Full opinion text
ARONOVITZ, District Judge. THIS CAUSE came before the Court upon the petitioner’s, Paul William Scott, petition for writ of habeas corpus, an amended petition, and his motion to amend the amended petition to add an Adams claim. THE COURT has received successive memoranda of law from both parties, held numerous hearings in this matter, most recently holding two oral arguments on the issues raised in the amended petition, has considered the petition and the record, and being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED that the petition and amended petition be and the same are hereby DENIED, and this action is DISMISSED. Furthermore, the petitioner’s motion to amend the amended petition to add an Adams claim is hereby DENIED. No basis for federal habeas relief has been established as to any issue raised by Scott in this amended petition. Consequently, the stay of execution previously entered by the Court on January 10, 1984 be, and the same is, hereby LIFTED, effective 10 days from the date of this Order. This opinion contains six major sections. The first is “Factual Background,” which begins below. Second is “Procedural Background,” beginning infra at page 1495. Third is “Exhaustion and Procedural Default,” beginning infra at page 1496. Fourth is “Application of Procedural Bar Analysis,” beginning infra at page 1498. Fifth is “Conviction Claims,” beginning infra at page 1500. Sixth is “Sentencing Claims,” beginning infra at page 1508. I. Factual Background Paul William Scott is under sentence of death for the murder of James Alessi in December, 1978. The jury returned a general verdict of guilty after being instructed on both premeditated murder and felony murder. After the jury recommended the death penalty, the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, issued its written findings of fact and imposed a sentence of death. The Circuit Court’s sentencing order contains certain factual findings relevant to the manner of Alessi’s murder. In addition, the Supreme Court of Florida has . reviewed this case on three different occasions, therein making numerous factual findings based on the trial record. Scott only takes exception to certain findings relating to whether Scott himself committed Alessi’s murder with premeditation. Otherwise, Scott does not challenge or contest the Florida’s description of the murder scene and other relevant factors, and this Court will rely upon these findings to present the circumstances of Alessi’s murder. See Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). On the evening of Alessi’s murder, Scott and Richard Kondian, his friend and coperpetrator, told Charles Soutullo of their plan to rob and murder Alessi. Scott and Kondian also asked Soutullo to join them in their plan, but Soutullo declined the offer. The jury was apprised as to Soutullo’s reputation for dishonesty and his past crimes, including several felony arrests and convictions. Alessi picked up Scott and Kondian in the late evening, and the three drove to Alessi’s father’s house where they borrowed a patio umbrella and a station wagon. The umbrella was later found in Alessi’s yard. The next morning Alessi’s nude body was found in his home, his hands and feet tightly bound with electrical cord and telephone wire. Medical evidence indicated that Alessi was still alive when he was tied up. Alessi had received six blows to the head with a blunt instrument, one of which caused a compressed fracture of his skull. The entire house showed clear signs of a violent struggle which moved from room to room. Scott’s fingerprints were found on various items in the house, including a knife used to cut the cords with which Alessi was bound, and on the neck of a broken vase. After the murder, Scott and Kondian used a key to enter Alessi’s flower and jewelry shop, taking most of the gold in the shop. They also stole Alessi’s automobile. About one month later, Scott was arrested in Sacramento, California. In his hotel room, police found a golden bear charm, similar to charms which Alessi owned, one of which Alessi wore and another one which was in Alessi’s shop. In addition to the testimony at trial, the record contains testimony Scott gave before the Florida Probation and Parole Commission on his clemency application. In this testimony, Scott admitted that he and Kondian went to Alessi’s home in order to rob him. Kondian distracted Alessi by having sex with him on the couch while Scott searched for items to steal. After a fight erupted between Alessi and Kondian, Scott interceded by breaking a vase over Alessi’s head. Although Kondian was smashing a paperweight against Alessi’s’s head, Alessi gained the upper hand and began to win the fight. Scott then smashed a chair across Alessi’s back, knocking him to the ground. Scott cut cords with a knife and tied Alessi to a chair. But he says that after Kondian again began to beat Alessi after he was tied up, Scott ran out the back patio door. II. Procedural Background Scott challenges both his conviction and sentence through this habeas petition. Scott filed this petition on June 3, 1983, after the Supreme Court of Florida had already affirmed his conviction and sentence both on direct appeal, and subsequently, in a state habeas corpus petition. See Scott v. Wainwright, 433 So.2d 974 (Fla.1983); and Scott v. State, 411 So.2d 866 (Fla.1982). The State of Florida had scheduled Scott’s execution on June 7, 1983, but this Court entered a stay of execution on the same day Scott filed this petition. The next day, on June 8, 1983 Scott filed an amended petition for writ of habeas corpus. The original petition raised 29 discrete issues and the recent amendment added two others. The respondent had moved to dismiss the amended petition on the grounds that it presented a mixed petition containing both exhausted and unexhausted claims under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The Court rejected this motion on August 29, 1983, holding that Scott had exhausted all claims raised in his amended petition, including certain claims which he had raised in his Florida habeas petition as forming the basis of his claim of ineffective assistance of appellate counsel. This case proceeded on its merits, but on December 8, 1983 Scott filed a motion for leave to amend/supplement petition for writ of habeas corpus. This was only four days before the Court held what was noticed as the final hearing in this matter. Relying on the claims raised in this supplemental motion, on December 21,1983 Scott moved at the final hearing to hold this case in abeyance pending his presentment to the Florida courts of admittedly unexhausted claims. On January 10, 1984, the Court entered an order staying these proceedings, without objection from the state, which required the petitioner to present to the state courts “each and every and all claims not previously heretofore presented to the Florida state courts.” The Court granted Scott’s motion because it found — and the state agreed — that Scott had not previously raised certain claims raised in his supplemental motion to amend the petition filed December 8, 1983. By ordering the petitioner to present all claims to the Florida courts, the Court specifically advised and warned Scott that “[a]ny such claims not so presented shall be deemed to have been waived.” By its terms, the Court’s Order did not only apply to those particular claims which the Court found to have been unexhausted, but instead required the petitioner to present all unexhausted claims during the stay, whether or not raised in his amended petition. Pursuant to the Court’s stay order, the petitioner did return to the Florida courts. On July 23, 1986, the Circuit Court Judge rejected his motion to vacate judgment and/or sentence. The Supreme Court of Florida affirmed this order on August 20, 1987. Scott v. State, 513 So.2d 653 (Fla. 1987). Scott filed a further amendment to his amended petition in this Court on December 11, 1987 which raised two additional claims. The first was that Scott’s trial counsel was constitutionally ineffective, and the second was that the Supreme Court of Florida itself denied Scott Due Process of law by considering extra-record materials. The state filed its response to this amendment on December 31, 1987. On February 19, 1988, the Court held oral argument on the petition as it stood in its final form, including all amendments and supplements. At the February 19, 1988 hearing, the Court identified several matters of particular interest and allowed the parties to file supplemental memoranda of law, but only the state filed such a supplement on March 7, 1988. On March 18, 1988 Scott filed a motion to stay these proceedings and present to the Florida courts a constitutional claim previously unexhausted and not contained in his amended petition. He based this request on the Supreme Court’s decision to review the case of Adams v. Dugger, 804 F.2d 1526 (11th Cir.1986), amended on reh’g, 816 F.2d 1493 (11th Cir.1987), cert. granted, — U.S.-, 108 S.Ct. 1106, 99 L.Ed.2d 267 (1988). In Adams, the court held that a habeas petitioner was not procedurally barred from a pursuing a claim under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), because Caldwell was a novel change in the law which was unavailable at the time of the petitioner’s direct appeal. In Caldwell, the Court held that a prosecutor’s argument, which led the jury to believe that responsibility for determining the appropriateness of the death sentence rested elsewhere, violated the Eighth Amendment. This Court rejected Scott’s motion on April 5, 1988. The United States Supreme Court had issued the Caldwell opinion over a year before the state Circuit Court denied Scott’s request to vacate judgment and/or sentence, and over two years before the Supreme Court of Florida issued its opinion affirming the Circuit Court. The Caldwell decision was decided on June 11, 1985, the Circuit Court Order was entered on July 23,1986, and the Supreme Court of Florida affirmed on August 20, 1987. This timing sequence is critical because the petitioner was required pursuant to the Court’s stay order to present all unexhausted claims to the state courts, yet he admittedly failed to present a Caldwell claim in his then-pending state proceedings. This Court concluded that a Caldwell claim was clearly available to Scott well before the Circuit Court rendered its opinion, and that even Adams itself was available during the pendency on the Court’s stay. The Eleventh Circuit decided Adams after the Circuit Court order but before the Supreme Court of Florida's affirmance. Consequently, even if Adams truly worked a substantial modification of Caldwell, the petitioner could have moved the Supreme Court of Florida to allow him to present an Adams claim before the Circuit Court. By failing to do so, the petitioner violated the Court’s stay order. Consequently, the Court enforced its previous ruling that any such unexhausted claims “shall be deemed to have been waived,” and on April 5, 1988 denied Scott’s motion to exhaust an Adams claim and for a stay. Finally, Scott moved on April 11, 1988 for leave to amend this petition in order to raise the Adams issue herein on the grounds that exhaustion of state remedies would be futile. The Court held final oral argument on April 15, 1988, and the focus of this hearing was on the matters raised in the respondent’s supplemental memorandum. Scott, of course, did not waive or abandon any claims or matters raised in his amended petition, even though he did not file a supplemental memorandum other than his motion to exhaust an Adams claim. The Court acknowledged that it did not consider any of petitioner’s claims to have been waived simply because Scott declined the Court’s invitation to file a supplemental memorandum. III. Exhaustion and Procedural Default The fundamental requirement that a federal habeas petitioner first exhaust and preserve his constitutional claims in the state courts requires a careful and detailed examination of the record. The object of this examination is to determine which of the claims in the federal petition are properly preserved for adjudication on their merits, and which, if any, are procedurally barred from being considered on the merits. As this is a threshold issue common to all the claims raised herein, it is helpful to provide a general overview and application of the procedural default doctrine before turning to the claims seriatim. A petitioner exhausts federal constitutional claims by fairly presenting them to the state courts before bringing his federal petition for writ of habeas corpus. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Where a federal petition contains both exhausted and unexhausted claims, the court must dismiss the petition. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Because exhaustion is a prerequisite to a federal habeas petition, it would follow that the state courts must first have either addressed each claim on the merits or dedined to reach its merits by invoking the doctrine of procedural default. Given this dichotomy, it would appear that a federal court could only invoke procedural bar where the state courts have themselves already done so, because “[w]here ... the state court might have invoked a procedural bar but has provided no indication that it did so, ‘a federal court must address the merits’ of the petitioner’s claim.” Oliver v. Wainwright, 795 F.2d 1524, 1528-29 (11th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1380, 94 L.Ed.2d 694 (1987). If the state court does not “indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.” County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). But in fact, there is no illogic to the result that a federal habeas court can entertain a petition containing claims which the state courts have not passed upon, either on the merits or by invocation of procedural bar. The requirement that a petitioner exhaust state remedies “refers only to remedies still available at the time of the federal petition.” Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 1570, n. 28, 71 L.Ed.2d 783 (emphasis added). Where a defendant has failed to preserve error in the state courts and state court collateral relief is unavailable at the time of the federal petition, any claims he might have raised are considered both exhausted and proeedurally barred. Id. at 125-130, 102 S.Ct. at 1570-1573. A federal habeas court can therefore invoke procedural bar although the state courts have not themselves been offered the opportunity to consider the claim, let alone to invoke procedural bar. “[T]he considerations of comity that underlie the procedural bar doctrine require federal habeas courts to honor state procedural rules, and not only state courts’ procedural rulings.” Lindsey v. Smith, 820 F.2d 1137, 1143 (11th Cir.1987). See also Smith v. Dugger, 840 F.2d 787 (11th Cir.1988). In sum, a federal habeas court can invoke the doctrine of procedural bar where the state courts have themselves refused to address the merits due to a procedural default, or where the petitioner has failed to raise a claim in state court which would be proeedurally barred as of the time of the federal petition. In either case, the federal court must honor the procedural bar absent the petitioner’s demonstration of cause and prejudice for the procedural default. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Sykes, the Supreme Court found that the petitioner’s failure to make a contemporaneous objection to the admission of his confession at trial barred the federal courts from considering his argument that he had not understood his Miranda rights. Procedural bar also applies to a petitioner’s failure to have raised a matter on direct appeal of his conviction and sentence. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Finally, it applies to matters which a “state habeas court refused to hear because the petitioner did not present it seasonably to that court.” Presnell v. Kemp, 835 F.2d 1567 (11th Cir. 1988). A petitioner may establish cause for a particular procedural default by showing “that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray, 106 S.Ct. at 2646. “Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel, ... or that ‘some interference by officials’ ... made compliance impracticable, would constitute cause under this standard.” Id. In addition, constitutionally ineffective assistance of counsel is a cause for procedural default. Id. But “[s]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective [there is] no inequity in requiring him to bear the risk of attorney error that results in procedural default.” Id. at 2645-46. Yet the exhaustion requirement “generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.” Id. at 2646. IV. Application of Procedural Bar Analysis This overview of the relationship between exhaustion of available state remedies and the doctrine of procedural bar now sets the stage for an initial analysis of which claims in Scott’s amended petition are viable. Because the Florida courts only affirmatively invoked procedural bar with respect to Scott’s application for writ of error coram nobis, the doctrine is centrally relevant in this case to any claims contained in the federal petition which Scott never presented to the Florida courts. See Scott v. Wainwright, 433 So.2d 974 (Fla.1983). In addition, it is relevant to his pending motion to amend the petition to add an Adams claim. “When the State answers a habeas corpus petition, it has a duty to advise the District Court whether the prisoner has, in fact, exhausted all available state remedies.” Granberry v. Greer, — U.S.-, -, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987). Although the respondent had originally contended that only ten claims were exhausted, at the oral argument on his motion to dismiss he conceded that the only arguably unexhausted claims were those which Scott raised only as forming the basis of his ineffective assistance of appellate counsel claim. Consequently, this group of claims presents the greatest issue with respect to procedural preservation. The Supreme Court of Florida rejected Scott’s petition for writ of habeas corpus on June 3,1983. Scott had argued that his appellate counsel was ineffective for failing to raise a number of alleged errors at trial. While he did argue that the failure to raise these alleged errors demonstrated appellate counsel’s ineffectiveness, he did not directly raise each of these claims individually and on their merits, apart from forming the basis of his ineffectiveness claim. The respondent argued that these particular claims were not “fairly presented” to the Supreme Court of Florida on their merits, and that they were therefore unexhausted. The Court, however, rejected the respondent’s argument that these particular claims were unexhausted on their merits, due to the approach the Supreme Court of Florida took to dispose of Scott’s ineffective assistance of appellate counsel claim. “We find that none of the arguments now made by Scott would have constituted reversible error had they been raised on direct appeal. In fact, most of these claims would have been frivolous.” Scott v. Wainwright, 433 So.2d 974, 975 (Fla.1983). The Court concluded that the merits of each of these claims was exhausted because the state court itself chose to address the merits, and because “the underlying facts were presented and argument regarding a federal constitutional violation made.” Alternatively, the Court ruled that given the Supreme Court of Florida’s dim view of the merits of these underlying claims, a return to the state courts to address these matters would be futile. See Howard v. Davis, 815 F.2d 1429 (11th Cir. 1987), cert. denied, — U.S.-, 108 S.Ct. 184, 98 L.Ed.2d 136 (1987). The Supreme Court of Florida cited these alleged errors in the footnote to its opinion, and Scott has raised most of these claims on the merits in this petition. See Scott, 433 So.2d at 975 n.*. The un-appealed alleged trial court errors which Scott now raises are: (1) precluding defense counsel from making an opening statement; (2) allowing the state’s “surprise” presentation of Richard Kondian during trial; (3) precluding cross-examination of the witness who identified Kondian; (4) finding non-statutory aggravating circumstances in sentencing; (5) allowing the state to cross-examine psychologist Brad Fisher; (6) denying a motion for mistrial following a witness referring to Scott as an inmate; and (7) overruling trial counsel's objection to the prosecutor’s remarks regarding Soutullo’s cooperation with the police. Having concluded in the August 29, 1983 Order that Scott had exhausted the merits of these claims, the question now presented is whether Scott has procedurally defaulted on them. The respondent specifically argues in his supplemental brief dated March 7, 1988 that Scott has defaulted on his claim that the trial court improperly considered non-statutory aggravating circumstances. As this claim arose in the context of Scott’s ineffective assistance of appellate counsel claim in his state habeas petition, resolution of the state’s procedural default challenge to this claim necessarily encompasses the other claims which formed the basis of the ineffectiveness challenge. Under Oliver, a petitioner does not procedurally default where the state courts reach the merits even though they conceivably could have invoked procedural bar. When “the state courts have not relied exclusively upon [petitioner’s] procedural default Wainwright v. Sykes does not prevent federal habeas review.” Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir.1981). Under Lindsey, a petitioner procedurally defaults when he has failed to raise a claim in state court which is barred at the time of the federal petition. The question presented is whether the Supreme Court of Florida’s disposition of Scott’s claims underlying his ineffective assistance of appellate counsel claim place these claims in the Oliver category or the Lindsey category. But as Lindsey default is predicated upon a finding that the petitioner has not fairly presented his claims to the state courts, the Court’s earlier ruling that Scott has in fact exhausted these claims necessarily means that Lindsey default is inapplicable. The procedural status of the merits of Scott’s claims underlying his ineffectiveness claim are more analogous to Oliver and Thompson, where the state courts chose to address the merits of the petitioner’s constitutional claims although they could have refused to do so under the procedural bar doctrine. The difference, arguably, is that the decisions of those state courts to reach the merits was perhaps more deliberate than the summary reference made by the Supreme Court of Florida. But the Supreme Court of Florida unmistakably stated that it would have rejected each of these claims if raised on direct appeal, and even went on to label most of them “frivolous.” Certainly where a state court chooses to voice an opinion on the merits that a federal constitutional claim is frivolous, the Court cannot be prevented from making its own assessment on the merits. Where a state court chooses sua sponte to address a constitutional claim, federal court habeas review is proper unless the state court has clearly and expressly rested its decision on independent and adequate state law grounds. Caldwell v. Mississippi, 472 U.S. 320, 327-328, 105 S.Ct. 2633, 2638-39, 86 L.Ed.2d 231 (1985) (relying upon Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). Perhaps the closest analogy on point is the case of Francis v. Spraggins, 720 F.2d 1190 (11th Cir.1983), cert. denied, 470 U.S. 1059, 105 S.Ct. 1776, 84 L.Ed.2d 835 (1985). In Francis, the court held that the petitioner had exhausted a claim that trial counsel was ineffective in closing argument at the guilt/innocence phase, although the petitioner had not raised that specific basis for ineffectiveness during his state court post-conviction relief proceedings. He had, however, identified eleven other separate incidents of alleged trial counsel error. The Eleventh Circuit concluded that “where the petitioner calls the state court’s attention to ineffective assistance problems and the court examines the crucial aspect of counsel’s representation ... the petitioner may relitigate the constitutional claim in federal court.” Francis, 720 F.2d at 1193. The Francis court used a flexible and realistic framework to determine what matters were exhausted in the petitioner’s ineffective assistance of counsel claim in state court. While the court only found other specific claims of ineffective assistance to be exhausted, it is no great leap to conclude, as the Court did in denying the respondent’s motion to dismiss, that the merits of the alleged trial court errors have been fairly presented to the Florida courts. Interestingly, the Francis court also reviewed the district court’s finding that the petitioner had exhausted state remedies under the clearly erroneous standard of review. 720 F.2d at 1192. Finally, the Court’s determination that none of these claims is procedurally barred is buttressed by the obvious unfairness to Scott of a contrary holding. When the Court stayed these proceedings in 1984, it instructed Scott to present all unexhausted claims to the Florida courts. But the Court had already ruled, of course, that the merits of the alleged trial court errors underlying the ineffectiveness claim were exhausted. Given the Court’s expressed judgment on their exhaustion, Scott clearly cannot be faulted for not attempting to raise these claims in his Fla.' Rule of Crim.Pro. 3.850 proceedings following the Court’s stay Order. Thus, even assuming for the sake of argument that the Court was in error in its earlier judgment that these claims had been exhausted, Scott should not now be prejudiced by relying upon the Court’s previous ruling. In fact, the Florida courts might very well have considered these claims on their merits if Scott had presented them in his Rule 3.850 proceedings. The Supreme Court of Florida’s habeas opinion, however, certainly indicates that it would have rejected these claims. Finally, Scott has moved to amend the petition to add a claim under Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), modified on reh’g, 816 F.2d 1493 (11th Cir.1987), cert. granted, — U.S.-, 108 S.Ct. 1106, 99 L.Ed.2d 267 (1988). The respondent objects to this motion on the ground that Scott is procedurally barred from bringing an Adams claim. Indeed, in its earlier Order Denying Motion for Leave to Exhaust Adams Claim in State Courts, the Court’s reasoning specifically invoked procedural default. The Court’s April 5,1988 Order held that Scott had failed to comply with the Court’s January 10,1984 Order, which stayed these proceedings so that Scott could present “each and every and all claims not previously heretofore presented to the Florida state courts.” Subsequent to that Order, the Supreme Court of the United States decided the case of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Caldwell was issued over one year before the Circuit Court denied Scott’s motion to vacate judgment and/or sentence. Additionally, the Adams decision, which applied Caldwell to Florida’s advisory jury scheme, was decided before the Supreme Court of Florida entered its opinion affirming the circuit court order. The Court’s April 5, 1988 Order concluded that Scott’s unexplained failure to raise the Caldwell required the Court to enforce its previous warning that any claims not presented to the Florida courts during the stay “shall be deemed to have been waived.” Similarly, this failure means that Scott has procedurally defaulted on the Adams claim under Lindsey, 820 F.2d 1137, and his motion to amend the petition be, and the same is, hereby DENIED. V. Conviction Claims a. Opening Statement Scott contends that the trial court improperly prevented his trial counsel, Barrs, from making an opening statement. Scott exhausted this claim by fairly presenting it to the Supreme Court of Florida in his habeas petition, and the court rejected it on the merits. The record reveals, however, that the trial court did not prevent Barrs from making an opening statement. Rather, the court granted the state’s motion to preclude Barrs from making reference to the victim’s alleged drug use and homosexuality. Given the court’s ruling, Barrs declined to make an opening statement, and he instead accepted the court’s offer to make a statement at the beginning of the defendant’s case. The trial court based this ruling on its conclusion that in all probability the only evidence of these matters would come out if Scott testified in his defense. While Barrs did state that he expected Scott to take the stand, the court decided to review this matter at the close of the state’s case. In fact, Scott never took the stand. In addition, the court was unconvinced of the relevancy of the victim’s alleged drug use and homosexuality. Barrs acknowledged that it was not his “intention that anyone has the right to commit a crime against a person because they’re homosexual.” Barrs’ only proffer of relevancy was that “[s]uch activity was occurring at the time of the incident and no one could describe the incident without mentioning it.” As the record reveals that the trial court merely granted the state’s motion in limine, as opposed to actually preventing defense counsel from making an opening statement, the gravity of Scott’s claim of error is unmistakably lessened. A trial court clearly has the power and obligation to ensure that a party’s opening statement addresses relevant matters which will come out through the evidence at trial. In any event, the Constitution does not give a criminal defendant the right to make an opening statement. United States v. Zielie, 734 F.2d 1447, 1455 (11th Cir.1984), cert. denied, 469 U.S. 1216, 105 S.Ct. 1192, 84 L.Ed.2d 338 (1985). b. Premeditation Scott argues that the evidence of premeditation was insufficient to sustain the jury’s verdict. The jury was instructed on both felony murder and premeditation. Scott states that as the jury’s general verdict does not allow a reviewing court to determine whether the jury relied upon felony murder exclusively, the verdict must be overturned. It is true that where a conviction on a general verdict could have been based on two separate grounds, and one of those grounds is constitutionally impermissible, then reversal is mandatory. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Scott preserved this claim by raising it on direct appeal, where the Florida Supreme Court found the evidence sufficient to establish premeditation. The court specifically concluded that “[t]he manner in which the victim was murdered in itself evidences premeditation.” Scott, 411 So.2d at 868. The court based its conclusion on the circumstances of the murder. “There was a long bloody chase throughout the house, the victim was badly beaten, his hands and feet were tied while he was still alive, and he was struck on the head six times with a blunt instrument.” Id. In addition, the court understood that the jury may have accepted the testimony of Charles Soutullo, who testified that Scott and Richard Kondian had expressed an intention to rob and murder Alessi. When a federal habeas petition challenges the sufficiency of the evidence supporting his conviction, a court must conduct a “review of the record in the light most favorable to the prosecution [to determine whether] a rational factfinder could readily have found the petitioner guilty beyond a reasonable doubt____” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Smith v. White, 815 F.2d 1401 (11th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987). As the Supreme Court of Florida correctly noted, the testimony of Soutullo provided direct evidence of Scott’s premeditation, and in the light most favorable to the prosecution, the jury could have found Scott guilty of premeditated murder beyond a reasonable doubt. Following this Court’s own independent review of the record, it also finds that the jury could have found that Scott committed premeditated murder. c. Felony Murder As with the sufficiency of the evidence supporting premeditation, Scott also challenges the sufficiency of the evidence of supporting a felony murder conviction. As above, the Jackson case governs the appropriate standard of review. Scott argues that the murder took place at a different time and place than did the burglary, such that the murder was not committed by one “engaged in the perpetration” of the burglary. The Supreme Court of Florida rejected this contention on direct appeal. The court found that “there is sufficient evidence in the record to support the felony murder instructions given by the trial court,” and that there was sufficient evidence of robbery and burglary. A former business associate of Alessi, Nancy Flair, testified that on the Saturday preceding his murder, Alessi was wearing a gold teddy bear charm which he had recently purchased along with two others. Police officers discovered just such a gold bear charm in Scott’s hotel room after his arrest in California. The thrust of Scott’s present claim, however, is that the record principally addresses the burglary at Alessi’s jewelry and flower shop, where 80 to 130 pieces of jewelry were found missing after Alessi’s murder. Scott contends that there is insufficient evidence linking the shop burglary to Alessi’s murder at his home, and that consequently, Alessi’s murder was not committed in the perpetration of the shop burglary. In short, Scott’s position is that the evidence was insufficient to support a continuity of time and place between the perpetration of the shop burglary and Alessi’s murder. But resolution of this contention is unnecessary to a ruling that the evidence was sufficient to establish that the murder took place during the perpetration of a burglary. Initially, Flair’s testimony reasonably supports the conclusion that Scott took jewelry from Alessi’s person. But Scott’s own habeas petition admits to the factual basis supporting a felony murder instruction. Scott made reference to his sworn testimony to the Florida Probation and Parole Commission upon his clemency application. Relying upon that testimony, Scott novj. admits that he “agreed to go along with Kondian with the understanding that a simple larceny had been planned. While Kondian engaged in sex with Alessi, [Scott] searched for a money bag and jewelry.” Given these admissions and Flair’s testimony, this Court finds that the record supports the felony murder instruction and a jury verdict of felony murder. d. Yom Kippur Scott moved for a one day continuance of trial because Yom Kippur fell on the day jury selection was set to begin, October 1, 1979. The trial court denied the motion for continuance, and subsequently, a motion for a new trial due to the alleged error of not having granted the continuance. On direct appeal, the Supreme Court of Florida found that there was “no evidence in this case demonstrating deliberate or systematic exclusion of members of the Jewish faith and no evidence of underrepresentation on the jury panel in this case.” Scott, 411 So.2d at 868. “[T]he selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In order to establish such a Sixth Amendment violation, the defendant must show that the alleged excluded group is distinctive in the community, that the group’s representation was not fair and reasonable, and that the resulting underrepresentation resulted from systematic exclusion. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed. 2d 579 (1979). Scott focuses his attack at the trial court’s statement that “if your client was of the Jewish faith, that’s one thing — he wants to be tried by his peers; but here, he’s not of the Jewish faith.” The trial court did hold an evidentiary hearing on Scott's motion for continuance, where the jury clerk testified that she had granted all requests by Jewish people who called her office and requested to be re-scheduled due to Yom Kippur. She was unable, however, to state how many such requests her office had received and granted, although she herself granted about five requests. Finally, she had no knowledge of the religious composition of the jury pool for Scott’s trial. The record does not indicate whether any Jewish people were in fact in Scott’s jury pool. Scott’s failure to demonstrate that his jury pool was in fact defective in that it underrepresented Jewish people completely undermines his position under the Duren standard. Consequently, although the trial court misstated the law in saying that Scott’s own religious or ethnic status was relevant to the composition of the jury panel, this error was harmless in light of Scott’s failure to show that his panel actually lacked people of the Jewish faith. Finally, the court in Grech v. Wainwright, 492 F.2d 747 (5th Cir.1974), specifically upheld a trial judge’s discretion to excuse Jewish veniremen from jury service on Yom Kippur against the defendant’s Sixth Amendment challenge. e. Kondian’s Appearance Scott claims prejudicial error in the trial court’s decision to allow the state to bring Kondian before the jury. Kondian did not testify, and the state sought to present him before the jury solely in order to demonstrate that Scott was the larger of the two men. The state argued to the court mid-way through trial that “it’s becoming increasingly clear from the evidence that an attempt is being set up [by the defense] to set up Mr. Kondian as having been responsible for all or most of the conduct.” Defense counsel objected that such a defense was apparent all along, and that the state’s “surprise” presentation of Kondian was inappropriate given the state’s failure to raise this possibility at the pre-trial conference. In addition, counsel objected that Kondian had already been in jail for 10 months and that his present appearance was not probative of his physical condition at the time of the murder. The court overruled these objections and allowed the State to have a witness identify Kondian. In its order denying his petition for writ of habeas corpus, the Supreme Court of Florida rejected Scott’s argument that this “surprise” presentation was unconstitutional. Scott does not contend that the court prevented him from cross-examining Kondian. Indeed, defense counsel never requested to cross-examine Kondian. The state presented the testimony of police officer Phil Sweeting, who was asked whether he knew Kondian and whether Kondian was present in the courtroom. Officer Sweeting responded affirmatively to both questions, and then made an in-court identification of Kondian. The basis for Scott’s constitutional challenge to this identification is unclear. Scott argues that this procedure was violative of Florida’s own rules of criminal procedure, and that the state’s failure “to follow clearly applicable state precedent and procedure affecting the fact-finding process is a federal constitutional violation of due process and the right to a fair trial.” Scott cites two cases for this proposition, neither of which support it. See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Fast v. Wainwright, 439 F.2d 1162 (5th Cir.1971). A criminal defendant’s right of Due Process requires a prosecutor to disclose exculpatory evidence favorable to the defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); U.S. v. Stewart, 820 F.2d 370, 374 (11th Cir.), reh’g denied, 829 F.2d 1132 (1987). The state’s exhibition of Kondian, of course, was designed to strengthen the state’s case. Furthermore, the Sixth Amendment right of confrontation is not “a constitutionally-compelled rule of pretrial discovery.” Pennsylvania v. Ritchie, 480 U.S. 39,-, 107 S.Ct. 989, 999, 94 L.Ed. 2d 40 (1987). It “does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.” Id. While a party’s failure to identify a witness before trial may allow the judge to exclude that witness’ testimony at trial as a sanction, such exclusion is hardly constitutionally mandatory. See Taylor v. Illinois, — U.S. -, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). f. Cross-examination of Sweeting Scott claims that the trial court violated his Sixth Amendment right by sustaining the state’s objection to defense counsel’s attempt to cross-examine Sweeting on his identification of Kondian. The Supreme Court of Florida rejected this claim in Scott’s habeas petition. When Sweeting first identified Kondian, defense counsel declined the court’s offer of cross-examination. “None, at this time, Judge.” The court then accepted defense counsel’s request that “the record reflect that Mr. Kondian was sitting on the bench inside the railing approximately eight feet from the jury box, accompanied by his attorney, David Roth?” After a short recess, the state then proceeded to examine Sweeting on the crime scene. Sweeting was in charge of processing the crime scene and collecting the evidence. After direct examination, defense counsel cross-examined Sweeting concerning the crime scene and the evidence. On re-direct examination, the state then asked Sweeting about the presence of any drugs at the scene and a statue found at Alessi’s feet. On re-cross, defense counsel asked Sweeting “[a]nd earlier today in your testimony, you identified a fellow named Rick Kondian?” The state objected on the basis that this question was beyond the scope of re-direct examination. “[T]he right of confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.” Ritchie, 107 S.Ct. at 999. But the Supreme Court summarized that “[i]n short, the Confrontation Clause only guarantees ‘an opportunity for effective crossexamination____’” Id. The trial court, of course, did afford defense counsel an opportunity to cross-examine Sweeting regarding his identification of Kondian. Barrs declined this opportunity. He instead sought to inquire into Sweeting’s identification on re-cross-examination during Sweeting’s testimony concerning the crime scene. The Ritchie Court stated that “we hardly need say that nothing in our opinion today is intended to alter a trial judge’s traditional power to control the scope of cross-examination by prohibiting question that are prejudicial, irrelevant, or otherwise improper.” Id. at 999 n. 9 (emphasis added). Given defense counsel’s decision not to cross-examine Sweeting when asked to do so, and a trial court’s traditional discretion to control the scope of examination, the trial court committed no error in sustaining the state’s objection. See, e.g., Fed.R.Evid. 611. g. Scott as an Inmate The trial court denied Scott’s motion for a mistrial following testimony that he was an inmate in the Palm Beach County Jail. The Supreme Court of Florida rejected this argument in its opinion denying Scott’s petition for a writ of habeas corpus. Scott claims that this testimony deprived him of the presumption of innocence. Nurse Yema Reddick testified that she had taken a blood sample from Scott while he was an inmate in the County jail. Her testimony established the chain of custody of a blood sample analyzed by the crime lab. It did not deprive Scott of the presumption of innocence, and the jury was properly instructed on the state’s burden at the close of trial. h. Multi-underlying-felony theory Scott raises two related objections to the state’s use of what he terms a “multi-underlying-felony” theory. First, he claims that the state improperly failed to specify in the Bill of Particulars dated February 8, 1979 or at the charge conference the particular felony which formed the basis of the felony murder instruction. Second, he claims that the state improperly argued that any number of underlying felonies could form the basis of a felony murder conviction, including Alessi’s florist and jewelry shop’s burglary. The Supreme Court of Florida on direct appeal rejected Scott’s challenge that the trial court committed error by instructing the jury on felony murder. Scott raised this “multi-underlying-felony” theory argument in his state habeas petition. Scott challenged this as “fundamental error,” but the court rejected all such claims as having “no merit.” Scott’s first challenge is that by failing to specify in the charging document or the Bill of Particulars which felony constituted the basis for felony murder, he failed to receive constitutionally required notice of the crimes with which he was charged. “No principal of procedural due process is more clearly established than that notice of the specific charge ... [is] among the constitutional rights of every accused in a criminal proceeding, state or federal.” Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed.2d 644 (1948). The state responds that pursuant to Knight v. State, 338 So.2d 201 (Fla.1976), under Florida law an information charging premeditated murder sufficiently encompasses felony murder to allow a felony murder theory of prosecution. Given this imputed knowledge under state law, this court held in Knight v. Wainwright, Case No. 81-391-WMH (S.D.Fla. June 27, 1986) (Hoeveler, J.), that a defendant charged in Florida with premeditated murder is given constitutionally adequate notice of a felony murder theory. The defendant in Knight also contended that the trial court erred by not instructing the jury on the elements of the crimes constituting the underlying felonies. This court held, however, that “the trial court’s omission as to the elements of the underlying felonies was harmless beyond a reasonable doubt.” In this case, though, the trial court did instruct the jury as to the specific elements required under Florida law for both burglary and robbery. Given these full and complete instructions on the elements of the underlying felonies, no error occurred. i. Death Qualified Jury Scott contends that his Sixth and Fourteenth Amendment rights were violated under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), when the trial court excused certain jurors. The Supreme Court of Florida on direct appeal held that the trial court did not err by “excusing, for cause, jurors who unequivocally stated that they would not recommend the death penalty under any circumstances.” Scott, 411 So.2d at 869. In Witherspoon, the Supreme Court held that the death sentence of a defendant cannot stand where the court purged the jury pursuant to a state statute of all persons who admitted to “conscientious scruples” against the death penalty or who were “opposed” to the death penalty. Pursuant to this statute, the trial court had removed 47 veniremen as being either opposed or having scruples against the death penalty. But importantly, the Wither-spoon Court left open the question of whether the court could have removed only those jurors who “would refuse even to consider” the death penalty in the case before them. Id. 391 U.S. at 514, 88 S.Ct. at 1772. The Supreme Court has subsequently definitively upheld the ability of a court to exclude jurors who indicate that they would refuse to consider or impose the death penalty under any circumstances. In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the Court upheld the conviction of a defendant convicted of felony murder and sentenced to life, although the prosecution had sought the death penalty. The Court concluded that the trial court had properly removed all jurors who indicated that their opposition to the death penalty was so strong that it would substantially impair their duties as jurors. The Supreme Court recently extended the Lockhart holding to uphold the conviction of a defendant by a death-qualified jury, where the prosecution sought the death sentence only against the defendant’s co-defendant. Buchanan v. Kentucky, — U.S. -, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987). Given these holdings, it is clear that the state is only precluded from removing the broad spectrum of people who merely “oppose” or have “scruples” against the death penalty. Neither the state nor the trial court violated Witherspoon. The prosecutor asked the jury whether “any of you hold such beliefs regarding capital punishment that you could conceive of no circumstances under which you would vote to have it imposed?” The trial court also inquired of jurors whether it was their “position that no matter what evidence the State would present to you for your consideration concerning the death penalty, under no circumstances could you impose a death penalty.” The only jurors the court excused were those who indicated that they could impose the death penalty under “no circumstances.” The Lockhart case clearly validates the trial court’s excusing of these jurors. j. Lesser included offenses At paragraph 20 of his original complaint, Scott claims that his conviction is unconstitutional because Florida law required the court to instruct the jury as to all lesser included offense, regardless of the factual predicate supporting them. Scott argued in his state habeas petition that this was fundamental error, but the court rejected this challenge as meritless. The Supreme Court of Florida subsequently abolished this practice by adopting Fla.R.Crim.P. 3.510, which provides that “[t]he judge shall not instruct on any lesser included offenses as to which there is no evidence.” Scott did not allege this claim in his amended petition, but the state did respond to it in the state’s original opposition and the Court views it as being properly preserved and presented. Scott contends that instructing as to all lesser included offenses inevitably leads to arbitrary results. The Supreme Court has specifically upheld the jury’s consideration of lesser included offenses in a Florida death case against the defendant’s challenge that it inevitably led to arbitrary results. Proffitt v. Florida, 428 U.S. 242, 254, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976). Furthermore, in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Court held that a defendant was constitutionally entitled to the lesser included offense instruction of felony murder. See also Rembert v. Dugger, 842 F.2d 301 (11th Cir.1988). The failure of the trial court in Beck to give the lesser included offense instruction forced the jury to choose between acquittal and the death penalty. In short, the trial court prevented the jury from considering the “third option” of a conviction of felony murder. Florida’s previous practice merely insured that a jury always had this third option of the lesser included offenses. “[A] decision to afford a defendant mercy violates no constitutional precepts.” Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978). k. Ineffective Assistance of Appellate Counsel Scott asserts that his appellate counsel was ineffective with regard to any issues “not raised on direct appeal but which were presented to the Supreme Court of Florida in habeas or coram nobis proceedings____” In its opinion denying habeas relief, the Supreme Court of Florida held that Scott’s appellate counsel was not constitutionally ineffective. Appellate “[cjounsel is, of course, permitted to winnow out weaker arguments from his appellate brief.” Julius v. Johnson, 840 F.2d 1533, 1543-44 (11th Cir.1988). The standard for judging effective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This is a two-part test, where the defendant must first show that defense counsel’s performance was so deficient that he was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 668, 104 S.Ct. at 2052. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690, 104 S.Ct. at 2066. The second part of the Strickland test is the “prejudice” prong. A defendant must show that any ineffectiveness results in a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. Importantly, both parts of the test must be satisfied, and a defendant’s claim must be rejected “if the defendant makes an insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069-2070. The prejudice requirement is especially significant in this case. Scott’s present claim alleges ineffectiveness in appellate counsel. Certainly where a petitioner is procedurally barred from pressing a claim in collateral proceedings because appellate counsel was ineffective, appellate counsel’s ineffectiveness has prejudiced him. In order to demonstrate prejudice Scott must show that any ineffectiveness resulted in a state court subsequent to his appeal not considering the merits of a claim because it was not raised on direct appeal. But if a state court subsequently reviewed on their merits claims ineffectively not contained in Scott’s direct appeal, he can demonstrate no prejudice because the object of his appeal is to obtain a de novo judgment on the trial court’s legal rulings. In this case, of course, the Supreme Court of Florida in its habeas opinion specifically held that appellate counsel was not ineffective because the court would have rejected those claims Scott identified appellate counsel as having been ineffective for not raising same on appeal. This Court has itself independently reviewed and rejected each of these claims on their merits. This rejection of the merits of these claims can be described under either the competency or the prejudice prongs of Strickland. The unmistakable import of the Supreme Court of Florida’s analysis was that appellate counsel did not act outside the wide range of professional competence by failing to raise a number of “frivolous” claims on appeal. While the Court does not label each of Scott’s claims necessarily frivolous, it agrees that appellate counsel was not ineffective by not pressing meritless claims. Alternatively, the rejection of these claims on their merits can be described under the prejudice prong as meaning that no harm came to Scott even assuming appellate counsel was incompetent by not raising these issue on appeal, because they would have been unsuccessful. Under either description, however, appellate counsel was not ineffective under Strickland by not raising these claims on their merits. Scott’s federal habeas petition only alleges ineffectiveness for those claims not raised on appeal which were “presented to the Supreme Court of Florida in habeas corpus or coram nobis proceedings____” Consequently, as these claims are merit-less, appellate counsel was not ineffective. A District Court evaluating an ineffective assistance of appellate counsel claim, however, cannot narrowly focus on only those particular instances of ineffectiveness presented by a petitioner. Matire v. Wainwright, 811 F.2d 1430 (11th Cir.1987). Rather, the Court has a “duty to evaluate any deficiencies in light of the record as a whole to determine whether it was reasonably probable that the outcome would have been different.” Id. at 1434. The teaching of Matire is that the Court must review the entire record to identify any other specific claims which appellate counsel ineffectively failed to raise on appeal and which thereby prejudiced Scott. Considering the entire record, the one claim which most glaringly was not raised on direct appeal was ineffective assistance of trial counsel. The Supreme Court of Florida specifically noted that Scott’s appellate counsel did not raise an ineffective assistance of trial counsel claim on direct appeal. Indeed, Scott also failed to raise this claim in his state habeas petition. He does, however, raise the trial counsel issue in this petition. Yet Scott is not prejudiced by appellate counsel’s failure to raise this claim, because the Supreme Court of Florida rejected it on the merits in his subsequent Rule 3.850 proceeding. See Scott, 513 So.2d 653. Scott has suffered no procedural bar to the Court’s consideration of his trial counsel claim, and therefore he is not prejudiced simply because appellate counsel failed to raise it on direct appeal. VI. Sentencing Claims a. Nonstatutory aggravating circumstances In its habeas opinion, the Supreme Court of Florida rejected Scott’s argument that the trial court improperly found nonstatutory aggravating circumstances in its sentencing order. The trial court stated: “The defendant’s offenses as a juvenile, relating to auto theft and stealing Christmas tree lights, are not, by themselves, considered significant, nor can they be totally ignored.” Statutory aggravating and mitigating factors provide an important mechanism to narrow the jury’s discretion and to give trial judges “specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life.” Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). A death sentencing scheme must provide “carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence____” McClesky v. Kemp, — U.S.-, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). furthermore, where an aggravating factor is vague and fails to limit the sentencer’s arbitrary power to impose the death penalty, a sentencer’s reliance upon it is improper under the Eighth Amendment. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Yet the Constitution permits a trial court to weigh a defendant’s “juvenile convictions, non-convictions, and other non-statutory aggravating factors” in considering the death penalty. Lindsey, 820 F.2d at 1154. While “statutory aggravating circumstances play a constitutionally necessary function ... [by] circumscribpng] the class of persons eligible for the death penalty____the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.” Zant v. Stephens, 462 U.S. 862, 876, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983) (emphasis added). The critical point of Zant is that once constitutionally proper statutory aggravating factors have achieved the “narrowing function,” the sentencer may consider other relevant factors bearing on the approp