yes. He did. Uh, he told how he’d uh, shot Mark Thompson in the side however, he said he did not shoot the women. And uh, talked about being uh, in an institution, a mental institution when he was sixteen years old. Q Ok, do you recall anything else he said to you? A He said uh, just about, he had been through Beatty Memorial and Lo-gansport Mental Institutions and that his attorneys were attempting to get those records to uh, show him to be insane. 7 R 1638-39. Lieutenant Chase of the Tippecanoe County Sheriffs Department sat in the back seat of a car with Lowery when he was transported from Crawfordsville to Lafayette on October 2,1979. Chase testified that Lowery volunteered some information to him. Chase testified that Lowery said “his partner had brought the guns to the Thompson residence and that he had fired one shot,” and that “a siren had scared them off, his partner had brought the guns and had taken them back with him,” and that “he was not concerned about telling us who his partner was uh, because he didn’t care if someone else got shot, not even if it was a policeman.” 8 R 1915. Lowery also told Chase “that he thought he would probably get the electric chair” but was hoping to get “natural life instead.” 8 R 1915-16. The trial court admitted the evidence of those incriminating statements to Bridge, Ross, and Chase after concluding that they did not result from custodial interrogation. Lowery contends that all the statements should have been suppressed because they were merely a continuation of the improper interrogation that had already occurred. Chase had been part of the earlier improper interrogation at the jail. See 8 R 1913-14; OR 218-20 (Tippecanoe County Lieutenant Worthington testified that some things Lowery said in the car were things he had discussed with Chief Goode, Chase, and Worthington at the police station, and Chase had asked most of the questions). The Sixth Amendment, as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), generally prohibits the use of evidence obtained in custodial interrogation after the suspect has requested the assistance of counsel. See also McGowan v. Miller, 109 F.3d 1168, 1175 (7th Cir.1997). Relying on language in Rhode Island v. Innis, Lowery argues that use of his statements to Bridge, Ross, and Chase violated his rights because the conversations were the “functional equivalent” of interrogation. The Supreme Court said in Innis: We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. 446 U.S. at 300-01, 100 S.Ct. 1682 (footnotes omitted); see also Killebrew v. Endicott, 992 F.2d 660, 663 (7th Cir.1993). Lowery was in custody when he made all the relevant statements. The only disputed issue is whether his incriminating responses were responses to “interrogation” or whether they were instead statements that he volunteered. The police improperly interrogated Lowery despite his statement that he wished to remain silent. Nevertheless, the fact that interrogation has begun does not invariably mean that all further communication between an arrestee and police was the product of improper interrogation. Thus, statements that are volunteered by an individual while in custody are not subject to exclusion from evidence under Miranda. See, e.g., United States v. Edwards, 885 F.2d 377, 385 (7th Cir.1989). Indeed, in Miranda itself, the court stated very clearly that “[v]olun-teered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” [384 U.S.] at 478, 86 S.Ct. 1602; see also Innis, 446 U.S. at 300, 100 S.Ct. 1682. McGowan v. Miller, 109 F.3d at 1175. The line between continued interrogation and a conversation in which the arres-tee volunteers incriminating statements may be a fine one in some cases, as Rhode Island v. Innis shows. In that case the defendant had been riding in a police car with three officers. The police suspected the defendant had been involved in crimes using a sawed-off shotgun that had not been located. Two of the officers began talking about the risk that the missing shotgun might pose to handicapped children at a nearby school. The defendant responded by telling the officers to turn the car back so that he could show them where the shotgun was hidden. 446 U.S. at 294-95, 100 S.Ct. 1682. The Supreme Court held that the defendant had not been subjected to interrogation, so that his incriminating admissions and disclosures could be used against him. Id. at 302, 100 S.Ct. 1682. The state courts found here that Lowery’s incriminating statements were not made in response to interrogation. Those findings are presumed correct unless they are without support in the record. E.g., McGowan, 109 F.3d at 1175 (applying pre-AEDPA standard and upholding admission of suspect’s statements that state courts had determined to have been volunteered to police officer while riding in police car). Lowery has not shown that the state courts’ view of the situation was factually erroneous or was based on a misunderstanding of the applicable constitutional standard. The treatment of Lowery’s statements here is similar to the situation in McGowan. See also Andersen v. Thieret, 903 F.2d 526, 531-32 (7th Cir.1990) (suspect in custody said “I stabbed her,” and court held the statement was admissible regardless of whether Miranda warnings had been given because defendant volunteered statement without any interrogation). The statements admitted at trial were not the product of improper interrogation. Their use at trial did not violate Lowery’s constitutional rights. III. Asserted Prosecutorial Misconduct Lowery contends that he was denied due process at both the guilt phase and at the penalty phase due to prosecutorial misconduct. In evaluating a claim of prosecutorial misconduct as a violation of the petitioner’s due process right to a fair trial, the inquiry is whether the prosecutor’s conduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). “[T]he well-settled standard of review [is] that we are to consider the prosecutor’s conduct not in isolation, but in the conte)ct of the trial as a whole, to determine if such conduct was ‘so inflammatory and prejudicial to the defendant ... as to deprive him of a fair trial.’ ” United States v. Chaimson, 760 F.2d 798, 809 (7th Cir.1985), quoting United States v. Zylstra, 713 F.2d 1332, 1339 (7th Cir.1983). The test for fundamental unfairness is whether there is a reasonable probability that the errors changed the outcome of a case. See United States v. Falk, 605 F.2d 1005, 1011 (7th Cir.1979) (applying Donnelly v. DeChristoforo ). A. State’s Opening Statement. The first instance of asserted prosecutorial misconduct at the guilt phase occurred during the State’s opening statement, when the prosecutor stated to the jury that they would hear testimony from Janet Brown. The prosecutor told the jury that the police officers would testify that when she heard Lowery’s name at the hospital the night of the shootings, “she sat straight up in bed and had goose flesh all over her and you will almost be able to hear that on the tape,” and that, although considerable time had passed since the night of the shootings, the prosecutor predicted that the jury would “see fear still. Even though there is a Judge .and a jury in between, you will still see fear.” 4 R. 943-44. Brown’s demeanor when the police interviewed her and when she identified Lowery shortly after the shootings was certainly relevant. Brown’s demeanor on the witness stand several years after the shootings was also relevant evidence. The prosecutor’s statement was a description of the evidence which the prosecutor intended to present and a characterization of one aspect of Brown’s demeanor which the prosecutor believed the jury would perceive. This statement was not improper. B. State’s Final Argument. Lowery contends that the prosecutor also transgressed the bounds of fairness in various ways during the State’s closing argument at the guilt phase. One such occasion was the following statement: As you have seen, we have gone through a lot to get here. I have gone through a lot. To be able to stand here and tell this man to his face, as the evidence shows plainly that he is a murderer. To ask you to do your duty, , to convict him as such. The Thompson’s [sic], Janet and Mark and Gertrude, the Thompson’s [sic] and their caretaker were harmless, they were helpless, they were defenseless and he put a gun to their heads and he pulled the trigger. And that is why he picked them. Because they were helpless and harmless and defenseless. Men who do things like that don’t believe in giving anybody a chance. Not one chance. Let alone a second. Mercy is not in the vocabulary of somebody like that. And it is no accident that on the day of his arrest, he was talking about getting his name in the paper like Drol-linger, it is no accident that days later he was telling Sergeant Ross that he heard he was bigger than Manson. 8 R 1958. The prosecutor also referred to the photographs of the crime scene: And undoubtedly Mark was standing there at that time and he set off the siren, watching, you can imagine how he must have felt, his wife being shot (Mr. Meyers not speaking into microphone, extremely hard to pick-up or understand.) (MR. MEYERS SHOWING SLIDES PREVIOUSLY SHOWN). This is what he did. She had absolutely no way to help herself, these killings had nothing to do with the robbery. These murders were for the fun of it. This is probably, this horrible photograph is anybody could ever look at. But you can see what his handiwork was.... You can see where he was laying and the blood was pulsating from his head.... Unfortunately in murder cases the evidence is unbelievable [sic] horrible. I don’t think I have ever seen like that. 8 R 1961-63. These- comments did not deny Lowery a fair trial. These were comments on the evidence and the nature of the crimes. The references to Charles Manson and Drollinger (who was apparently another convicted murderer well-known in the area at the timé) came from Lowery himself in his comments to Sergeant Ross, and the jury had heard evidence of those statements. The comment on the photographic evidence as “horrible” was understandable and not'improper. The further comment that the photographs were worse than the prosecutor had seen before was not proper, but it was not so serious as to deny Lowery a fair trial. There is no serious factual issue of guilt or innocence here. ■ Also, the judge warned the jury more than once that counsel’s arguments were not evidence, and juries tend to take such arguments with a substantial grain of salt. Lowery also contends the prosecutor told the jury that the presumption of innocence did not apply to him. “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). In the comments in dispute, the prosecutor told the jury: We have a interest in seeing that the rest of us are protected from criminals. We have a interest in seeing that the guilty are convicted. We have no interest at all in seeing that the guilty are found not guilty. Would it make any sense that we would write a law for ourselves that would say that a juror could believe that a man was guilty and still find him not guilty? Would that make any sense? Every once in awhile you will hear a juror who gets very confused on the question of reasonable doubt and he will say, well, I believed he was guilty but, you didn’t prove it. A juror like that simply does not understand what he was supposed to be doing, what he was supposed to be asking himself. And why? It may very well be that we can’t prove a man guilty, but, what is a jury going to say when he thinks about a case and he asks himself, do I really doubt that he is guilty? He is going to say to himself, I don’t know. He is going to himself, I really doubt that he is guilty. If he says to himself, if he looks inside himself and thinks about the evidence and he says, I believe he is guilty, then he is. There is a very old rule of law about the presumption of innocence. Along these lines, I am just going to make this one more point, and then I am going to stop lecturing on this, it is very important that nobody here gets confused on this, the presumption of innocence is a device we use to tell jurors to keep their minds open till all the evidence is in. It' is just the opposite side of the coin, to proof beyond a reasonable doubt. And there is an old principle that goes along with that says, and really puts this completely in focus, that the presumption of innocence is a rule [devised] to protect the innocent as far as humanly possible and not designed to protect the guilty from merit of punishment. 8 R 1972-73. These comments were not improper. They reflect an argument by the prosecutor that the presumption of innocence had been rebutted. Even if this argument went too far, it did not deny Lowery a fundamentally fair trial. As noted above, the judge properly instructed the jury that the statements of counsel were not evidence and that the court would instruct the jury concerning the law. .The evidence of guilt was overwhelming and is not disputed here as a factual matter. The remaining challenges to the prosecutor’s comments at the guilt phase of Lowery’s second trial are not persuasive. The prosecutor commented on the testimony of Danny Harrison, a prison inmate who testified about statements Lowery made in jail. In doing so, the prosecutor did not unduly suggest that Lowery should be feared. Similarly, the prosecutor stated that he was present in the courtroom for Mark Thompson, for Gertrude Thompson and for Janet Brown and was asking for justice from the jury, for the jury to do their duty and to “tell Jim Lowery he is not going to get away with murder.” 8 R 1996. This characterization of the prosecutor’s role was not improper. The prosecutor did not imply to the jury that he had knowledge of the crimes beyond what had been shown by the evidence, and he did not appeal to any inference that was not relevant to the issues in the trial or not supported by the evidence. Cf. United States v. Young, 470 U.S. 1, 7-8, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (counsel should not assert or imply personal knowledge beyond the evidence, nor assert personal opinion about the case, but may argue counsel’s analysis of the evidence). The court reads the prosecutor’s statements not as an argument to convict based on fear or public pressure, but as an argument to convict because the evidence powerfully showed Lowery was guilty of murdering the Thompsons. That was proper. C. State’s Argument at the Penalty Phase. Lowery contends that it was error for the prosecutor to inform the jury that two aggravating circumstances under the death penalty statute — commission of another murder, and murder in attempting to commit burglary — had already been found beyond a reasonable doubt through the jury’s verdict at the guilt phase. The prosecutor’s statement was not error, for the jury had found Lowery guilty of two murders during a single episode (thus escaping the difficulty of identifying aggravating factors from separate episodes noted in State v. McCormick, 272 Ind. 272, 397 N.E.2d 276 (1979)). Lowery does not cite any constitutional basis for his argument that this argument unfairly inflated the double murder at the penalty phase. Lowery points out that the prosecutor misstated the law at the end of the State’s opening statement in the penalty phase when he stated that the jury would find that the aggravating circumstances “are not outweighed by any mitigating circumstances which might be argued to exist in this case.” 9 R 2056. Indiana law puts the burden of proof on the prosecutor and requires the jury to determine whether the aggravating circumstances outweigh the mitigating circumstances. Ind.Code § 35-50-2-9(e)(2) & (k); Harrison v. State, 659 N.E.2d 480, 482 (Ind.1995). The court properly instructed the jury on this point, and there is no reason to think that the jury failed to understand and follow those instructions. The prosecutor’s misstatement on this point of law does not warrant habeas relief. Lowery also argues that the prosecutor made improper remarks in the closing argument at the penalty phase by appealing to the jury’s passions and prejudice. First, Lowery points to remarks in the closing argument at the. penalty phase, delivered about two weeks before Christmas, where the prosecutor said that the Thompsons’ son would be unable to spend Christmas with his parents. 9 R. 2237. He also said that Lowery had received more due "process than he had given the Thompsons. 9 R 2248. Second, Lowery complains about the prosecutor’s comments in his rebuttal concerning his acquaintance with the Thomp-sons: Mr. Giddings said uh, state’s attorney didn’t know Mark Thompson, I knew him personally. I practiced law with him. And you heard what he was like. You heard this evidence. He was warm, he was humorous, he was intelligent. He was a prosecutor back in prohibition days. In Lafayette. He and his wife are fíne people and everybody liked them. 9 R 2264-65. These comments must be understood in context. In the defense closing argument at the penalty phase, defense counsel had argued: Nothing I say to you now, nothing I do can bring these people back. Nothing we can say here can give back the lives of Mark and Gertrude Thompson. I did not know Mark Thompson, the State’s attorneys did not know Mark Thompson. I know he was an attorney, I don’t know if he were standing here today if he would ask you for the death penalty for that man, I don’t know whether he would or not. I did not know Mrs. Thompson and I don’t know if she would ask you that. 9 R 2256. (emphasis added). The comments on the loss suffered by the victims’ family and community were fair comment on the victims’ deaths and their significance, a matter that is relevant to the constitutionally valid consideration of retribution in sentencing. There is no blanket prohibition on the jury considering such factors. See Payne v. Tennessee, 501 U.S. 808, 826-27, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The prosecutor’s comment about being personally acquainted with the Thompsons was irrelevant and improper, although it was an understandable response to the incorrect statement by defense counsel. In the context of the entire penalty phase, this statement was not so prejudicial as to render the proceeding fundamentally unfair. Viewed as part of the prosecution’s entire argument, which otherwise related to legitimate sentencing concerns such as Lowery’s past criminal history, his mental competence, and the nature of the crime, the improper statement was brief and was highly unlikely to have affected the outcome of the penalty phase. Lowery is not entitled to relief based on any asserted prosecutorial misconduct. IV. Caldwell v. Mississippi and the Jury’s Role at the Penalty Phase A death sentence may not be based on “a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Lowery claims that he was denied due process and a reliable sentencing determination because the jurors were told that their role at the penalty phase was to make a recommendation to the trial judge, who would make the final sentencing decision, and because jurors were not told the judge would need to give their recommendation any important weight or consideration. In Caldwell v. Mississippi, where the jury made the decision to impose the death penalty, the prosecutor had argued that the jury’s decision “is not the final decision” and that its decision would be “automatically renewable” by the state’s supreme court. When the defense objected, the trial judge had told the jury that its verdict would be “renewable automatically.” 472 U.S. at 325-26, 105 S.Ct. 2633. The Supreme Court of the United States held that these comments required reversal because the suggestion that “the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.” Id. at 333, 105 S.Ct. 2633. Caldwell applies only where the jury is misled about its role in the sentencing process in a way that allows it to feel less responsible for the sentencing decision than it actually is. This is clear from the majority/plurality opinion in Caldwell, from Justice O’Connor’s concurring opinion, and from later comments by the Court in Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989); Darden v. Wainwright, 477 U.S. 168, 183-84 n. 15, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); and Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). That is, to violate the principles of Caldwell, the remarks to the jury must describe inaccurately the role of the jury under state law. Indiana law provides that in a capital jury trial, the jury makes a recommendation to the judge as to whether the death penalty should be imposed. The judge must consider the jury’s recommendation, but the final decision is the judge’s. Ind.Code § 35-50-2-9(e). The Seventh Circuit recently addressed the application of Caldwell to the jury recommendation procedure in Indiana in Fleenor v. Anderson, 171 F.3d 1096 (7th Cir.1999), affirming Fleenor v. Farley, 47 F.Supp.2d 1021 (S.D.Ind.1998). In Fleenor the jury was told repeatedly and correctly that its decision would be a recommendation. The trial judge instructed the jury that its recommendation would be “a very valuable contribution” to the sentencing process. See 47 F.Supp.2d at 1031. In closing argument in the penalty phase, the prosecutor in Fleenor emphasized the jury’s advisory role. See 171 F.3d at 1099. The panel majority in Fleenor found no Caldwell violation (and thereby affirmed this court’s conclusion on the same issue). The majority expressed doubts about whether Caldwell could properly be applied at all to the jury recommendation process where state law did not require the trial judge to give the jury’s recommendation any particular weight, but the majority decided the case on the assumption that Caldwell could be applied. See 171 F.3d at 1098-99. In dissent, Judge Ripple argued that, under the totality of the circumstances, the jury had been misled. Judge Ripple focused in part on the line of Indiana cases (discussed below) deciding the weight a jury’s recommendation must be given by the trial court and the Supreme Court of Indiana, and he concluded that the jury should have been told that if it did not recommend the death penalty, “that recommendation would have constituted a high hurdle for the state to overcome before the state trial judge would have imposed the death penalty.” 171 F.3d at 1105 (Ripple, J., dissenting). To apply the principles of Caldwell, the court first reviews the relevant comments and then analyzes them in terms of their accuracy as a matter of Indiana law. During the jury selection process, the trial judge told the prospective jurors: In Indiana, after the trial of a case, if a defendant is found guilty, then another hearing is held before the jury, where the parties have an opportunity to present aggravating and mit [sic], evidence of aggravating and mitigating circumstances in the case and then the jury again retires to make a recommendation to the court from the jury whether they recommend the death penalty. It’s not the function of a jury to sentence a defendant. It is solely the responsibility of the Judge, me, and the Judge must make the final decision. The jury’s opinion is merely a recommendation to me. PCR Ex. 28 at 48. The judge made other similar comments during voir dire. See, e.g., id. at 135, 334-35, 514. The voir dire by the prosecutor repeatedly used the term “recommend” in asking prospective jurors whether they would be willing to consider the death penalty if the case reached the penalty phase. Lowery points out that two jurors who actually served on the jury indicated that the jury’s role in making a recommendation would make a difference to them: Prosecutor: All right. You think the death penalty law is a good law? Ms. Shrum: Yes. Prosecutor: If you felt the circumstances were warranted, could you come out in open court and face the person and tell him number one you found him guilty of murder, and number two if you found it was, war, warranted by the circumstances, come back, face that person, and tell them you found them uh, that they merit the death penalty, that you’d recommend that? Ms. Shrum: Yes. Prosecutor: All right. Does it make any difference to you that you recommend and don’t actually sentence the person to the death penalty? Ms. Shrum: Yes. H? % ífc H* ‡ Prosecutor: ... Could you consider evidence and render a verdict regarding the death penalty in this case? Does it make any difference to you that you only recommend? Ms. Jamison: Yes, it would make a difference. Prosecutor: Okay. How does that make a difference to you, why’s that make a difference? Ms. Jamison: Guess I would feel the Judge had the final say. Prosecutor: Okay. Do you, you understand he considers your recommendation? If the death penalty statute, if you were in the legislature ■ and had an opportunity to vote for whether the death penalty statute should be repealed or kept, how would you vote? Ms. Jamison: Keep it. PCR Ex. 28 at 570, 572-78. At the beginning of the penalty phase, the judge instructed the jury: If the State fails to prove beyond a reasonable doubt the existence of at least one of the aggravating circumstances alleged or if you find that any mitigating circumstances outweigh the aggravating circumstances, you must not recommend the death penalty. If the State did prove beyond a reasonable doubt the existence of at least one of the aggravating circumstances alleged and you further find that such aggravating circumstances outweigh any mitigating circumstances, you may recommend that the death penalty be imposed. The law provides for the penalty of death upon conviction for the crime of murder, under circumstances. You are to consider both the aggravating and mitigating circumstances and recommend whether the death penalty should be imposed in this case, the Court is not bound by your recommendation. 9 R 2043-44. During the final instructions of the penalty phase, the judge instructed the jury: The law provides for the penalty of death upon conviction for the crime of murder under certain circumstances, you are to consider both aggravating and mitigating circumstances and recommend whether the death penalty should be imposed in this case. The Court is not bound by your recommendation. 9 R 2273. The judge did not give the jury any further instructions on the weight or consideration that the judge would give the jury’s recommendation when he made the final decision on the sentence. In Caldivell itself and other cases dealing with the role of a jury’s decision o