Full opinion text
OPINION AND ORDER OF COURT MOYE, Senior District Judge. Brandon A. Jones, a/k/a Wilbur May, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth in Parts III, A-H, of this opinion, the court finds petitioner’s claims of alleged error during the guilt/innocence phase of his trial to be without merit. For the reasons set forth in Part IV of this opinion, however, the court finds that the state trial court committed constitutional error in the sentencing phase of the petitioner’s trial. Accordingly, the court grants the petitioner’s application for a writ of habeas corpus unless the petitioner shall have been resentenced within 120 days of the date of this order. I. Procedural History During the July, 1979 term of the Superi- or Court of Cobb County, the petitioner, Brandon Astor Jones, a/k/a Wilbur May, was indicted, along with co-defendant Van Roosevelt Solomon, for the murder of Roger Dennis Tackett. In the early morning of June 17, 1979, Mr. Tackett had been murdered at his place of employment, a self-service Tenneco gas station on Delk Road in Cobb County. Petitioner was tried by a jury in the Superior Court of Cobb County on October 8-11, 1979. He was convicted of murder, and sentenced to death by electrocution. The jury found as aggravating circumstances that (1) the offense of murder was committed while petitioner was engaged in the commission of an armed robbery (O.C. G.A. § 17-10-30(b)(2), formerly Georgia Code Ann. § 27-2534.1(b)(2)), and, (2) the offense of murder was outrageously and wantonly vile, horrible and inhuman, in that it involved torture, depravity of mind and an aggravated battery to the victim (O.C.G.A. § 17-10-30(b)(7), formerly Georgia Code Ann. § 27-2534.1(b)(7)). Petitioner appealed his conviction and sentence to the Supreme Court of Georgia. The Supreme Court of Georgia affirmed both on June 30, 1982. Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982). On December 30, 1982, petitioner, pursuant to O.C.G.A. § 9-11-41, et seq., filed a petition for writ of habeas corpus in the Superior Court of Butts County. Petitioner amended his petition on February 15, 1983 and May 9, 1983. After holding evi-dentiary hearings on February 15,1983 and May 9, 1983, the Superior Court of Butts County denied petitioner all relief on June 20, 1983. On July 16, 1983, petitioner filed a notice of appeal of the denial of his petition for writ of habeas corpus, and on July 19, 1983, he filed an application for a certificate of probable cause to appeal. On September 28, 1983, the Supreme Court of Georgia affirmed the lower court’s denial of the petition for writ of habeas corpus. Jones v. Francis, 252 Ga. 60, 312 S.E.2d 300 (1984), cert. denied, 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984). On May 30, 1984, petitioner filed a petition for writ of certiorari in the United States Supreme Court. On October 1, 1984, the Supreme Court denied review. A timely petition for rehearing was filed on October 24, 1984 and was denied. Jones v. Francis, 469 U.S. 1067, 105 S.Ct. 552, 83 L.Ed.2d 439 (1984). On September 29, 1986, petitioner filed a petition for writ of habeas corpus in this court. On November 10, 1986, this court dismissed the petition without prejudice for failure to exhaust state remedies and remanded to the state court for further proceedings. The petitioner filed a second petition for writ of habeas corpus in the Superior Court of Butts County, Georgia on December 9, 1986. On March 10, 1987, the Superior Court of Butts County dismissed the petitioner’s second state habeas corpus petition as successive under O.C.G.A. § 9-14-51, finding the claims to involve procedural defaults with no showing of cause or prejudice. On June 15, 1987, the petitioner filed a notice of appeal and an application for a certificate of probable cause to appeal. On September 25, 1987, the Supreme Court of Georgia denied the petitioner’s application for a certificate of probable cause to appeal. The petitioner filed the instant petition on February 19, 1988, alleging twenty-four separate grounds for relief. The respondent filed an answer to the petition on April 19, 1988 and an extensive brief in support of the answer on June 21, 1988. Since June 21,1988, the petitioner has filed five briefs in support of his petition for habeas corpus, the last of which was filed on August 19, 1988. II. Summary of the Mai Evidence: Guilt/Innocence Phase The evidence presented at trial indicates that at approximately 11:20 p.m. on June 16, 1979, Roger Tackett, the manager of a Tenneco service station on Delk Road in Cobb County, Georgia arrived at his place of employment to assist his employees in closing the station for the evening. His employees left shortly after he arrived, and Mr. Tackett stayed to do some paperwork. At approximately 1:50 a.m. on June 17th, Officer Roy Thomas Kindel, a patrolman with the Cobb County Police Department, drove a woman, who had been stranded by her date, to the Tenneco station to make a phone call from the phone booth located in the station’s parking lot. Officer Kindel observed that a car was parked in front of the Tenneco station. The driver’s door of the car was open. Suspicious as to why a car with its door open would be parked in front of the station at a time when the station was obviously closed, Officer Kin-del decided to investigate. The lights in the store were on and it was, of course, dark outside. As Officer Kindel approached the store, he saw the petitioner poke his head out from the storeroom at the back of the store, take a quick glance around, and quickly shut the storeroom door. The officer testified that he did not think that the petitioner saw him. Not sure what was happening inside the store, Officer Kindel drew his weapon and entered the store, the front doors of which were unlocked. Just after he entered the store, Officer Kindel heard four shots from the back storeroom — three successive blasts, a pause, and then a fourth shot. He took a few minutes to gain his composure (he had “almost hit the ceiling” after hearing the shots) (T. 443), and then yelled: “Police, come on out from back there.” Id. No one responded to his call. Officer Kindel walked toward the back room, opened the door, and found the petitioner and Van Solomon. Officer Kindel instructed the petitioner and his co-defendant to place their hands on top of their heads and walk out of the storeroom. As he backed them out of the storeroom and into the main part of the store, Officer Kindel asked the petitioner and his cohort what they were doing in the storeroom. According to Officer Kindel, Mr. Solomon replied: “Burglarizing.” (T. 445). Officer Kindel instructed the suspects to lie down on the floor of the store. He immediately got on his walkie-talkie to request assistance and then gave the suspects their Miranda warnings. Officer Kindel handcuffed the petitioner and instructed Mr. Solomon not to move. He searched their pockets and led Mr. Solomon outside and placed him, uncuffed, in the back seat of his police car. Officer Kindel then went back inside to escort petitioner out of the store, at which time a private security consultant, Alex Woolard, arrived on the scene in response to Officer Kindel’s call for assistance. Alex Woolard lent Officer Kindel a pair of handcuffs which Officer Kindel promptly placed on Solomon. Meanwhile, the petitioner was placed on the hood of the police car. Woolard agreed to keep an eye on the petitioner while Officer Kindel looked around. Officer Kindel began to search the premises. He found the in-case-of-emergency code tag located on the front window of the store with the phone number to call in case of trouble. He called the number and was told that someone was supposed to be at the store. (T. 448). He then exited the store, surveyed the area around the store, and discovered a van parked in a wooded thicket about fifteen yards from the store. Officer Kindel and Mr. Woolard began putting two and two together and realized that if the van belonged to the suspects then the car parked in front of the store must belong to someone else, presumably the Ten-neco employee who was supposed to still be at the store. Mr. Woolard began to question the petitioner. As Mr. Woolard testified at trial: I said, ‘Why don’t you tell me what is going on, the whole storey (sic).’ And he said, ‘I might get in too much trouble.’ And he kept looking up — his face was down, this way, and he would look up through the windshield to the back where the other subject was sitting and then put his head back down again. He did this two or three times. When I asked them (sic) a question — it was approximately 30 minutes after I arrived on the scene — in talking to him, that he decided — he told me, he said, ‘Well, I might as well tell you — ’, he said, — that there is a man in the back, hurt.’ And I said, ‘What do you mean “hurt”?’ He said, ‘He is hurt bad, he is bad hurt,’ is what he said. I said, ‘Has he been beaten up or what?’ He said, ‘No. He has been shot.’ (T. 491). Mr. Woolard yelled to Officer Kindel that there was “a body in the back.” (T. 491). Officer Kindel and Mr. Woolard grabbed a crowbar from the trunk of Mr. Woolard’s car, entered the store and pried open the storeroom door which had apparently automatically locked upon closing. After breaking the door down, Officer Kindel and Mr. Woolard searched the storeroom and found Roger Tackett in a pool of blood. Mr. Tackett had been shot five times. The medical examiner who performed the autopsy on Mr. Tackett testified at trial that, in his opinion, the victim was first shot in the hip area (twice) and in the left thumb. The examiner opined that the victim was still alive when he received his fourth wound, a shot to the jaw, as indicated by aspirated blood in the victim’s lungs. (T. 682-83). The final shot, in the examiner’s opinion, was to the skull just behind the victim’s left ear and was most likely made with the muzzle of the gun “just about in contact with the skin.” (T. 668). Near the victim’s body, on top of a cardboard box containing a number of plastic garbage bags, the officers found a Smith and Wesson .38 caliber revolver and a Colt snub nose .38 revolver. The Colt revolver had four spent rounds in its chambers; the Smith and Wesson revolver had one spent round. The state’s ballistics expert testified at trial that the bullets removed from Roger Tackett’s body during autopsy were fired from the two guns found on the premises. (T. 649-661). Police also discovered the cash drawer from the store’s register on top of milk crates in the walk-in cooler area of the store, a location different from the usual spot in which it is placed at night. The cash drawer contained $253.50. Three other important pieces of evidence were found on the scene. First, a loaf of bread was found on the front seat of Roger Tackett’s car. Second, a note from Roger Tackett to the manager who was supposed to open the store the next day was found on the counter. The note stated: “I had to come back and lock up. Neither of the girls have the keys. So, I did some of the paper work. Please unfasten the gas closed sign on the pole. Have a good day. Fifty-seven cents for a loaf of bread. Ring it up.” Third, when Roger Tackett was found, his keys and the padlock for the front door of the store were in his possession. These facts indicate that the petitioner and his codefendant waited for Roger Tack-ett to exit the store. When Roger Tackett had gotten to his car and had put his loaf of bread on the seat, the petitioner and co-defendant apprehended Mr. Tackett (this would explain why Mr. Tackett's car door was open), forced him to open the door to the store (the padlock and keys were found in Mr. Tackett’s possession), made him show them where the cash drawer was hidden, took him into the storeroom, and killed him “in cold blood.” Petitioner testified on his own behalf at trial. He stated that he and Van Roosevelt Solomon had driven to the Tenneco in the early morning hours of June 17, 1979 to meet a person from whom petitioner could buy marijuana. He testified that while they were waiting for their supplier to arrive, the petitioner and Mr. Solomon discussed how easy it would be to burglarize the Tenneco station. Petitioner stated that when it became apparent that his supplier was not going to appear, he and Mr. Solomon went into the store to buy some beer. Petitioner testified that when they found no one in the front of the store, they walked into the back storeroom and discovered Mr. Tackett’s body. Petitioner claims that at that point the two men started to leave the station but panicked when they saw a police car in the parking lot. Petitioner testified that he did not harm the victim or take money from the station’s cash drawer. He testified that while he neither fired a gun nor heard any gun shots while at the store, he had fired a gun much earlier in the evening “into the dirt” (T. 706) in Solomon’s backyard. III. Legal Discussion: Guilt/Innocence Phase Petitioner raises in his petition eight separate grounds for relief on the basis of events which occurred in the guilt/innocence phase of his trial. The court will examine each of these grounds in detail. A. Ineffective Assistance of Counsel As Ground A of his application for federal habeas corpus relief, paragraphs 28 and 29, including subparts, petitioner alleges that his court-appointed attorney failed to render reasonably effective counsel at trial in violation of petitioner’s rights under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution, violations which allegedly caused actual and substantial prejudice to petitioner’s defense. The most recent pronouncement of the United States Supreme Court on the issue of ineffective assistance of counsel occurred in Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) where the Court stated: A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, the Court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonably effective assistance. The Eleventh Circuit has also stated that the standard for assessing ineffective assistance of counsel, “demands deference to choices made by the trial attorney.” Mulligan v. Kemp, 771 F.2d 1436, 1440 (11th Cir.1985), reh’g and reh’g en banc denied, 804 F.2d 681 (11th Cir.1986), cert. denied, 480 U.S. 911, 107 S.Ct. 1358, 94 L.Ed.2d 529 (1987). A determination of whether a petitioner received ineffective assistance of counsel is a mixed question of fact and law. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed. 2d 333 (1980). In resolving a claim of ineffective assistance of counsel, the totality of the circumstances in the entire record must be examined. Palmes v. Wainwright, 725 F.2d 1511, 1519 (11th Cir.1984), reh’g denied, 729 F.2d 1468 (1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984), citing Goodwin v. Balkcom, 684 F.2d 794, 804 (11th Cir.1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983). The burden is on the petitioner to establish ineffectiveness by showing that the errors of counsel were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Assuming that petitioner can establish ineffectiveness, he must then establish that if it were not for counsel’s errors or omissions, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. Petitioner’s trial attorney was Darrell Green. Mr. Green testified before the State habeas corpus court on the issue of ineffectiveness. At the time of his testimony, he had been practicing law for about 19 years with a trial practice including both civil and criminal cases. (H.T. 23). Mr. Green was appointed to represent the petitioner. Id. With regard to his experience in capital felony murder cases, Mr. Green testified, “I think Mr. Jones’ case was probably about the fifth death penalty case and probably the — maybe twelfth or thirteenth murder case [I had tried].” (H.T. 24). Two of the cases in which Mr. Green had represented criminal defendants were cases tried under the 1976 Death Penalty Statute under which the petitioner was also tried. Id. Mr. Green filed a motion to sever petitioner’s trial from that of his co-defendant, Van Roosevelt Solomon, and Mr. Solomon was tried prior to the petitioner’s trial. As noted by the state habeas corpus court, Mr. Green was appointed to the case on June 20, 1979, three days after the crime and petitioner’s arrest. (Respondent’s Exhibit No. 17, page 2, citing record on appeal). Petitioner had already been indicted at the time of Mr. Green’s appointment; therefore, it was unnecessary for Mr. Green to demand a preliminary hearing. (H.T. 40). Petitioner’s first claim of ineffectiveness, raised in paragraph 29(a) of his application, is that counsel allegedly failed to investigate adequately the case against the petitioner. As the Eleventh Circuit stated in Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir.1985), cert. denied, 479 U.S. 918, 107 S.Ct. 324, 93 L.Ed.2d 297 (1986), “Speculation is insufficient to carry the burden of the habeas corpus petitioner as to what evidence could have been revealed by further investigation.” Specifically, petitioner cites the fact that his trial counsel sought an investigator only three weeks prior to the time that petitioner’s trial began and almost three months after counsel had been appointed. As noted by the state habeas corpus court, Mr. Green approached the petitioner’s case with the understanding that the death penalty was being sought. (Respondent’s Exhibit No. 17, page 2, citing H.T. 55). Mr. Green interviewed the petitioner six or seven times prior to trial. (H.T. 38). The first several interviews were in June, shortly after the incident occurred and shortly after Mr. Green’s appointment. The remainder of the interviews were spread over the period of time leading up to the petitioner’s trial. Id. In preparing for the petitioner’s trial, Mr. Green personally sat through the entirety of petitioner’s co-defendant’s trial, which lasted three days. (H.T. 24-25). As the state habeas corpus court found, “counsel did not try to obtain a copy of Solomon’s trial because the cases were tried within a week of each other and getting a copy would have delayed Petitioner’s trial.” (Respondent’s Exhibit No. 17, page 3, citing H.T. 33, 64-65). The actual experience of sitting through Solomon’s trial was more likely to prepare Mr. Green for petitioner’s trial than merely obtaining a transcript would have been, especially since the evidence in Solomon’s trial was the same as in petitioner’s trial. (Respondent’s Exhibit No. 17, page 3). Petitioner does not cite to this court any portion of the Solomon trial which, if appropriately preserved, could have been used for impeachment or like purpose at petitioner’s trial. Thus, it is clear that neither paragraph 29(a) nor 29(c) of the petitioner’s application provides a basis for finding that counsel was ineffective. With respect to petitioner’s claim that other portions of his trial counsel’s pre-trial investigation rendered him ineffective, the court finds, after a review of the record and trial transcript, especially the testimony which Mr. Green gave before the state habeas corpus court, that Mr. Green expended great effort in preparation for petitioner’s trial. Mr. Green determined that he would rely on the defense that petitioner was at the scene of the crime in order to obtain some drugs and that the victim was already dead at the time the petitioner entered the convenience store. As Mr. Green stated: Petitioner’s contention was: that the store was open, the door was open and there was a car parked in the front and the lights were on and there was no one in the store and they began looking for someone and went in the back room and found the fellow who was killed in the back room, dead. And of course his [Petitioner’s] defense was that they were not the ones who committed the crime. They just happened upon it. (H.T. 31). Mr. Green did in fact hire an investigator, Jerry Switz, to assist him. (H.T. 25). Mr. Green secured the services of Investigator Switz by means of a motion for funds to hire an investigator. Mr. Switz interviewed witnesses and provided Mr. Green with a factual background concerning these witnesses. Id. Additionally, Mr. Green filed twelve to fifteen discovery and procedural motions before trial. (H.T. 26). Through these motions Mr. Green obtained copies of petitioner’s statement, co-defendant Solomon’s statement, the incident report filed by the police officer, and “basically the State’s entire file.” (H.T. 26). Mr. Green stated that during his discussions with the petitioner, the petitioner was never able to provide him with names of any witnesses who could be called on behalf of the petitioner during the guilt/innocence phase of the trial. (H.T. 27). In contradiction to the petitioner’s claim of prejudice resulting from Mr. Green’s delayed motion for an investigator, Mr. Green testified that Mr. Switz did some preliminary work during the time the motion hearings were held, perhaps three to five hours of work, and then, when the court awarded funds, Mr. Switz worked full time, working approximately 30 to 40 hours. (H.T. 42-43). Mr. Green, with the help of Mr. Switz, interviewed the individuals most likely to be witnesses for the State at trial. Green and Switz both interviewed Officer Roy Thomas Kindel. (H.T. 44). Private Investigator Alex Woolard was also interviewed by both Mr. Green and Mr. Switz. (H.T. 43-45). Mr. Green also interviewed Detective Lee Moss, Capt. William P. Jones, Mr. Julian Deal, Detective Robert W. Kelley, the State’s expert who performed the gun powder analysis, the State’s ballistics expert, and the medical examiner, Dr. Joseph Burton. (H.T. 46-48). Mr. Green testified that he had in his possession all of the reports that the District Attorney had, including the incident report and the individual reports made by the investigating officer of the Cobb County Police Department, in addition to the notes from the conversations that Mr. Green and the investigator had with these persons concerning their reports. (H.T. 49). Mr. Green stated that he did not believe that he needed to engage a medical expert to properly cross-examine Dr. Burton and that he did not need to retain a ballistics expert because of his own expertise in that field. (H.T. 54). Mr. Green stated that he had extensive discussions with the petitioner prior to the time that petitioner took the stand as to what matters petitioner would testify. (H.T. 58). Also, Mr. Green stated that when the jury brought back the guilty verdict, he was prepared to go forward with the penalty phase of the trial. (H.T. 59). As the state habeas court noted: Counsel discussed potential character and mitigation witnesses with petitioner. Petitioner was from Illinois and had been passing through Georgia when co-defendant Solomon had picked him up as a hitchhiker. Counsel knew that petitioner grew up in the outskirts of Chicago and was reared by an aunt and uncle. Petitioner never told counsel about his alcohol abuse or being a victim of child abuse. Petitioner specifically told counsel not to contact his wife and family about testifying because petitioner did not want them to find out about the crime. Petitioner did give counsel the name and telephone number of one family member in Chicago. Counsel called the number four or five times and only once reached someone, a young child. Counsel left his number with the child and asked that his call be returned; it was not. Counsel called a couple of times after that but never got anyone. (Respondent’s Exhibit No. 17, page 5, citing H.T. 28-30; 33; 57-58). With respect to the contention raised in paragraph 29(b), that is, that trial counsel failed to offer any evidence in support of the motion for change of venue, Mr. Green testified that he filed a motion for change of venue and that at the motions hearing, the motion was not denied, but the judge simply reserved ruling on the motion until a later time. (H.T. 32). Mr. Green stated that there was not enough evidence to warrant a change of venue as, “there only had been, and as I recall, and I have it in the file, two or three articles in the Marietta newspaper which is basically the Cobb County paper and none of those had been headline stories. They were on the inside of the paper. And we simply reserved — the judge reserved ruling on that motion until the trial after we questioned the prospective jurors on voir dire.” (H.T. 32). Additionally, Mr. Green stated that there were very few jurors who knew anything about the case. Id. Therefore, Mr. Green stated that there was not sufficient information or evidence to support the motion for change of venue. The court finds that the record supports Mr. Green’s position on this question. In paragraphs 28(d), (e), (f), (g), (h), and (i), petitioner alleges that his trial counsel was ineffective for failing to object to certain arguments made by the prosecutor, to certain instructions given by the trial court, and to the admission of certain evidence. Decisions as to what objections to make and when to make them are matters within the trial counsel’s discretion, and the strategic choices of counsel do not establish ineffective assistance, even if in hindsight these strategic choices are proven to be erroneous ones. Sanchez v. United States, 782 F.2d 928, 935 (11th Cir.1986), reh’g and reh’g en banc denied, 788 F.2d 1570 (11th Cir.1986). The court finds no basis to fault counsel’s conduct of the trial in the areas pointed out, even in hindsight, certainly nothing overcoming the Strickland v. Washington presumptions. In paragraph 28(j), petitioner contends that his trial counsel failed to adequately investigate and locate witnesses and other evidence to present at the sentencing hearing. As discussed above, Mr. Green testified before the state habeas corpus court that petitioner specifically told Mr. Green not to contact his wife and family about testifying, and also the one family member whose name and number were given to counsel could not be reached, even after numerous attempts. (Respondent's Exhibit 17, page 5, citing H.T. 28-30; 33; 57-58). The court notes that counsel is not constitutionally required to present any mitigating evidence on behalf of a defendant at the sentencing phase. See Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), reh’g and reh’g en banc denied, 768 F.2d 1353 (11th Cir.1985), cert. denied, — U.S. —, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1985), citing Stanley v. Zant, 697 F.2d 955, 961-962 (11th Cir.1983), reh’g denied, 706 F.2d 318 (11th Cir.1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984). Mr. Green testified that he and the petitioner had discussed the petitioner’s background. (H.T. 57). From these discussions, Mr. Green learned that the petitioner was from Illinois and had been passing through Cobb County. Mr. Green stated, “and the only other people that I was aware of that he knew was the fellow that was his co-defendant and had not known him very long according to what he told me. He had picked him up hitchhiking on 1-75. He was coming back from Florida.” (H.T. 58). As the petitioner failed to provide Mr. Green with any local character witnesses to testify on petitioner’s behalf, as the petitioner himself insisted that his wife and children be kept unaware of the trial, and as the petitioner’s brother could not be contacted by phone, the court finds that Mr. Green was not ineffective for failing to call additional witnesses in mitigation at the sentencing phase of petitioner’s trial. In paragraph 28(k), petitioner alleges that his counsel was ineffective for failing to object to the State’s use, during the sentencing phase of petitioner’s trial, of the statement which petitioner had given to the police which had been ordered suppressed by the court during a pre-trial hearing. Again, what objections to make and when to make them are matters of trial strategy which do not support a finding of ineffectiveness. See Sanchez v. United States, 782 F.2d at 935. Furthermore, the court notes that defense counsel did object to the prosecution’s questions to petitioner regarding statements contained in the post-arrest statement. (T. 838). In fact, petitioner’s trial counsel asked for a mistrial based on the prosecution’s reference to the suppressed statements. (T. 838-839). In paragraph 28(1), petitioner claims that his attorney was ineffective for failing to make an objection to the trial judge’s allegedly falling asleep for short periods of time during critical portions of the petitioner’s trial. Mr. Green stated that he did not recall the trial judge ever falling asleep and stated that, “I would be very surprised if that occurred. Usually Judge Hames, who was the trial judge in the case, a former prosecutor for about 25 years, and I don’t think he would doze off during a murder case” (H.T. 34). In light of Mr. Green’s testimony that he did not recall Judge Hames’s falling asleep at all during the trial, Mr. Green’s failure to object to an event that he does not recall having occurred certainly does not rise to the level of ineffective assistance of counsel sufficient to amount to constitutional error. Assuming arguendo that Judge Hames did fall asleep during trial, Mr. Green’s failure to object might very well have been a strategically sound decision designed to avoid an embarrassing and awkward situation. Indeed, an objection in such a case may very well have had a negative effect on the jury. Thus, the court is unprepared to say, on the record before it, that Mr. Green’s failure to object to an event he claims did not happen amounts to ineffective assistance of counsel. In paragraph 28(m) of his petition, petitioner contends that his counsel failed to object to the fact that petitioner was denied medical care by the State and that such failure to object resulted in petitioner’s inability to properly assist his counsel. As Mr. Green testified: The only thing that I recall about his medical condition was that, I believe, the day that the trial started, Mr. Jones complained that he was having a medical problem and I relayed that to the judge and the trial was suspended — well, actually we had not started at that point in time. We had been called for trial. And the county physician, Dr. Trion was called and examined Mr. Jones at the time, prior to trial starting. (H.T. 27-28). Other than this problem pri- or to trial, Mr. Green stated that he had no recollection of any other medical problem experienced by the petitioner (H.T. 35), and the petitioner has offered this court no evidence of any ailment that might have impaired his ability to assist his counsel. The court finds petitioner’s claim in paragraph 28(m) to be without merit. In paragraph 28(n), petitioner contends that trial counsel’s failure to object to the trial court’s allowing a Christian Bible to go out with the jury during the course of the jury’s deliberations amounted to ineffective assistance of counsel. Again, counsel’s failure to object does not give rise to an ineffective assistance claim. In fact, the client may be better off if no objection is made, which would be a difficult one in any event, for his client may get the benefit of “Christian” charity from a “Christian” Bible, but, if not, he is left with a substantial legal argument. See infra, Part IV. After reviewing the totality of the circumstances surrounding the petitioner’s trial, this court is of the opinion that petitioner received at least reasonably effective assistance of qualified, experienced and active trial counsel and the petitioner has failed to meet either prong of the test for reviewing ineffective assistance of counsel claims as set forth in Strickland v. Washington, supra. See also, Riley v. Wainwright, 778 F.2d 1544 (11th Cir.1985), reh’g and reh’g en banc denied, 782 F.2d 180 (11th Cir.1986), cert. denied, 479 U.S. 871, 107 S.Ct. 240, 93 L.Ed.2d 165 (1986). B. Voir Dire Procedures In Section B, paragraphs 30-32 of his petition, petitioner contends that the jury selection procedures used by the trial court and the alleged restrictions placed by the trial court on petitioner’s counsel during the jury selection process violated the petitioner’s right to a fair trial by an impartial jury. First, petitioner contends that the trial court refused to permit individual sequestered voir dire of prospective jurors so as to make it “impossible” for-a fair and impartial jury to be selected. (¶ 31). The petitioner claims that as a result of the collective voir dire, prejudicial information was communicated among the prospective jurors during the selection process. Specifically, the petitioner claims that members of the venire were tainted by their peers’ opinions regarding (1) the desirability of execution in murder cases, (2) the credibility of official witnesses vis a vis lay witnesses, and (3) the possibility of early parole in cases in which a life sentence is given. Petitioner also claims that the facts of this case made it necessary for counsel to have the opportunity to raise sensitive and controversial questions to explore any possible bias or prejudice of each prospective juror. The petitioner argues that the panel might have been contaminated by the fact that petitioner’s counsel asked about the community’s knowledge of the case in front of each prospective juror. This issue was raised by the petitioner and decided adversely to him in his first state habeas corpus proceeding in Butts County. (Respondent’s Exhibit No. 17, page 9). The state habeas corpus court held as follows: The request for individual, sequestered voir dire is a matter entirely within the discretion of the trial court and will not be upset absent a showing of manifest abuse of that discretion. Whitlock v. State, 230 Ga. 700, 706 [198 S.E.2d 865] (1973); Stinson v. State, 244 Ga. 219, 221 [259 S.E.2d 471] (1979). Petitioner has shown no abuse of the trial court’s discretion. Petitioner has claimed that prejudicial information was communicated among the veniremen but has not demonstrated any harm resulted, if, in fact, such occurred. (Respondent’s Exhibit No. 17, pages 8-9). The Supreme Court of Georgia, in affirming the state habeas corpus court’s denial of relief, stated: As to the trial court’s denial of the appellant’s request for sequestered voir dire, this is a matter within the discretion of the trial court, and no abuse of discretion can be established without a showing of prejudice; no showing of prejudice has been made here. Jones v. Francis, 252 Ga. at 62-63, 312 S.E.2d 300 (citations omitted). While there is no constitutional mandate compelling the use of sequestered voir dire, this court nevertheless must determine whether the petitioner was denied his right to a fair and impartial jury under the circumstances of this case. While a federal habeas corpus court does not act as a “super state supreme court,” Shaw v. Boney, 695 F.2d 528, 530 (11th Cir.1983), it is the duty of the reviewing court to independently evaluate the voir dire testimony of the impaneled jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1960). The Supreme Court of the United States in Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2889, 81 L.Ed.2d 847 (1984), citing Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961), stated that a trial court’s finding of impartiality of the jury as a whole can be overturned only for “manifest error.” For the reasons set forth below, the court finds that voir dire was conducted in this case in a manner sufficient to protect the petitioner’s constitutional rights. At the beginning of the voir dire proceedings, the trial court stated as follows: Show by agreement that the voir dire, the statutory voir dire questions, will be propounded to the four panels as they are seated in the courtroom and then the individual questions to the twelve as placed upon the defendant in the jury box. Also, the question as to any inconvenience as to sequestration of the jury (sic). (T. 2). The trial court then read the indictment to the jurors and asked them the statutory questions. (T. 2-4). The trial court inquired at that point whether, if the jury were to be sequestered, there would be any unusual hardship on any potential juror. (T. 4-7). Then, defense counsel asked the jury, by panels, the following questions: For any reason have any of you jurors formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar? Is your mind perfectly impartial between the State and the accused? (T. 7). The court then excused the jurors in the courtroom for thirty minutes, except those in the box, but asked that the jurors remain on the same floor as the courtroom for that period of time. (T. 10). Individual voir dire was then conducted of the jurors, by panels, by the state and defense counsel. Wide latitude was granted to the defense in questioning the individual jurors. (See Appendix A). An examination of all of the voir dire proceedings, which cover some 350 pages, reveals that there were very few restrictions placed by the trial court on the questioning of prospective jurors by defense counsel. In fact, there was not a limitation on the number of questions to be asked and barely any limitation on the scope of the questions. Additionally, a review of the questioning of the prospective jurors reveals a remarkable candidness and frankness in their responses to questions and an ability of defense counsel to elicit from the prospective jurors their opinions about the death penalty, their knowledge of the case, and any prior disposition that they might have brought to their deliberations. Very few of the jurors had read or heard much about the case and what they had heard was only in general terms, i.e., that there had been a murder and armed robbery which had taken place at a service station. There was no revelation of deep-seated feelings or opinions about this particular case or this particular defendant so as to establish that the community was so enraged that the trial court should have exercised its discretion to permit sequestered individual voir dire. For the reasons stated above, the Court finds that the petitioner’s right to a fair trial was not violated by the trial court’s decision to disallow sequestered voir dire. In paragraph 32 of his petition, petitioner complains that the trial court improperly denied his counsel’s request for ten minutes to review his notes and confer with his client prior to the exercise of his preemptory challenges and that the trial court improperly limited the petitioner’s counsel to one minute to decide on each strike. As a result of these rulings of the trial court, petitioner’s jury was allegedly selected in a “hurried and uninformed manner.” (Petition, 1132). This issue was raised by the petitioner in his appeal to the Supreme Court of Georgia and the Georgia Supreme Court held as follows: Appellant [petitioner] argues that the trial court erred in invoking Rule 58 of the “Rules of the Superior Courts” (Code Anno. § 24-3358), prior to striking a jury. This rule provides, ‘[I]n striking juries, not more than one minute shall be allowed either party for each strike; and if either party should fail to strike, by such failure he shall forfeit a strike; and if more than twelve jurors remain on the jury list, the first twelve not stricken shall constitute the jury.’ After the parties had made challenges for cause, but prior to striking the jury, the trial court announced its intention to invoke the rule of Code Anno. § 24-3358. Appellants did not object at this time but waited until the jury had been struck and dismissed for the night to voice his objections to the one minute limitation. Four times during the striking of the jury, the trial court notified the appellant that appellant had taken in excess of one minute to decide whether to strike a juror or not. However, on none of these occasions did the trial court require the appellant to forfeit the strike. In fact, the record indicates throughout the striking of the jury appellant was allowed to take over one minute in deciding whether to strike each juror without penalty. While we agree with appellant that counsel should be given a reasonable time in which to decide whether to strike a potential juror, we know that the trial court is vested with a broad discretion to determine how much time is reasonable. We cannot say, under the circumstances of this case, the trial court abused that discretion. Further, we note that appellant has not shown that he was harmed by the time limitation imposed upon him. Jones v. State, supra 249 Ga. at 609-610, 293 S.E.2d 708. The rule at stake in petitioner’s challenge is a state procedural rule. As such, no constitutional question is involved, and the Georgia Supreme Court’s ruling is entitled to deference. See Bronstein v. Wainwright, 646 F.2d 1048, 1050 (5th Cir.1981). Therefore, this court defers to the judgment of the Georgia Supreme Court’s determination that the trial court did not abuse its discretion by invoking a one minute limitation on petitioner’s counsel in determining which jurors to strike. C. The Trial Court’s Failure to Exclude Jurors for Cause In Section C, paragraphs 33-35, petitioner claims that the trial court failed to grant any challenges for cause, despite the fact that several jurors allegedly expressed bias which would interfere with their ability to be fair and impartial in considering the petitioner’s case. Specifically, the petitioner refers the court to the voir dire testimony of venire persons Savage, Wright, and Merton. In paragraph 35 of his petition, petitioner submits that the trial court’s rejection of defense counsel’s challenge to venire person Savage for cause constitutes reversible error. Venire person Savage was challenged for cause because he remembered “some of the circumstances” of the case from media reports (T. 88), and he had “an opinion after he read” the accounts (Id.) that “something had to be done about it.” (T. 89; see also T. 346). The United States Supreme Court stated in Irvin v. Dowd, supra: It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. 366 U.S. at 722-723, 81 S.Ct. at 1642-43 (citations omitted). Prospective juror Savage, whom petitioner claimed had a preconceived opinion about this case so as to warrant his excusal for cause, stated during the voir dire proceedings that “I remember seeing something in the paper about it. I know when it [crime] first happened, but I don’t remember much about it.” (T. 88). Mr. Savage stated that he remembered seeing something in the paper about it right after it happened but that he did not read the article thoroughly. (T. 88). When asked whether what he had read would come back to his mind again if he was a juror in the case, Mr. Savage stated, “Well, I believe probably everyone has an opinion after they read something.” (T. 88). Upon further examination, however, it appears that the “opinion” Mr. Savage held, was not about this particular case, but rather was in regard to his opinion or belief that something had to be done about the crime rate. (T. 89). As Mr. Savage stated, “Well it [his opinion] is not just one case, it is on all things.” (T. 89). This general opinion, unrelated to petitioner’s specific crime was further clarified when Mr. Savage stated that he was familiar neither with any of the claims involved (T. 88) nor with the names of those being accused of the crime. (T. 90). Furthermore, the trial court asked Mr. Savage if he had an opinion that could not yield to the evidence, and Mr. Savage replied that he did not. (T. 346). Inasmuch as Mr. Savage’s voir dire testimony fails to indicate that he had any preconceived notions about the petitioner or the facts of the crime, and inasmuch as Mr. Savage testified that he did not have an opinion which would not yield to the evidence, this court finds that the trial court did not abuse its discretion in overruling petitioner’s challenge to Mr. Savage for cause. Petitioner also claims the trial court committed reversible error by rejecting petitioner’s counsel’s challenges for cause against those jurors who allegedly displayed bias toward prosecution witnesses. Throughout voir dire, petitioner’s counsel asked potential jurors whether they would give more credence to official or police witnesses than lay witnesses. (T. 2-358). Prior to striking a jury, petitioner’s counsel challenged for cause jurors Butler, (T. 54-55), Merton (T. 61-62), Williamson (T. 67-68), Younglove (T. 76-77), and Wright (T. 83) because of their responses to this question. (T. 345-46). The trial court overruled the challenges. An examination of the responses of prospective jurors to petitioner’s counsel’s questions about whether these prospective jurors would give more credence to police officers than lay witnesses does not establish that the jurors were in fact more favorable to the state’s case. Thus, the trial court did not err in overruling the challenges to prospective jurors Butler, Merton, Williamson, Younglove, and Wright. D. Petitioner’s Statements to Private Security Officer Woolard In Section D, paragraphs 33-35, petitioner contends that the introduction into evidence of certain oral statements made by petitioner to private security officer Alex Woolard violated petitioner’s rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Specifically, petitioner contends that security officer Wollard was acting as an “agent” for Cobb County police officer Kindel (who, as noted in the Statement of Facts, arrested petitioner and his co-defendant). Petitioner further argues that, although Officer Kindel read the petitioner his Miranda warnings, the petitioner never expressly waived his rights; thus, the information given to Alex Woolard by the petitioner was improperly admitted at trial. Mr. Woolard testified at trial as follows: I said, ‘Why don’t you tell me what is going on, the whole storey (sic).’ And he said, ‘I might get in too much trouble.’ And he kept looking up — his face was down, this way, and he would look up through the windshield to the back where the other subject was sitting and then put his head back down again. He did this two or three times. When I asked them (sic) a question — it was approximately 30 minutes after I arrived on the scene — in talking to him, that he decided — he told me, he said, ‘Well, I might as well tell you — ’, he said, ‘ — that there is a man in the back, hurt.’ And I said, ‘What do you mean “hurt”?’ He said, ‘He is hurt bad, he is bad hurt,’ is what he said. I said, ‘Has he been beaten up or what?’ He said, ‘No. He has been shot.’ (T. 491). The first question which this court must address is whether private security officer Woolard was acting as an agent of Officer Kindel. Whether Woolard was acting as a state agent is a question of law, which this court must reevaluate de novo. See, e.g., Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (issues surrounding voluntariness of confession are questions of law meriting independent consideration by federal habeas court); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) (federal court should defer to state court findings of fact made after a full and fair hearing, but may not defer to its findings of law). It is undisputed that Woolard and Officer Kindel worked in unison to detain the petitioner and his codefendant. Woolard, a former sheriff (T. 485), arrived in response to Kindel’s dispatch call (T. 487); Kindel asked for and used Woolard’s handcuffs (T. 485-487); and Kindel and Woolard alternated guarding the suspects while the other searched first the car and the store. (T. 488). Kindel directed Woolard in the course of these actions. (T. 492). On the basis of these facts and the testimony attached as Appendix B to this Opinion and Order, this court finds that Woolard was acting as an agent of the state at the time that the petitioner made the above-quoted incriminating statements. See United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (an inmate in jail enlisted by police to inform on other inmates is agent of the state). The second issue which this court must address is whether Mr. Woolard, acting as an agent of a state law enforcement agent, had a duty to give the petitioner new Miranda warnings before questioning him. Officer Kindel has testified, and petitioner does not dispute, that Officer Kindel gave petitioner and his co-defendant their Miranda warnings when he arrested them. The record is also clear on the point that Mr. Woolard did not re-administer Miranda warnings before he began to question the petitioner. The court finds that Miranda warnings were not necessary at all under the exigent circumstances. The questions posed by Mr. Woolard were not aimed at establishing petitioner’s guilt. Rather, the questions were aimed at determining whose car was in front of the store and whether there was another person on the premises for if there were, it was obvious such other person was incapacitated in some way from making himself known. Miranda itself, (Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966)) held that “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding”; see also Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980) (“the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response”) (emphasis added). The record indicates that Mr. Woo-lard arrived on the scene shortly after Officer Kindel apprehended the suspects. (T. 487). The record also indicates that Officer Kindel and Mr. Woolard were working together to try to solve the puzzle of what had occurred at the station. See Appendix B. The record reflects that the questions asked of the petitioner by Woolard were part of a continuing investigation and interrogation aimed at discerning what had occurred at the service station. There is no duty to repeat Miranda warnings where the questioning is part of a continuing interrogation. Watson v. State, 227 Ga. 698, 700, 182 S.E.2d 446 (1971) (no new Miranda warnings necessary although seven hours had elapsed since initial warnings given); Williams v. State, 244 Ga. 485, 488, 260 S.E.2d 879 (1979) (no repetition of warnings necessary even though day had elapsed). Thus, assuming arguendo that Miranda warnings were required under the circumstances, the court finds that, as a matter of law, Mr. Woolard was under no duty to readminister Miranda warnings. The next issue which the court must address is whether the petitioner’s statement to Mr. Woolard that he did not want to tell “what is going on” because he “might get in too much trouble” (T. 491) can be interpreted as an attempt to invoke his rights under Miranda. While the petitioner’s statement does indicate hesitancy to tell Woolard what happened, it clearly indicates an investigation of a currently continuing dangerous situation — dangerous not only to the persons talking but also to unknown third persons. The court finds that this momentary reluctance to answer a currently pressing question does not rise to the level of an assertion of his Miranda rights, nor does it arise to the level of an equivocal invocation necessitating followup questioning as to the petitioner’s desire with respect to terminating the questioning. The petitioner did not refuse to answer Mr. Woolard’s questions. He did not ask Woolard to stop asking questions. He did not ask for an attorney. Under these circumstances, the court finds no implied assertion of rights. See, e.g., Reeves v. State, 241 Ga. 44, 243 S.E.2d 24 (1978), cert. denied, 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978) (the statement “I ain’t saying nothing” held not to amount to assertion of right to remain silent); Taylor v. Riddle, 563 F.2d 133 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1977) (“You’ve done asked me a question I can’t answer” held not to amount to claim of privilege). In Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985), modified, reh’g and reh’g en banc denied, 781 F.2d 185 (1986), cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986), the United States Court of Appeals for the Eleventh Circuit addressed the issue of what procedures an interrogator should follow when a person being interrogated makes an equivocal invocation of the right to cut off questioning. In Martin, the petitioner was arrested at about 2:30 p.m. and was interrogated, off and on, from 2:30 until 7:55 p.m. when he finally confessed. 770 F.2d at 922. At some point during his interrogation, the petitioner said “Can’t we wait until tomorrow?” His interrogator responded: “Let’s go on.” Id. at 923. On these facts, the Eleventh Circuit held that the petitioner had made an equivocal invocation of his rights which gave rise to a duty on the part of the interrogator to attempt to clarify whether petitioner intended to invoke his right to cut off questioning. Id. at 924. The Court held that the questioner’s failure to clarify petitioner’s intent violated the dictates of Miranda and Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). This court finds the instant case distinguishable from Martin in an important respect. Assuming arguendo that Woolard’s questioning reached the level of “interrogation” as that term is defined in Rhode Island v. Innis, supra, (so that Miranda warnings were necessary), the petitioner’s protestation with respect to Woolard’s questioning is markedly different from that in Martin. In Martin, the petitioner’s statement indicated a desire to postpone his questioning. The petitioner’s statement here evinces no such desire. The court finds that the petitioner’s statement that “I might get in too much trouble” manifests a momentary reluctance which not only falls short of even an equivocal invocation of the right to cut off questioning of the type discussed in Martin, but was in response to a question clearly necessary to unravel an obviously dangerous situation. The last question the court must address with respect to the admission of petitioner’s statement to Woolard is whether petitioner’s statement that there was a body in the back of the store (preceded by the statement “I might as well tell you”) amounts to a waiver of his Miranda rights. The court has little trouble finding that it does. The United States Supreme Court held in North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) that “an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case.” 441 U.S. at 375-76, 99 S.Ct. at 1758-59. As two leading commentators on criminal procedure have noted: “[A] finding of waiver is likely when the defendant has engaged in certain conduct falling a bit short of an express waiver, such as a declaration of a cooperative attitude or even a nod or a shrug.” 1 W. LaFave and J. Israel, Criminal Procedure § 6.9(d) at 531 (1984 and Supp.1988) (footnotes omitted). Here, the petitioner’s declaration of a cooperative attitude was denoted by his remark “I might as well tell you ...” (T. 491). See United States v. Boykin, 398 F.2d 483, 484 (3rd Cir.1968), cert. denied, 393 U.S. 1032, 89 S.Ct. 645, 21 L.Ed.2d 575 (1969) (defendant’s statement, after being read his rights, that “I might as well tell you about it” constitutes waiver of Miranda rights). Thus, the court finds that petitioner’s statement to Woo-lard was not admitted in violation of the petitioner’s rights. E. Violation of Confrontation Clame In Section E of his petition, the petitioner alleges as follows: 40. The introduction into evidence of an oral statement made by Petitioner’s code-fendant, who was separately tried, to a police officer violated Petitioner’s rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. 41. During Petitioner’s trial, arresting officer Kindle (sic) testified about the procedure he used in placing Petitioner and co-defendant Solomon under arrest. While he was ordering each man to lie down on the floor, Kindle (sic) testified that he asked both men what they were doing in the store. Petitioner made no response. Kindle (sic) testified however that Solomon responded, ‘burglarizing’ (T. 445). 42. This statement of Solomon’s was hearsay. Solomon was not presented as a witness at any time and was not available for cross-examination by Petitioner at trial. The admission of the statement was particularly prejudicial because it provided the State with a motive to explain Petitioner’s presence in the store. While its admission violated the rules of evidence barring hearsay, it also violated Petitioner’s constitutional right to confront his accuser. The state habeas corpus court rejected this contention finding that: The Sixth Amendment provides that an accused in all criminal prosecutions shall enjoy the right to be confronted with the witnesses against him. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The purposes served by the right of confrontation are to insure that the statements of witnesses are under oath, to force the witness to submit to cross-examination, and to permit the jury to observe the demeanor of the witness. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Petitioner has claimed under the authority of Pointer that Officer Kindel’s testimony concerning Solomon’s statement violated his right to confrontation because Solomon’s statement was hearsay, Solomon did not testify, and Solomon was not available for cross-examination. However, Petitioner himself at the scene of the crime told Mr. Woolard that he and Solomon had come there to burglarize the place. (T. 490-91). At trial Petitioner testified that Solomon told Officer Kindel they had talked about burglarizing the store. (T. 715-16). Thus, the testimony of Officer Kindel as to Solomon’s statement was cumulative of evidence given by Petitioner himself. Any possible error in the admission of Solomon’s statement was harmless. (Respondent’s Exhibit No. 17