Full opinion text
MEMORANDUM OPINION AND ORDER PLUNKETT, District Judge. Dickey Gaines, a/k/a Dickie Gaines (“Petitioner”), is currently incarcerated at the Menard Correctional Center under a sentence of death. He brought this habeas corpus action pursuant 28 U.S.C. § 2254 to redress what he claims are errors of constitutional magnitude at his trial and sentencing hearing. Petitioner raises some twenty-two alleged violations of his constitutional rights. For the reasons set forth below, we conclude that Petitioner received ineffective assistance of counsel at his sentencing hearing, and that his sixth amendment rights were thus violated. Accordingly, Petitioner’s sentence of death is vacated, and Petitioner is to be resentenced. In October 1979, Petitioner was found guilty after a jury trial of the murders of Andre Davis and Causia McCall; the attempted murder of Lenious Thomas; armed violence against Davis, McCall, and Thomas; and the armed robbery of Davis and of Thomas. A sentencing hearing was held at the State’s request pursuant to Ill.Rev.Stat. ch. 38, § 9-1, after which the same jury that convicted Petitioner determined that Petitioner was to be sentenced to death. On appeal, the Illinois Supreme Court reversed Petitioner’s conviction on one count of armed robbery but otherwise affirmed his conviction and death sentence. People v. Gaines, 88 Ill.2d 342, 58 Ill.Dec. 795, 430 N.E.2d 1046 (1981). On March 3, 1982, Petitioner petitioned to the United States Supreme Court for a writ of certiorari. This petition was denied. Gaines v. Illinois, 456 U.S. 1001, 102 S.Ct. 2285, 73 L.Ed.2d 1295 (1982). On November 8, 1982, Petitioner filed a post-conviction petition in the Circuit Court of Cook County. The petition was denied on March 9, 1983, and this decision was affirmed by the Illinois Supreme Court on November 30, 1984. People v. Gaines, 105 Ill.2d 79, 85 Ill.Dec. 269, 473 N.E.2d 868 (1984) . Petitioner again petitioned for a writ of certiorari, which petition was denied on May 28, 1985. Gaines v. Illinois, 471 U.S. 1131, 105 S.Ct. 2666, 86 L.Ed.2d 282 (1985) . On November 15, 1985, after the Supreme Court denied certiorari, but before the mandate had issued from the Illinois Supreme Court, Petitioner sought leave in the Illinois Supreme Court to file an amended or successive post-conviction petition asserting a newly discovered claim and certain newly-discovered evidence. The Illinois Supreme Court denied this motion, and stayed Petitioner’s execution pending the filing by Petitioner of a habeas corpus petition in federal court and entry of judgment by the highest federal court to adjudicate the petition. The Illinois Supreme Court ordered that Petitioner file his petition by December 18, 1985, and Petitioner complied with that order. The current petition raises claims that may be divided roughly into three categories: (1) alleged errors at trial, (2) alleged errors at the sentencing hearing, and (3) claims challenging the constitutionality of Illinois’ death penalty statute. We address the issues in this order. I. Trial Errors A. Racial Discrimination in Voir Dire (Claim H) Petitioner first contends that the State violated his fourteenth amendment rights by using peremptory challenges systematically and purposefully to exclude black members of the venire in Petitioner’s case and in other capital cases in Cook County. Petitioner argues that the State’s conduct deprived Petitioner of his rights enunciated by the Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State argues that Petitioner is not entitled to the benefit of the Court’s decision in Batson, and that Petitioner’s Swain claim is barred by procedural default. In Swain, the Supreme Court rejected an argument that the striking of blacks in a particular case could give rise to a claim of denial of equal protection of the laws. The Court acknowledged, however, that a state’s deliberate exclusion of blacks as jurors in case after case might well constitute a violation of the Equal Protection Clause, indicating that a prima facie case of purposeful discrimination could be made out upon proof that in case after case, regardless of the circumstances, the prosecution was responsible for the removal of blacks who had been selected as qualified jurors and who would have survived challenges for cause, with the result that no blacks ever served on petit juries. A number of lower courts following Swain reasoned that proof of repeated striking of blacks over a number of cases was necessary to establish an equal protection violation. See Batson, 106 S.Ct. at 1720. The Court in Batson found that this interpretation of Swain “placed on defendants a crippling burden of proof,” id., such that “prosecutors’ peremptory challenges are now largely immune from constitutional scrutiny.” Id. at 1720-21. Thus, the Court rejected this evidentiary burden and held that a defendant could make a prima facie showing of purposeful discrimination based solely upon the prosecutor’s exercise of peremptory challenges at his own trial by showing (1) that the defendant is a member of a cognizable racial group, (2) that the prosecutor has exercised peremptory challenges to remove members of the defendant’s race from the venire, and (3) that the facts and circumstances surrounding the use of the challenges raise an inference that the prosecutor used that practice to exclude members of the venire from the petit jury on account of their race. Id. at 1722-23. Petitioner argues that he states a claim under both the Swain standard and the Batson standard. Petitioner’s position under Batson must fail, however, as the Supreme Court has made clear that while the Batson decision does apply retroactively to cases pending on direct appeal at the time the Batson decision was issued, Griffith v. Kentucky, — U.S. —, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), Batson does not apply to cases pending on collateral review of convictions that became final before that opinion was announced. Allen v. Hardy, — U.S.—, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per curiam ). Accordingly, even if Petitioner could show that the State engaged in purposeful racial discrimination during the voir dire in his case, he would not be entitled to relief on this basis. With respect to Petitioner’s argument that he states a claim under the Swain standard, the State insists that Petitioner never presented this claim to the state courts. We find that the State is correct. On direct appeal, Petitioner did not argue that the prosecution was exercising its peremptory challenges to exclude blacks from the venire in case after case such as to give rise to a valid claim under Swain. Rather, Petitioner argued that Swain presented too difficult a standard to meet and that the Illinois Supreme Court, which followed Swain, see Gaines, 85 Ill. Dec. at 274, 473 N.E.2d at 873, should consider altering the standard to be applied to claims alleging violations of the state constitution, as other state supreme courts had done. The Illinois Supreme Court' noted: The defendant’s remaining objection to the jury goes to its racial composition. The defendant, who is black, states that the jury contained no black persons, and that that circumstance resulted from the prosecution’s having used some of its peremptory challenges to exclude veniremen who were black but were not subject to removal for cause. The defendant concedes that under Swain v. Alabama, ... the motives of the prosecution in exercising peremptory challenges are not subject to examination absent a showing that blacks have been systematically prevented from serving on particular juries or from jury service in the county or State, a showing not attempted here. ... A similar position has been taken by this court in People v. Harris (1959), 17 Ill.2d 446, 450-51, 161 N.E.2d 809, cert. denied (1960), 362 U.S. 928, 80 S.Ct. 755, 4 L.Ed.2d 747.... The defendant cites People v. Wheeler (1978), 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890, and Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110, in which the supreme courts of California and of Massachusetts rejected Swain, and he urges that this court should follow their lead. 58 Ill.Dec. at 803, 430 N.E.2d at 1054 (emphasis added). It is clear, therefore, that Petitioner made no attempt to state a federal constitutional claim, but instead made a decision to try to change state law. This is thus not a situation in which Petitioner raised a constitutional claim but simply failed to prove it, but rather is a situation in which Petitioner, through his counsel, deliberately chose not to attempt to raise or prove the claim at all. It is settled law in Illinois that the failure to present a constitutional claim on direct appeal operates as a procedural default and hence a waiver of the claim. United States ex rel. Duncan v. O’Leary, 806 F.2d 1307, 1313 (7th Cir. 1986). See also Dently v. Lane, 712 F.2d 1172, 1176 (7th Cir.1983) (quoting Goins v. People, 103 Ill.App.3d 596, 59 Ill.Dec. 312, 313-14, 431 N.E.2d 1069, 1070-71 (1981)). Upon review of the denial of Petitioner’s post-conviction petition, the Illinois Supreme Court noted that Petitioner was making the same claim that he had made on appeal, i.e., that the prosecution had engaged in discrimination in his case. The court found this claim barred by res judicata, and again noted that Petitioner had not raised a Swain issue in his post-conviction petition: [U]nder the holding of Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, ... the defendant’s claim regarding jury selection is insufficient to raise an issue of constitutional proportion. In Swain, the court held that “the Constitution [does not] requir[e] an examination of the prosecutor’s reasons for the exercise of his challenges in any given case.” ... Rather, a constitutional issue is raised only when the record demonstrates that blacks in a particular county or State have been consistently and systematically denied the opportunity to serve on juries____ Defendant makes no such showing in his petition for post-conviction relief. Neither the petition nor the affidavit [asserting that the state utilized its peremptory challenges “to exclude five or six black jurors”] raises the issue of the case-by-case exclusion of blacks required by Swain. As such, defendant’s assertions regarding the State’s use of its peremptory challenges do not raise an issue of ‘substantial denial of his rights under the Constitution’ as required by the Post-Conviction Hearing Act____ 85 Ill.Dec. at 274, 473 N.E.2d at 873. Thus, the Illinois Supreme Court made clear that if Petitioner had not waived his Swain claim on direct appeal, he certainly had waived it in the post-conviction proceedings. Petitioner “raised” this claim for the first time in his motion to the Illinois Supreme Court for leave to file an amended or a successive post-conviction petition, in which he urged that he be allowed to present newly-discovered evidence regarding the racial composition of juries in capital cases, as that newly-discovered evidence “is necessarily of recent origin and could not have been asserted previously.” Resp. Exh. K at 21-22. Although Petitioner characterized his request as one to expand the record to include new evidence of a claim already raised, it is clear from reviewing the Illinois Supreme Court’s two earlier opinions that the court never considered a claim of case-after-case discrimination to have been raised before. As we earlier rioted, Petitioner had explicitly argued up until this late point in the state court proceedings that he could not make such a claim. The Illinois Supreme Court denied Petitioner’s request for leave to amend without opinion; however, taking all of the court’s pronouncements on this particular question into account, there can be little doubt that it denied Petitioner leave to raise a Swain claim based on racial discrimination in case after case on waiver grounds. See, e.g., Harris v. Reed, 822 F.2d 684, 687 (7th Cir.1987) (where there is neither an explicit finding of waiver nor an expression of intention to ignore waiver, reviewing court should try to assess state court’s intention to the extent possible). Accordingly, Petitioner is barred from raising his Swain claim in this court unless he can show cause for his failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); United States ex rel. Duncan v. O’Leary, 806 F.2d 1307, 1313 (7th Cir.1986). We conclude that Petitioner has not made this showing. Petitioner urges first that he had “cause” for any procedural default because the factual basis for his claim was not reasonably available to counsel. Specifically, Petitioner asserts that he was one of the first black defendants in Cook County to be convicted and sentenced to death by a jury, and therefore could not have demonstrated the State’s pattern of discrimination in other death penalty cases. We do not understand why Petitioner takes the position that his showing of discrimination must be limited to capital cases. As the Supreme Court stated in Swain: [W]hen the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance. 380 U.S. at 223, 85 S.Ct. at 837 (emphasis added). In light of the Supreme Court’s discussion in Swain, it seems to us that Petitioner could have, and perhaps should have, attempted to make a factual showing of racial discrimination by the State in the voir dire process by providing information on the State’s conduct in a variety of different criminal proceedings. Certainly evidence regarding the selection of jurors in other murder cases or cases involving other particularly serious offenses would have been relevant to the factual showing Petitioner needed to make under the Swain standard. Petitioner makes no claim, nor could he, that such evidence was not reasonably available to counsel at the appropriate times. Accordingly, we reject Petitioner’s argument that he has established “cause” for his procedural default on this basis. Petitioner next urges in the alternative that “if any failure to object or to make a better record waives this claim as a matter of state law, that failure was the result of ineffective assistance [of counsel].” Pet. Br., Sept. 19, 1986, at 93-94. This contention is wholly without merit. While the Supreme Court has held that ineffective assistance of counsel does establish cause for a procedural default, Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986), the Court made clear that the showing a petitioner must make is no less than that which he must show in order to establish that his representation was constitutionally defective: We think ... that the question of cause for a procedural default does not turn on whether counsel erred or on the kind of error counsel may have made. So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. 106 S.Ct. at 2645-46. With respect to his Swain claim, Petitioner cannot make the required showing. Petitioner’s counsel was clearly apprised of the applicable federal and Illinois precedents, as well as the developing law in other state supreme courts. It is clear that counsel made a strategic decision based on this existing law to argue that Swain required a showing that was too difficult, and should be rejected by the Illinois Supreme Court as the appropriate standard under Illinois law, as it had been rejected in California and Massachusetts by the supreme courts of those states. This decision, while unsuccessful, cannot be deemed to fall outside the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Petitioner did not receive ineffective assistance of counsel that would establish cause for his procedural default. Petitioner’s failure to establish “cause” obviates the need for us to examine the “prejudice” prong of the analysis. We conclude that Petitioner is barred from raising his claim based on Swain v. Alabama in this court. B. The Death Qualification Process (Claim I) Petitioner contends next that the trial court’s voir dire examination, during which thirty-two jurors were excluded based upon their responses to the judge’s questions concerning the death penalty, created a jury that was biased in favor of finding Petitioner guilty. Petitioner urges that he has provided unrefuted expert affidavits in support of this contention. Petitioner offers the affidavit of Edward H. Bronson, a professor of political science at the California State University at Chico. Professor Bronson reviewed the transcript of Petitioner’s voir dire and concluded that the death qualification process in this case “made the jurors, who survived that process more conviction-prone and more likely to vote for death than they otherwise would have been.” Bronson affid., Habeas Pet.Exh. B, 1118. Professor Bronson indicates his concern that the trial judge’s questions regarding the death penalty asked the jurors to assume Petitioner’s guilt; that the questions referred to the possibility of the death penalty without referring to any other possible penalty; and that the voir dire was not sequestered, with the result that the jurors were “cued” that the court disapproved of those who expressed opposition to the death penalty. Petitioner also offered affidavits on this issue from Professor Hans Zeisel of the University of Chicago, and Professor Reid Hastie of Northwestern University. While Petitioner has taken great pains to prove that the voir dire in this case resulted in a jury more likely to convict him, Petitioner is somewhat ambiguous as to why this evidence, even if accepted, proves that his conviction is unconstitutional. In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the Supreme Court un ambiguously held that even if social scientific evidence could establish that death qualification produces a jury more prone to convict, the Constitution nonetheless does not prohibit the states from death qualifying juries in capital cases. The Court found that death qualification violates neither a defendant’s right to a jury selected from a representative cross-section of the community nor his right to an impartial jury. Petitioner argues that McCree stands only for the proposition that the death qualification process does not per se, violate a defendant’s constitutional rights, and that McCree left open the possibility that a defendant could still prove that in his case the voir dire produced a jury more likely to convict. Petitioner insists that his unrefuted expert affidavits provide such proof. Petitioner's argument is without merit. As we noted previously, the Court’s decision in McCree did not turn on whether the respondent could make the evidentiary showing that his jury was more likely to convict him; the Court simply assumed that he had made such a showing, in his case and in all cases in which the death qualification process is used. It then went on to find that death qualification, even though producing juries more likely to convict, does not offend the Constitution. The Supreme Court’s decision is dispositive, and thus binding on this court. Similarly, Petitioner asserts that his case is distinguishable from McCree because the respondent in McCree “concede[d] that the individual jurors who served at- his trial were impartial.” See McCree, 106 S.Ct. at 1767. This argument is also without merit. As the Court’s opinion made clear, what the respondent had conceded was that he had no claim that the jurors were affected by such irregularities as pretrial publicity, ex parte communications, or other undue influence. See id. The Court noted: In short, McCree does not claim that his conviction was tainted by any of the kinds of jury bias or partiality that we have previously recognized as violative of the Constitution. Instead, McCree argues that his jury lacked impartiality because the absence of “ Witherspoon-excludables” “slanted” the jury in favor of conviction. Id. Petitioner, like the respondent in McCree, has made no claim of partiality other than that his jury was “slanted” toward conviction because the jury was death qualified. Again, we find that McCree is controlling. Finally, although Petitioner argues that his voir dire was uniquely defective, the affidavits, though unrefuted by the State, do not establish that Petitioner’s voir dire process was any different from that which the Court considered in McCree. In fact, the contrary is implied. See, e.g., Bronson affid., Habeas Pet. Exh. B, 119 (“In the Gaines .voir dire, as in many other voir dires that I have read, the judge asked prospective jurors to assume that the defendant will be found guilty.” (emphasis added)). The affidavits merely point to particular aspects of the questioning which, in these affiants’ opinions, caused the resulting jury to be more likely to convict Petitioner. The affidavits do not state that the process used in ■ Petitioner’s case differed from that employed in other capital cases in which a proper voir dire was conducted. For all these reasons, we find Petitioner’s claim to be without merit. C. The Confrontation Clause (Claim K) Petitioner and his brother, Michael Gaines, were originally named in a single indictment. Prior to trial, Petitioner’s counsel moved for a severance because Michael Gaines had made several inculpatory statements to the police, many of which not only implicated Petitioner but also named him as the killer. The State did not object to the motion and the court granted the severance. During Petitioner’s trial, the State called Chicago Police Department investigator Robert Dwyer. See Tr. at 632-77. Dwyer testified that in December of 1978, he was present in the Gaines residence when Petitioner telephoned his mother. After receiving Mrs. Gaines’ permission to listen to the conversation on the extension telephone, Dwyer then overheard several incriminating statements made by Petitioner to his mother and his brother, Michael. Those incriminating statements were related by Dwyer to the jury. The prosecutor then directed Dwyer’s attention to early January of 1979 when Dwyer interviewed Petitioner in custody. Dwyer testified that after he gave an appropriate Miranda warning, he explained to Petitioner some of the evidence that he had gathered against him. Specifically, Dwyer testified as follows: A: To the best of my recollection I informed him that he had just been identified by an eyewitness as the individual who had shot and killed Mr. Davis and Mr. McCall. I also told him that he had. been implicated by his own brother as the person who shot and killed these two— Mr. Walsh: I’ll object Judge. Move for a mistrial. The Court: Objection overruled. Motion for mistrial is denied. Mr. Boyle: Q Please continue, officer. A: I also called to his attention that we did in fact have the murder weapon in custody and that his brother had given us an accounting of the whole sequence of events. Tr. at 648. Petitioner did not comment on or make any statement concerning Dwyer’s accusation. The State’s ostensible purpose at trial for permitting Dwyer to testify to Michael Gaines’ out-of-court assertion was that the testimony was “foundational.” Although Dwyer’s testimony was admitted by the trial judge apparently on this basis, we are baffled by the State’s position at trial. If by that argument the State meant that the hearsay statement was appropriate because Petitioner later adopted or approved it in his response and thus Dwyer’s statement became attributable to Petitioner, the State is simply wrong. Petitioner did not adopt or approve any of Dwyer’s statements except to admit by inference that he had in fact spoken on the telephone with his mother and brother in December (an admission which had nothing whatsoever to do with the confession of Michael Gaines). See Tr. at 654. Petitioner made no comment of any kind in response to Dwyer’s statement concerning Michael Gaines’ statements. Before this court the State has argued that Dwyer’s statement was not offered for the truth of the matter contained in it — namely, that Michael Gaines had identified Petitioner as the killer — but only to show that Dwyer in fact made the statement (whether true or false) to show the circumstances under which Gaines’ later admission about talking on the telephone had been made. In support of this position, the State relies on Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985), reliance which can most charitably be described as a misunderstanding of the holding in Street and of the hearsay rule. It is of course true, as recognized in Street, that a confession of a third party implicating the defendant can be introduced at the trial of the defendant for non-hearsay purposes. In Street, for instance, the confession of the accomplice was introduced to rebut Street’s claim that he was coerced into making his confession and that he simply parrotted his accomplice’s confession. The Supreme Court approved the use of the accomplice’s confession, not to implicate the defendant, but to demonstrate that the defendant’s confession contained details not present in his accomplice’s confession. Thus, the Supreme Court recognized that when there is a non-hearsay purpose to be served, a confession of another person may be admissible. The State’s reliance on Street is undercut by the absence of any relevant non-hearsay purpose for Michael Gaines’ confession. The placing of Michael Gaines’ statement before the jury is completely irrelevant to Petitioner’s comments to Dwyer concerning his telephone call. Further, in Street, the jury was instructed by the trial judge that it should not consider the confession by the accomplice as true. No such instruction was given during Petitioner’s trial. We believe this case presents a clear confrontation problem under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Supreme Court held that because of the substantial risk that the jury would look to the incriminating extrajudicial statements made by a co-defendant in determining the defendant’s guilt, the admission of the co-defendant’s confession into evidence violated the defendant’s right of cross-examination secured by the confrontation clause of the sixth amendment. See also Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). In this case, the jury heard a hearsay statement implicating Petitioner in the murder and naming him as the trigger man. The jury could certainly have considered such a statement as true, particularly in the absence of any limiting instructions. Thus, we find that Dwyer’s statement concerning a confession by Michael Gaines which named Petitioner as the killer violated Petitioner’s rights under the sixth amendment. Such a finding does not end our inquiry, however. We must now determine whether the constitutional violation was harmless. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Initially, we note that Dwyer’s statement about Michael Gaines’ confession which implicated Petitioner was a single statement in the course of a trial which lasted many days. After the statement was only partially completed, it was interrupted by an objection, and when the testimony continued, the statement was not referred to again. Neither the prosecution nor the defense counsel ever questioned any other witness about the statement, it was ignored during the cross-examination of Dwyer, and neither side discussed it or even mentioned it during closing argument. Secondly, quite apart from the inadmissible statement by Dwyer and contrary to Petitioner’s assertions in his briefs, there was independent evidence not only that Petitioner participated in the murder of two people, but in fact that he was their killer. That evidence was received from an eyewitness whose credibility was substantially unimpeached at trial. Lenious Thomas testified to the circumstances leading up to the murders and told the jury that he had seen Petitioner with a gun. The testimony continued as follows: ■ A: Well, after he said “Stick-up,” I had my hand in my pocket, you know. I had two dollars in there so I pulled it out, you know. Q: As you pulled the money out, what happened then? A: I turned toward him, you know, turned my head over there and he shot. Q: When you say “he shot,” who shot? A: Dickey Gaines. Q: After he fired that shot, what happened then? A: I fell to the floor and he kept on shooting. Tr. at 491 (emphasis added). Thus, an eyewitness with no known motive to lie identified Petitioner as the killer. During the cross-examination, Thomas admitted that he fell to the floor after the first shot and was face down on the floor for much of the shooting, but that testimony does not discredit the witness’ earlier assertion that he saw Petitioner continue to shoot. No witness even suggested that anyone else had a gun. Thomas’ testimony was corroborated in substantial measure by Petitioner himself during his telephone call with his brother, Michael, on November 23, 1978, which was overheard by Dwyer. In that conversation, Petitioner admitted his participation in the murders — “Don’t you know they can give us the chair for what we done?” Tr. at 639. The Illinois Supreme Court found that the uncontroverted eyewitness testimony of Thomas was sufficient to sustain Petitioner’s conviction for murder and that any error in admitting Dwyer’s testimony concerning the statement by Petitioner’s brother was harmless. Gaines, 58 Ill.Dec. at 807, 430 N.E.2d at 1058. We agree with the conclusions of the Illinois Supreme Court for the reasons stated above. D. Eavesdropping (Claim L) As set forth above, Dwyer testified at trial that he had received the consent of Petitioner’s mother to listen on an extension telephone to a conversation between Petitioner and his mother. Dwyer stayed on the line after this conversation ended, and then also overheard a conversation between Petitioner and his brother, Michael. In these conversations, Petitioner admitted his participation in the murders, and Dwyer testified as to the contents of these conversations over counsel’s objection that Dwyer had engaged in illegal eavesdropping. See Tr. at 636. Petitioner contends that the admission of this testimony into evidence deprived Petitioner of his rights under the fourth amendment and Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. The parties dispute whether Petitioner has committed a procedural default with respect to these claims. We need not decide whether the claims are barred by procedural default, however, as we conclude in any event that neither the fourth amendment claim nor the Title III claim is cognizable on habeas review. With respect to the fourth amendment claim, the Supreme Court held in Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976), that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Petitioner concedes that he did not rely upon the fourth amendment (or on Title III) in his pretrial motion to suppress, but instead limited his argument to showing violations of the Illinois eavesdropping statute, Ill.Rev.Stat. ch. 38, § 14-1 et seq., and the Illinois Constitution. See Pet.App.Exh. JJ. He apparently takes the rather remarkable position that because he did not raise a fourth amendment claim in his pretrial suppression motion, he never received a hearing on the claim in the state trial court, and that since he never received a hearing on his fourth amendment claim in the state trial court, his assertion of that claim in this court is not barred by Powell. See Pet.Br., Sept. 19, 1986, at 120. This “logic” is simply untenable. The Court in Powell did not hold, as Petitioner implies, that a petitioner is entitled to have his fourth amendment claim reviewed by a federal habeas court whenever the state court did not hold a hearing on the claim. Rather, the Court held that a state prisoner may not be granted federal habeas corpus relief on the basis of a fourth amendment violation when the State has provided the opportunity for full and fair litigation of that claim. Petitioner is hardly in a position to complain that the State did not provide him with such an opportunity, given the fact that Petitioner did not even raise a fourth amendment claim in his pretrial motion, let alone seek an evidentiary hearing or otherwise request an opportunity to litigate such a claim. The State did not fail to provide Petitioner with an opportunity for full and fair litigation of a fourth amendment claim; the undeniable fact is that the State did not hold a hearing on Petitioner’s fourth amendment claim because Petitioner never asked for one or in any way attempted to make a showing that he was entitled to one. Powell thus applies to this case. With respect to the Title III claim, the Seventh Circuit has made clear that because a violation of that federal statute is neither constitutional nor jurisdictional, it is cognizable on habeas review only if it resulted in “a ‘complete miscarriage of justice’ or in a proceeding ‘inconsistent with the rudimentary demands of fair procedure.’ ” Hussong v. Warden, 623 F.2d 1185, 1190 (7th Cir.1980) (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979)). As we indicated above, Petitioner is in a poor position at this point to argue that the violation resulted in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Nor are we persuaded that the violation, assuming for purposes of our decision that there is one, resulted in a “complete miscarriage of justice.” As the Seventh Circuit noted in Hussong: Although Hussong has alleged a substantive violation of federal law, the fact is that he was convicted on the basis of qualitatively unimpaired evidence — even though it may have been tainted because of procedural irregularities____ This court has noted the Supreme Court’s observation that evidence obtained in violation of search and seizure law is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant____ Thus, we have no reason to think that Hussong was not convicted on the basis of probative and reliable evidence, even if that evidence was wrongfully admitted. In short, there is nothing in the record to indicate that Hussong is not guilty of the crime for which he was convicted. 623 F.2d at 1191 (citations omitted). This case similarly presents no indication that Petitioner is not guilty of the murders for which he was convicted. See Gaines, 58 Ill.Dec. at 798, 430 N.E.2d at 1049 (“Except with respect to the charges of armed robbery of Thomas and Davis no claim is made that the defendant’s guilt was not proved beyond a reasonable doubt.”). Thus, we can find no basic injustice in his current incarceration, and conclude that although his claim might present an issue for a court on direct appeal, it does not rise to the level of injustice that would justify habeas review. II. Sentencing Errors Petitioner argues that his constitutional rights were violated in a variety of ways at his sentencing hearing. We agree with Petitioner’s claim that he did not receive effective assistance of counsel at that hearing. Accordingly, we conclude on this basis that Petitioner is entitled to be resentenced, and we do not reach his additional claims of error at the sentencing hearing. Ineffective Assistance of Counsel (Claim A) Petitioner argues that his sixth amendment right to counsel was violated, in essence because his defense counsel, Mr. Carl Walsh, did not subject the State’s case against him to any meaningful adversarial testing. Petitioner’s attack on Mr. Walsh’s representation is made on several fronts. He argues primarily that Mr. Walsh conducted no meaningful investigation to determine the existence of mitigating evidence, and presented no evidence in mitigation at the sentencing hearing despite the fact that a substantial amount of such evidence existed. Petitioner contends that this failure constitutes both per se and actual ineffective assistance of counsel. Petitioner further maintains that Mr. Walsh failed to conduct any meaningful cross-examination of any of the State’s witnesses; that counsel failed to object to several misleading or erroneous statements of the law by both the prosecutor and the trial judge; and finally, that Mr. Walsh failed to give any meaningful, much less persuasive, opening or closing statement at the sentencing hearing. We conclude that Mr. Walsh’s performance, considered in its totality, was actually ineffective; accordingly, we do not reach Petitioner’s broader argument of per se ineffectiveness. As a preliminary matter, the State argues that Petitioner committed a procedural. default by failing to present the available mitigating evidence to the state courts, and thus Petitioner has waived his opportunity to present the factual basis for his claim in this court. The State acknowledges that this “ ‘factual default’ theory ... is not supported by any explicit holding of the United States Supreme Court or the Seventh Circuit,” Resp. Letter to Court, Feb. 17, 1987, at 6, but argues nonetheless that we should adopt such a principle in this case, “for a contrary conclusion means that [this court] would be entitled to assess constitutional claims, and facts supporting those claims, even though the Supreme Court of Illinois, through no fault of its own, was never afforded a fair opportunity to do likewise.” Id. We are not persuaded by the State’s argument. The State does not deny that Petitioner has raised his claim of ineffective assistance of counsel at every available opportunity. See Gaines, 85 Ill.Dec. at 278, 473 N.E.2d at 875 (Illinois Supreme Court found ineffective assistance claim not waived). The State contends only that Petitioner failed to present the factual support for his claim to the state courts. This distinction, we believe, renders a procedural default analysis inapplicable. Petitioner simply did not default on the claim; he made the claim but failed to prove it. Under these circumstances, the Supreme Court has made clear that we have the power to take evidence on the claim in this court. In Townsend v. Sain, 372 U.S. 293, 309, 83 S.Ct. 745, 755, 9 L.Ed.2d 770 (1963), the Court noted that “[t]he problem of the power and duty of federal judges, on habeas corpus, to hold evidentiary hearings— that is, to try issues of fact anew — is a recurring one.” (footnote omitted). The court then resolved the issue, stating: In construing the mandate of Congress, so plainly designed to afford a trial-type proceeding in federal court for state prisoners aggrieved by unconstitutional detentions, this Court has consistently upheld the power of the federal courts on habeas corpus to take evidence relevant to claims of such detention____ The rulé could not be otherwise. The whole history of the writ — its unique development — refutes a construction of the federal courts’ habeas corpus powers that would assimilate their task to that of courts of appellate review. The function on habeas is different. It is to test by way of an original civil proceeding, independent of the normal channels of review of criminal judgments, the very gravest allegations____ The language of Congress, the history of the writ, the decisions of this Court, all make clear that the power of inquiry on federal habeas corpus is plenary. Therefore, where an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew. Id. at 311-12, 83 S.Ct. at 756-57. The State does not argue that this precedent from the Supreme Court is inapplicable to the case before us; in fact, the State does not address this precedent at all. That a federal court has such power does not mean that it should exercise that power in every case. Although we disagree with the State that the issue presented raises a question of procedural default, we certainly appreciate the State’s concern that principles of comity be considered. The State’s point that the facts in support of Petitioner’s ineffective assistance claim were not presented on appeal or in the petition for post-conviction relief is well taken, and many courts have recognized that under those circumstances the federal court should not address the claim, not because the claim or evidence is barred by procedural default, but rather because the petitioner has not exhausted his available state court remedies. For example, in Rodriguez v. McKaskle, 724 F.2d 463 (5th Cir.), cert. denied, 469 U.S. 1039, 105 S.Ct. 520, 83 L.Ed.2d 408 (1984), the court explained that under 28 U.S.C. § 2254(b), a state prisoner must exhaust all available state remedies before coming to federal court, and further explained that to have exhausted his state remedies, a petitioner must have “fairly presented” the substance of his claims to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Generally, the Rodriguez court concluded, the exhaustion requirement is not satisfied if a petitioner presents an entirely new set of facts to the federal court. See Rodriguez, 724 F.2d at 466. Similarly, the court in Sampson v. Love, 782 F.2d 53, 55-57 (6th Cir.), cert. denied, — U.S. —, 107 S.Ct. 159, 93 L.Ed.2d 98 (1986), held that when the evidence presented in conjunction with a federal habeas petition places the petitioner’s claim in a significantly différent posture than that at the state level, the state court should be given the opportunity to consider the claim in that posture. See also Stranghoener v. Black, 720 F.2d 1005, 1007 (8th Cir.1983) (“Based on the Court’s reasoning in Picard, we hold that a federal claim is not ‘fairly presented’ to the state courts when factual allegations significantly affecting the determination of that claim are raised for the first time in federal court.”); Vela v. Estelle, 708 F.2d 954, 958 (5th Cir.1983), cert. denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984); Hudson v. Rushen, 686 F.2d 826, 830 (9th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1896, 77 L.Ed.2d 285 (1983); Anderson v. Casscles, 531 F.2d 682, 684 (2d Cir.1976); Johnson v. United States District Court, 519 F.2d 738, 740 (8th Cir.1975). The exhaustion requirement serves to “protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). Thus; the exhaustion requirement provides the state courts the first opportunity to consider claims and, if those claims are meritorious, to redress violations of constitutional rights of state prisoners. See Sampson, 782 F.2d at 55. Given the function of the exhaustion requirement, it is quite understandable that federal courts have been reluctant to consider claims that, although raised below, are significantly changed at the federal level because of the introduction of new evidence, often, as in this case, the very evidence the state courts found lacking. See Gaines, 85 Ill.Dec. at 279, 473 N.E.2d at 876. Petitioner in this case was dearly aware of his obligation to exhaust his available state court remedies. In November 1985, after his post-conviction appeals were completed but before the mandate had issued, Petitioner filed a motion in the Illinois Supreme Court for a stay of execution to permit him to amend his post-conviction petition or, in the alternative, to file a second petition. As an exhibit to that motion, Petitioner attached all of the evidence he now presents to this court. Petitioner expressly pointed out that he was filing the motion in order to fulfill his obligation to exhaust his available state court remedies, stating: By this motion to amend, petitioner seeks to assure that this Court has a full and fair opportunity to consider this newly-discovered ... evidence. Under Rose v. Lundy, ... this Court should be given “the first opportunity to review all claims of constitutional error.” ... [A]s a matter of sound judicial administration, this Court should be given this opportunity to reconsider certain claims in light of the newly discovered evidence. Resp.Exh. K at 2, 20. Petitioner urged the Illinois Supreme Court to grant a stay and to remand the case for an evidentiary hearing on Petitioner’s ineffective assistance claim. In an order dated December 10,1985, the Illinois Supreme Court summarily denied Petitioner’s motion to amend his petition. The court granted the motion to stay .issuance of the mandate and Petitioner’s execution “provided that the appellant shall file a petition for a writ of Federal habeas corpus on or prior to December 18, 1985, and provided further that the appellant shall on or prior to December 26, 1985, file with the clerk of this court a certification that he has filed said petition for a writ of habeas corpus and a copy of said petition.” Resp.Exh. L. The Illinois Supreme Court’s order makes quite clear that Petitioner’s day in state court was over, and that if Petitioner wished to contest the action taken against him any further, he must proceed, and proceed quickly, in federal court. The exhaustion requirement presupposes that an available state court remedy exists. In view of Petitioner’s attempt to place before the Illinois Supreme Court the evidence he currently presses in this court, and in further view of the Illinois Supreme Court’s denial of that request and its granting Petitioner only eight additional days in which to file a habeas petition in federal court or else lose his stay, there can be no doubt that Petitioner had no remaining available state court remedies, and that any further attempts to proceed in the state courts would have been futile (and perhaps fatal). See Perry v. Fairman, 702 F.2d 119 (7th Cir.1983); United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir.1974). Under these circumstances, and given the magnitude of Petitioner’s constitutional claim, we conclude that it is appropriate for us to consider the merits of Petitioner’s ineffective assistance claim, taking into account the evidence he has supplied. See Townsend, 372 U.S. at 318, 83 S.Ct. at 760. Accordingly, we proceed to the merits. The analysis of Petitioner’s claim of ineffective assistance initially requires an understanding of the basic principles governing the adjudication of this constitutional claim, as well as the state law governing Petitioner’s sentencing hearing. Thus, we begin with the necessary background. The standard for deciding whether a claim of actual ineffective assistance of counsel rises to the level of a constitutional deprivation was set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Noting that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result,” id. at 686, 104 S.Ct. at 2064, the Court held: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687, 104 S.Ct. at 2064. In announcing this standard, the Court made clear that “[¿judicial scrutiny of counsel’s performance must be highly deferential,” id. at 689, 104 S.Ct. at 2065, and that “every effort [mustj be made to eliminate the distorting effects of hindsight.” Id. Thus, with respect to the performance component, the Court stated that “the defendant must show that counsel’s representation fell below an objective standard of reasonableness,” id. at 688, 104 S.Ct. at 2064, and that a reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). With respect to the prejudice component, the Court indicated that because the purpose of the Sixth Amendment is to assure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. See id. at 691-92, 104 S.Ct. at 2066-67. To make this showing of prejudice, “[tjhe 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.” 7cZ. at 694, 104 S.Ct. . at 2068. It is with this framework from the Supreme Court that we undertake a review of Petitioner’s claim. A decision whether the failure to investigate or present mitigating evidence at Petitioner’s sentencing hearing constitutes ineffective assistance requires an understanding of the role mitigation plays under the Illinois death penalty statute, Ill.Rev. Stat. ch. 38, § 9-1. The statute first defines the crime of murder. It then.elaborately explains the nature of the sentencing process. Upon the defendant’s conviction, the State may request a separate sentencing hearing in order that a determination may be made as to whether the death penalty shall be imposed. § 9-l(d). The hearing takes place either before the court or before a jury, generally at the option of the defendant. This hearing is conducted in two stages. At the first stage, the statute requires the State under subsection (b) to establish that the defendant is eligible for the death penalty by proving beyond a reasonable doubt that the defendant has been found guilty of murder, that he had attained the age of 18 at the time of the commission of the crime, and that at least one of the statutory aggravating factors listed in subsection (b).exists. § 9 — 1(e), (f). If the sentencer finds that these statutory requirements have been proved beyond a reasonable doubt, the proceedings then move into the second and final stage, at which the sentencer determines whether the death penalty should be imposed upon this particular eligible defendant. ■ It is at this second stage that mitigating information becomes ■ important. At the second stage, information relevant to any other aggravating or any mitigating factors may be presented by either the State or the defendant without regard to the rules ordinarily governing the admission of evidence at criminal trials. § 9-1(e). The statute provides examples of mitigating factors, but indicates that the list is not exhaustive. § 9-l(c). At the conclusion of this final stage, the jury determines whether the death penalty is to be imposed. In making that determination, the sentencer is required to consider all relevant aggravating and mitigating factors. Under § 9 — 1(g): If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death. Unless the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections. See also § 9-l(h) (same procedure when court is sentencer). Thus, the Illinois death penalty statute expressly provides for the presentation of information relevant to any mitigating factors, see § 9 — 1(c); People v. Johnson, 114 Ill.2d 170, 102 Ill.Dec. 342, 359, 499 N.E.2d 1355, 1372 (1986), and requires the sentencer to consider these mitigating factors as part of its deliberation. Only if the sentencer unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death penalty is the sentencer empowered to return a death sentence. However, in those cases in which the sentencer does make this finding, the court must sentence the defendant to death. This review of the statutory scheme makes clear that mitigating factors pla,y an extremely important role in the determination whether a defendant shall live or die. As we earlier noted, Petitioner’s sentence was determined by the same jury that determined his guilt. At the first stage of the sentencing hearing, the State proved that Petitioner was at least 18 years old at the time of the commission of the murders and that he had been convicted of two murders in the course of an armed robbery. Petitioner presented no evidence at that phase,, and the jury found Petitioner eligible for the death penalty. At the second stage, the State presented five witnesses in aggravation. The first was Paulette Rubio, who testified that she was a school teacher and that in March 1976, while she was walking to a teacher’s meeting, three teenagers, including Petitioner, knocked her down and took her purse. Ms. Rubio testified that she was visibly pregnant at the time. She further indicated that she signed a complaint against Petitioner and testified against him at his trial, at which he was found guilty. The State next called Virginia (“Lala”) Harris, who testified that she had been dating Petitioner for a period of months before the murders. Ms. Harris gave damaging testimony, indicating, for example, that she had asked Petitioner why he had killed the two victims and he had responded that “he wouldn’t have killed them” and that “none of this would have happened” if she had not left him. See Tr. at 871. She also testified that Petitioner made threatening remarks to her, both by telephone and by letter. See Tr. at 873-75. On cross-examination, Mr. Walsh’s only questions to Ms. Harris referred to the date on one of the letters introduced by the State. The State then called Michelle Munson, a friend of Ms. Harris, who related a conversation Munson had had with Petitioner a few days after the murders. Munson testified that Petitioner threatened Harris, and further testified that Petitioner also stated: “Two people are dead. One more he wouldn’t get no more time than what he’ll get anyway.” Tr. at 890. Walsh’s cross-examination was limited to an inquiry as to whether Ms. Munson could recognize Petitioner’s voice. Munson remained steadfast in her identification of Petitioner’s voice. The State’s final two witnesses were deputy sheriffs who were responsible for security at the courthouse. The deputy sheriffs testified that their responsibilities included searching prisoners, maintaining building security, and maintaining order in the courtroom. Deputy Sheriff Fitzgerald testified that on one occasion Petitioner swung his fists at him when Fitzgerald removed his handcuffs and that on another occasion, with Deputy Sheriff Bergquist also present, Petitioner threatened to kill one of the deputy sheriffs. See Tr. at 899. Deputy Sheriff Bergquist corroborated this incident, Tr. at 902, and further testified that on yet another occasion, Bergquist searched Petitioner before bringing him into the courtroom and found a steel pick, two hack saw.blades in the bottom of Petitioner’s shoes, and a ten dollar bill. On cross-examination, Petitioner’s counsel asked the deputy sheriffs if they had been in the courtroom during the trial and if they had taken oaths as deputy bailiffs for the jury. Both responded affirmatively to both questions. The State then rested. Given the evidence presented by the State at the guilt phase and in aggravation at the sentencing phase, there could be little doubt at that point in the proceedings that in the absence of mitigating evidence, the death penalty would almost certainly be imposed. Petitioner had been convicted of a double murder in the course of an armed robbery, and thus he was twice eligible for the death penalty. He was also convicted of attempting to kill yet a third person. The evidence at the trial established no conceivable justification for the murders; Petitioner had, through an apparently utterly senseless act, taken the lives of two people and tried to take a third. Moreover, the State’s evidence at the trial and sentencing hearing revealed, among other things, that having already killed two people, Petitioner no longer feared the consequences of additional murders, and had threatened to kill Ms. Harris; had threatened his brother, see Tr. at 639; and had also threatened to kill one of the deputy sheriffs. Thus, the State quite successfully portrayed Petitioner as a cold, inhuman killer. Viewed at the time of the hearing, the evidence in the record made the imposition of the death penalty a strong probability in the absence of mitigating evidence. Mr. Walsh, during the evidentiary hearing before this court, testified that he came to this very conclusion himself at the time of Petitioner’s sentencing hearing.. For example, Walsh testified at the evidentiary hearing that: A. In answer to your question, I have to say that it was discussed with Mr. Gaines, the fact that if no testimony were offered to the jury and if he was not given an opportunity either to make a statement in the- nature of a statement under the right of allocution or take the stand himself, if nothing was presented to the jury I know I thoroughly discussed with him that the probable only result that would be obtained was that the jury would impose the death penalty. Q. So you believed wh