Full opinion text
PER CURIAM: Roger Collins was convicted in the Superior Court of Houston County, Georgia, of rape and murder. He was sentenced to fifteen years imprisonment for the rape and to death for the murder. After exhausting his state remedies, Collins petitioned the district court to issue a writ of habeas corpus setting aside his convictions and death sentence on several constitutional grounds. The district court denied his petition, and we affirm. I. The events leading up to this appeal began on the evening of August 6, 1977. Collins, a black male eighteen years old, and two friends, William Durham, Collins’ mother’s boyfriend, and J.C. Styles, Durham’s cousin, were attending a neighborhood barbecue in Warner Robins, Georgia. The three men were drinking beer and liquor. At about midnight, they ran out of liquor and set out in Collins’ car in search of more. On their way, they saw Delores Lester, who at some point had been sexually intimate with each of the three men, emerge from a car. They stopped and asked her to have sexual relations with them. She declined their invitation. They then offered to give her a ride home, and she got into the car. The four drove around for a while and eventually stopped at a convenience store for beer and gas. From there they drove to a pecan orchard on the outskirts of Warner Robins. As they arrived at the orchard, Delores Lester, apparently fearing the worst, protested that she “had claps” and was “two months pregnant.” The men removed the back seat of the car and placed it on the ground. Delores Lester disrobed, and the three men raped her. Collins was first. As Collins performed the act, Durham told Styles that he was going to kill Lester. He boasted that he had killed other people, including a woman he had “done like this.” After Collins finished, Delores Lester started screaming “why me?” Durham pulled a knife and told her that if she did not keep quiet he would “rip her damn heart out.” Durham and Styles then raped her. When they had finished, Durham took her by one hand and led her up a road further into the orchard. He had his knife in the other hand. Collins took the car jack out of the trunk of the car and followed them. Styles remained by the car. A few moments later he heard about three “licks” being struck. After a brief period of silence, Durham and Collins returned, Durham carrying the jack. They had blood on their shoes, perhaps on their clothes as well. The three men replaced the car seat, gathered Delores Lester’s clothes, and left. On their drive back to town, Collins discarded the car jack along the side of the road and disposed of Lester’s clothes in a dumpster. They arrived in Warner Robins at 2:30 a.m. and split up. Styles decided to go to the police. He went to the Warner Robins police department at 10:00 that morning and reported the events we have described. The police immediately turned the case over to the Houston County Sheriff’s Office. By that afternoon, Sheriff’s deputies had Collins and Durham in custody and had given them their Miranda rights. Both remained silent. At about 5:30 p.m. that day Collins was again advised of his rights, but he refused to talk. After a visit from his mother a short time later,. Collins decided to cooperate. The Sheriff’s chief deputy, Willie Tai-tón, and one of his investigators, Lieutenant Harry Enckler, advised Collins of his Miranda rights, and Collins made a statement (First Statement). The officers recorded it on tape; they took no notes. Collins admitted raping and killing Delores Lester. The next day Collins was arraigned before- a magistrate. At that time he asked for an attorney. An attorney was appointed at some later date, perhaps as late as September 1. Meanwhile, the sheriff’s office discovered that the tape recorder had failed to record Collins’ First Statement, so on August 12 Chief Deputy Taitón and Lieutenant Enckler decided to reinterrogate Collins. They informed Collins that the tape recorder had failed to record his First Statement and asked him if they could tape it again. Collins consented. The officers then read him his rights and recorded another statement (Second Statement). This statement was less incriminating than the first one. Collins admitted having intercourse with Delores Lester but did not describe it as rape, and he stated that his role in the murder was minimal. He said that he had told Delores that he would not harm her, but that Durham had then struck and killed her. While Collins did admit carrying the murder weapon, the car jack, and giving it to Durham, he said that he did so at Durham’s direction. Collins and Durham were indicted by the Houston County grand jury for rape and malice murder. They were tried separately, Collins’ trial occurring first, on November 15, 1977. Styles was not indicted; he was granted immunity and became a prosecution witness. Before the trial began, the court held a Jaekson-Denno hearing on Collins’ motion to suppress his two statements. The judge found that Collins had given both statements voluntarily, after being advised of and waiving his Miranda rights. In the guilt phase of Collins’ trial, the State’s theory of the case was that Collins had killed Delores Lester. The prosecutor presented the testimony of several law enforcement officers who had investigated the case, including Chief Deputy Talton and Lieutenant Enckler, several crime lab experts, a pathologist, the clerk at the convenience store where Collins and the others had stopped on the night of the crime, and Styles. The State, having found the car jack that Collins had discarded, introduced it into evidence. The pathologist and the crime lab experts established that it was the murder weapon and bore Collins’ right thumbprint. Talton and Enckler introduced the two statements Collins had given them. They testified from memory as to the contents of the First Statement, explaining that the tape recorder they had used to record it had malfunctioned and that a tape of the statement was therefore unavailable. They established the contents of the Second Statement by presenting a transcript of the tape recording thereof. Styles, testifying later, corroborated the First Statement: Collins, Durham, and Styles raped Delores Lester; Durham and Collins took her into the pecan orchard and killed her with the jack Collins had taken from the car. Styles also repeated the comments Durham had made — about others he had killed — while Collins was having intercourse with the victim, and some remarks Collins had made in the car as the three men drove back to town. According to Styles, Collins had said, intermittently, laughing and joking, “hey man you didn’t think I was going to hit her up ’side the head too”, that “he had killed so many peoples that he can’t remember how many,” and that “he knocked hell out of Johnny, Johnny down at the liquor store.” Finally, Styles testified that Durham had warned him that if he went to the police Durham would “put him into everything me and Roger [Collins] done.” After presenting this evidence, the State rested. Collins presented no defense. In closing, the prosecutor argued that Collins had committed the murder; the defense countered that Durham, not Collins, had killed Delores Lester. The jury found Collins guilty of both rape and malice murder. The sentencing phase of the trial on the malice murder charge followed. The proceeding was brief. The State presented no evidence, and Collins was the only defense witness. He admitted being present at the scene of the crime, but denied killing Delores Lester, stating again that Durham had performed the deed. Collins said little else in mitigation. The jury, finding that Lester’s murder was attended by aggravating circumstances, recommended the death penalty. On November 17, 1977, the trial judge, bound by the jury’s recommendation, sentenced Collins to death. (He sentenced Collins to fifteen years imprisonment on the rape charge.) The Georgia Supreme Court, on direct appeal, affirmed Collins’ convictions and his death sentence. Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979). The United States Supreme Court, on certiorari, remanded the death sentence to the Georgia Supreme Court for further consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Collins v. Georgia, 446 U.S. 961,100 S.Ct. 2936, 64 L.Ed.2d 820 (1980). The Georgia Supreme Court reaffirmed the death sentence. Collins v. State, 246 Ga. 261, 271 S.E.2d 352 (1980). The United States Supreme Court declined further review, denying certiorari on January 12, 1981. Collins v. Georgia, 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 829 (1981). On March 16, 1981, Collins filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. That court denied the petition on August 20, 1981, and the Georgia Supreme Court refused to grant a certificate of probable cause to appeal. The United States Supreme Court denied Collins’ petition for a writ of certiorari on April 26,1982, and on June 24, 1982, denied his petition for rehearing. Collins v. Zant, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982). Collins then instituted these habeas corpus proceedings in the district court, presenting ten federal constitutional claims, all exhausted. The court denied each claim presented, without an evidentiary hearing, on December 17, 1982, and on January 4, 1983, denied Collins’ motion for rehearing. The district court did issue a certificate of probable cause to appeal, however, and Collins lodged this appeal. In this appeal Collins presents eight of the ten claims he presented to the district court. Three challenge his convictions only, four challenge his death sentence only, and one challenges both his convictions and his death sentence. The three claims challenging his convictions are: (1) that the jury instructions at the conclusion of the guilt phase of his trial impermissibly shifted to Collins the prosecution’s burden of proving every element of the charged offenses beyond a reasonable doubt and thus denied him due process of law; (2) that the admission into evidence of the Second Statement violated the fifth and fourteenth amendments and the rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), because it was taken after Collins had requested a lawyer; and (3) that the admission into evidence, through Styles’ testimony, of remarks Durham and Collins made during and following the commission of the charged crimes violated Collins’ rights of confrontation and against cruel and unusual punishment guaranteed him by the sixth, eighth, and fourteenth amendments and rendered the jury’s findings of guilt unreliable. The four claims challenging Collins’ death sentence are: (1) that a juror was excused who did not meet the Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), standard for excusal on the ground of scruples against the death penalty; (2) that the prosecutor’s closing argument was inflammatory and prejudicial, violating the due process standards set forth in Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, — U.S. —, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983); (3) that the trial judge’s jury instructions on aggravating and mitigating circumstances and the Georgia Supreme Court’s review of the trial judge’s sentencing instructions as a whole were inadequate and violated Collins’ eighth and fourteenth amendment rights; and (4) that the Georgia Supreme Court’s review of the proportionality of the death sentence in this case was inadequate and thereby violated Collins’ right to due process and subjected him to cruel and unusual punishment under the eighth and fourteenth amendments. The final claim, challenging both the convictions and the death sentence, is that Collins’ counsel was ineffective at both the guilt and sentencing phases of his trial, thus violating his sixth and fourteenth amendment rights to counsel. Collins asks as an alternative to issuing the writ that we remand the case to the district court for an evidentiary hearing on this claim. II. A. Petitioner contends that the trial court’s charge to the jury at the conclusion of the guilt phase of his trial shifted the burden of proof to him on essential elements of the crimes charged, in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The court allegedly committed this error in its definition of implied malice and in instructing the jury, on both malice murder and rape, that it should presume the defendant’s intent once it found certain facts. We first consider the instruction defining malice murder; we then consider the instruction on intent. 1. The trial court instructed the jury that “[mjalice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” This instruction, as we indicated in Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1982), cert. denied — U.S. —, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983), did not create a presumption. It merely defined implied malice. Id. at 1340. The prosecution was still required to prove beyond a reasonable doubt no provocation and all circumstances indicating an abandoned and malignant heart, before the jury could imply malice. Since the prosecution’s burden extended to all essential elements of malice murder, no impermissible burden shift could have resulted from the instruction. 2. Instructing the jury on intent, the trial judge stated: A presumption is a conclusion which the law draws from given facts. Each of the following presumptions that I am going to give you is rebuttable; that is, each is subject to being overcome by evidence to the contrary. Every person is presumed to be of sound mind and discretion. The acts of a person of sound mind and discretion are presumed to be the product of the person’s will. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts. (emphasis added). Petitioner argues that the italicized portion of this instruction cannot be distinguished from the instruction condemned in Sandstrom. See 442 U.S. at 513, 99 S.Ct. at 2453. We see no need to address the constitutionality of the instruction in this case, however. Assuming without deciding that the instruction impermissibly shifted the burden of proof, we hold that the error was harmless beyond a reasonable doubt. See Lamb v. Jernigan, 683 F.2d 1332, 1334 (11th Cir.1982); Holloway v. McElroy, 632 F.2d 605, 618 (5th Cir.1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981). An instruction is harmless when it “shifts the burden on an element that is not at issue in the trial .. .. ” Lamb, 683 F.2d at 1342. The evidence at trial established that Collins and Durham carried the victim into a pecan orchard; Collins also carried a car jack into the orchard. According to the crime lab experts, someone struck the victim on the head several times with the jack. The prosecutor at trial asserted that Collins struck the fatal blow. Collins denied this assertion; his defense was that Durham killed the victim. Collins did not argue that the victim was not struck with the jack; he also did not argue that the killer acted unintentionally. Thus, the only question before the jury in connection with the murder charge was whether Collins or Durham delivered the fatal blow — intent was not at issue in the case. For this reason, any error in the judge’s instructions could not have harmed Collins in any way. The instruction also could not have harmed Collins as applied to the rape charge. To prove rape the prosecutor was required to establish three elements: (1) penetration of the victim (2) with force (3) without her consent. (Collins admitted the element of penetration.) Intent was not an element of the crime of rape in Georgia when Collins was tried. See Ga.Code Ann. § 26-2001 (1978). For this reason, it is clear beyond a reasonable doubt that the intent instruction also could not have affected the jury’s verdict on the rape charge. B. Petitioner contends that the admission into evidence of his Second Statement was constitutionally impermissible in light of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Both the Georgia superior court, in its habeas corpus review, and the district court below concluded that his Second Statement had been taken in violation of Edwards but that its admission in evidence was harmless beyond a reasonable doubt. We cannot agree that the admission was harmless; the Second Statement provided the jury with some details of the tragedy and corroborated aspects of the State’s case against Collins. The Second Statement in itself, even though it portrayed Durham rather than Collins as the killer, certainly showed Collins to be right at the scene, engaging in the rape, carrying the jack, and participating in the coverup afterwards. While it was not as incriminating as the First Statement, the Second Statement, having been recorded on tape, was more reliable. The tape recorder failed to record the First Statement, and the officers who took it and introduced it into evidence made no notes of their interrogation. Consequently, they had to testify from sheer memory, and they were cross-examined extensively. It is disingenuous, therefore, for the State to assert that just because Collins’ Second Statement incriminated Durham more than Collins it materially aided his case. The State certainly did not consider the statement exculpatory, and beneficial to the defense, when it offered it in evidence. Though we cannot conclude that the Second Statement was harmless, neither can we agree with the state superior court’s, and the district court’s, conclusion of law that the admission of that statement violated Collins’ fifth and fourteenth amendment rights under the authority of Edwards. The facts in Edwards were, briefly, as follows. Edwards was arrested, taken to the police station, and interrogated. When he requested counsel, the interrogation stopped, and he was confined to the county jail. The next day, before counsel was appointed, two detectives came to the jail and asked to see Edwards. The jailer told Edwards that he had to talk to the detectives. The detectives advised Edwards of his Miranda rights, and he told them he was willing to make a statement without the presence of counsel, which he did. The Supreme Court held that Edwards’ conduct did not amount to a waiver of his right to the presence of counsel. The Court couched its holding in explicit terms: [W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-5 (emphasis added) (footnote omitted). The Court in Edwards held that the use of Edwards’ confession against him at trial “violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda v. Arizona [389 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ].”, 451 U.S. at 479, 101 S.Ct. at 1882. The Court discussed the nature of the fifth amendment right: In Miranda v. Arizona, the Court determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney. 384 U.S., at 479, 86 S.Ct., at 1630. The Court also indicated the procedures to be followed subsequent to the warnings. If the accused indicates that he wishes to remain silent, “the interrogation must cease.” If he requests counsel, “the interrogation must cease until an attorney is present.” Id. at 474, 86 S.Ct., at 1627. The Edwards Court expressly declined to base its holding on the sixth amendment, or even to discuss how the sixth amendment might relate to the case. 451 U.S. at 480 n. 7, 101 S.Ct. at 1883 n. 7. The context in which the fifth and fourteenth amendment rights protected in Edwards arise is described more fully in Fare v. Michael C., 442 U.S. 707, 717-18, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197, quoting from Miranda: “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise .... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” Id., 389 U.S. at 473-474, 86 S.Ct. at 1627, 1628 (footnotes omitted) (emphasis added). In Oregon v. Bradshaw, — U.S. —, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the Supreme Court reiterated that its Edwards test applies “after the accused has ‘expressed his desire to deal with the police only through counsel.’ ” 103 S.Ct. at 2834. Collins’ request for counsel at his arraignment did not place his request in the Miranda/Edwards fifth amendment right-to-counsel posture. Collins had already given the police a full tape-recorded confession. He was brought before a magistrate for arraignment the next day; there he asked for a lawyer. Several days later, after the police found out that the recording of Collins’ First Statement was worthless, they advised Collins of that fact. They again read him his Miranda rights, he indicated that he understood them, and he agreed to make another tape recorded statement. He then gave a full account of the crime. The trial court found at Collins’ Jackson-Denno pretrial suppression hearing that Collins had requested an attorney at his arraignment and that preliminarily to both statements he had been fully advised of his constitutional right to an attorney. The trial judge later dictated into the record, in more detail, his findings as to Collins’ request for an attorney and the voluntariness of his two statements. At that time, he made the following findings. [A]t the conclusion of the Jackson-Denno hearing with respect to this defendant the Court found that any statements [Collins] made while being interrogated by police officers in custody were voluntarily made by him without any coercion or threats or any hope of reward, that he was advised of his constitutional rights in accordance with the Miranda decision that he indicated he understood what his rights were and that he did not request the assistance of an attorney during in-custody questioning, and that he made certain voluntary statements which the Court permitted to go to the jury for their consideration. We think it clear that petitioner at no time indicated that he wished to take advantage of his fifth amendment right to silence or to counsel by asking that interrogation cease. Rather, petitioner indicated at arraignment that he desired counsel in the sixth amendment sense, to handle his case. While he did not say exactly why he wanted an attorney, we do know that several days later he was completely willing to talk with the police. If he had not made the general statement to the magistrate that he wanted counsel, we would certainly have no hesitation in declaring that the Second Statement was admissible in evidence. We add only one fact, that at a separate time and place Collins indicated to a magistrate that he wanted to have a lawyer appointed for him, presumably in response to the charges he had heard, with an eye to handling his defense. Justice Marshall wrote in his dissent to the Supreme Court’s denial of certiorari in Johnson v. Virginia, 454 U.S. 920, 102 S.Ct. 422, 424, 70 L.Ed.2d 231 (1981), that the “key question [in determining the validity of a statement made after a request for counsel] is whether petitioner’s waiver of his right to counsel was knowing, intelligent and voluntary.” He also pointed out that “an accused is under no obligation to state precisely why he wants a lawyer.” Id. These principles are both true, but we do not believe that they require us to find Collins’ waiver to have been involuntary in the Edwards sense. Collins did not cut off interrogation with the police at any point to request a lawyer. Nobody told him that he had to talk. Although he had refused to make a statement to the police at the time of his arrest, Collins made a complete, and admittedly valid, confession shortly thereafter. He did not request a lawyer until his arraignment the next day. Collins, unlike Edwards, never gave any indication that he would deal with the police only through a lawyer. While, as Justice Marshall indicated, we cannot hang upon the wording of an accused’s request for counsel, surely from the circumstances of such a request we can find guidance as to the accused’s state of mind, which is the key voluntariness inquiry. In summary, because we have no indication that Collins, at the time of his Second Statement, was told that he had to talk with the officers; because his earlier First Statement was freely given; and because Collins never halted the interrogation or otherwise indicated an unwillingness to talk with the police on either occasion, we find that Collins’ Second Statement was admissible. C. Petitioner contends that Durham’s comments to Styles while petitioner was having intercourse with Delores Lester, referring to other murders Durham had committed, were both inadmissible hearsay and inadmissible evidence of extrinsic criminal activity, and that the remarks petitioner made while the three men were driving back to town following Lester’s murder were inadmissible evidence of extrinsic criminal activity. Petitioner maintains that the admission in evidence of the first group of statements violated the due process and confrontation clauses of the Constitution, and that the admission of the second group violated the due process clause. We examine these two claims in turn. 1. To determine the admissibility of the first group of statements, we must consider the complete factual context in which they were uttered. The relevant scenario began when the three men and Delores Lester arrived at the pecan orchard. There, the men removed the back seat of the car and laid it on the ground. While Collins was having intercourse with Lester on the car seat, Durham pulled out a large knife and approached Styles, who was standing by the car. Pointing the knife at Styles, Durham stated that he intended to kill Lester and, apparently to make his point, bragged that he had killed several other people, including a woman that he had “done this way.” After Collins had raped Lester, Durham, still brandishing the knife, forced Styles to follow suit. Afterwards, Durham planted his knife in the ground by Lester’s head and slapped her in the face, as he too raped her. Durham then ordered Styles to engage Lester again. While Styles was simulating intercourse, he heard Collins say to Durham words to the effect that “You don’t have to kill her, do you?” After Styles concluded, Lester stood up. Durham grabbed her by the hand and began leading her further into the orchard, and she exclaimed “Y’all going to kill me.” Collins started out behind them, but stopped to get the jack from the trunk of the car. Then he followed Durham. Styles, meanwhile, begged the two men to spare her life. Collins’ attorney made timely objection to the introduction in evidence, through Styles’ testimony, of Durham’s statements that he intended to kill Lester and that he had killed before. Counsel argued that these statements constituted hearsay and that their admission would violate his client’s sixth amendment right of confrontation. The trial judge overruled the objection, concluding that the statements were part of the res gestae. The Georgia Supreme Court agreed and observed, in addition, that the statements did not implicate Collins. The Court’s comment implied that their admission, if error, was harmless in any event, because Durham’s statements did not prejudice Collins. Durham’s statements to Styles about others he had killed do indeed appear to have benefitted rather than prejudiced Collins. Collins argues, however, that those statements, together with Durham’s warning to Styles, as the three men drove back to town following the murder, that if Styles went to the police Durham would “put him into everything me and Roger done,” showed him to be “tarred with the same brush” as Durham. Durham’s statements, particularly the references to other murders he allegedly had committed, were conceivably admissible for their truth, but not under the res gestae exception to the hearsay rule. That exception, though provided by Georgia statute (see Ga.Code Ann. § 38-305), has generally fallen out of favor as courts have developed more precise terms with which to define hearsay exceptions. The four current generally prevalent exceptions that used to fall under the label “res gestae” are declarations of present bodily condition, declarations of present mental state or emotion, excited utterances, and present sense impressions. See McCormick on Evidence 686-711 (2d ed. 1972), 4 Weinstein’s Evidence ¶ 1803(1)[01]-(3)[06] (1981). We do not need to decide whether the admission of statements solely for res gestae value violates the due process or confrontation clauses of the Constitution because we find other authority in the law of evidence to admit the statements. Durham’s statements, especially his statement that he intended to kill Delores Lester, were relevant to Durham’s intent or state of mind. Durham’s intent was a key issue in this case. Collins raised the issue in his Second Statement by recanting his earlier confession, that he had killed Delores Lester, and labeling Durham as the murderer. The prosecutor placed the issue before the jury when she introduced the Second Statement into evidence. The lawyers, in their closing arguments to the jury at the conclusion of the guilt phase of the case, fully developed this issue of Durham’s intent. The prosecutor’s theory of the case was that Collins was the prime culprit in the murder. Armed with the car jack, which the fingerprint expert said bore his thumbprint, Collins followed Durham and Delores Lester into the pecan orchard and beat her to death with the jack. Collins had freely confessed to the murder in his First Statement to the deputy sheriffs, following his mother’s visit to the jail the day of his arrest. When he later learned that the tape recorder had failed to record his First Statement, Collins seized the opportunity to change his story. The defense countered by arguing that Collins’ Second Statement presented the truth, that Durham was the murderer. To buttress his argument, Collins’ attorney pointed to Durham’s comment to Styles that he (Durham) intended to kill Lester. The statements to which Collins now objects were vital to his defense; they gave it credence. It is plain that the issue of Durham’s intent was taken into account by both parties as they structured their cases. Both Styles’ testimony and Collins’ thumbprint on the jack established Collins’ presence at the orchard and specifically at the scene of the killing; Collins’ only available defense was that Durham, rather than he, had done the killing. Durham’s statements were admissible as nonhearsay to show his intent, not for their truth. In addition, it could be argued that Durham’s statement that he intended to kill Lester fell under the “declarations of present mental state” exception to the hearsay rule. His comment that he had killed before, including the other woman that he had “done this way,” supported that statement and thus constituted indirect evidence of a present mental state. Collins argues that even though authority can be found in the rules of evidence to justify the admission of Durham’s statements into evidence, their introduction nevertheless violated his sixth amendment right to confront Durham. While the Supreme Court has not indicated that the right to confrontation is exactly coextensive with, the hearsay rules, see California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1970), it is rare that evidence either not hearsay or admissible under a hearsay exception has been excluded as violating the defendant's right of confrontation. The value of confronting a witness lies in testing the trustworthiness of his testimony. Evidence is admitted under the four “res gestae exceptions” to the hearsay rule, even when the declarant is available to testify, for the very reason that it is inherently trustworthy. Therefore, if the statements were admissible as an indirect declaration of present mental state, Collins’ right to confront Durham was not violated. If we consider Durham’s out-of-court statements not as hearsay, i.e., admitted for their truth, but rather as admitted to show Durham’s intent, Collins had no need to confront Durham to test their trustworthiness. The statements were offered only to show that Durham said them. Styles was testifying only to the fact that he heard the statements, and he could be cross-examined as to whether he had heard them. Therefore, the admission of Durham’s statements could not have violated the confrontation clause. Petitioner’s final objection to Durham’s statements is that their admission into evidence violated his right to due process. This claim is not convincing. The evidence was clearly probative of Durham’s intent and admissible on that issue. The statements were unduly prejudicial only if their contents were taken by the jury as true, if they implicated Collins in the homicides Durham claimed he had committed, or if they showed Collins to be a person of bad character. We balance the probative value against the prejudicial effect of these statements, and then decide whether their admission constituted a due process violation. In evaluating whether an admission of evidence constituted a due process violation, we review the record “only to determine whether [any error we find] was of such magnitude as to deny fundamental fairness to the criminal trial.” Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.), cert. denied 429 U.S. 850, 97 S.Ct. 139, 50 L.Ed.2d 124 (1976). To show a denial of fundamental fairness, any error must be “material in the sense of a crucial, critical, highly significant factor.” Id. (citations omitted). We find no denial of fundamental fairness in the admission of these statements for two reasons. First, the evidence before the jury did not indicate that Collins had been involved in any way in Durham’s previous transgressions, and the prosecutor, in argument, made no attempt to convince the jury that he had been. Second, Collins drew on the statements to support his theory of defense, that Durham, alone, murdered Delores Lester. Thus, the prejudicial effect, if any, of the statements was minimal, and certainly was not enough to outweigh their probative value to an extent that would call into question the fundamental fairness of the trial. 2. The admission in evidence of the second challenged group of statements did not violate the due process clause. Those statements were made by Collins to Styles in the car ride home, to the effect that Collins had killed more people than he could count, and that he had beaten a person at a liquor store. The statements had probative value. They were admissions by Collins, admissible for all purposes. Collins had the opportunity to explain the statements away and to cross-examine Styles about their utterance. We cannot say that the prejudicial effect of these statements so outweighed their probative value that they were a “crucial, critical, highly significant factor” calling into question “the fundamental fairness” of petitioner’s trial. Hills v. Henderson, supra. III. A. Petitioner’s first challenge to the sentencing phase of his trial concerns the exclusion of a prospective juror, Janette Gurr, under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). He contends that the exclusion was improper because Mrs. Gurr did not make “unmistakably clear,” as Witherspoon requires, that: (1) [she] would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them or (2) [her] attitude toward the death penalty would prevent [her] from making an impartial decision as to the defendant’s guilt. 391 U.S. at 522-3 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original). In this case, after extensive discussion aimed at pinning down her feelings about the death penalty, Mrs. Gurr gave a bottom-line response that regardless of the circumstances she could not vote to impose the death penalty. Her final responses were as follows: The Court: I think, Mrs. Gurr, as I understand what you are saying, and I don’t want to put words into your mouth, but it seems like to me you are saying that you would do your best to consider whatever you were supposed to, but that you really don’t think that you could impose the death penalty? Mrs. Gurr: No, sir, I’m afraid I couldn’t. The Court: Is that right? Mrs. Gurr: Yes, sir. The Court: And that would be regardless of the circumstances, you’re saying? Mrs. Gurr: I’m afraid I just could not do that. This response was clearer than those petitioner points to as insufficient to meet the Witherspoon criteria in Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied —U.S. —, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983) (one juror felt that there were “times when the death penalty is warranted,” other juror stated that she was “confused”), Granviel v. Estelle, 655 F.2d 673, 677 (5th Cir.1981), cert. denied 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982) (juror “didn’t think [he] could” impose the death penalty), or Moore v. Estelle, 670 F.2d 56 (5th Cir.), cert. denied 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1375 (1982) (juror didn’t “know that [he] would ever feel good about [imposing the death penalty]”). Petitioner contends that the words “afraid I just could not” were equivalent to “thinking” one could not. In context, however, general usage of the style “I’m afraid” indicates not that one is in a state of fear, but rather that one is reluctant to admit a fact that may be displeasing. A statement that someone is “afraid I can’t” perform an act does not mean that he may or may not perform it; nobody would expect him to perform it. Juror Gurr’s statement is the kind of statement that we give the trial judge discretion in weighing. Unlike the statements in the cases petitioner cites, this statement is as a matter of law capable of being uttered with sufficient force to justify a Witherspoon exclusion. The trial judge had the opportunity to notice whether the statement was in fact so uttered and concluded that it was. His findings of fact as to a juror’s impartiality, in light of the Wither-spoon criteria, are presumptively correct. 28 U.S.C. § 2254(d) (1976); Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). Petitioner further contends that the veniremen did not receive the necessary questioning to allow their positions vis-a-vis the Witherspoon criteria to appear. This is not supported by the transcript of the jury voir dire. In Mrs. Gurr’s case, she was repeatedly asked questions designed to elicit her feelings on both aspects of Witherspoon, namely, whether her ability to determine guilt would be affected by her scruples against the death penalty, and whether she would automatically refuse to vote for the death penalty, regardless of what the evidence might reveal. B. Petitioner contends that prosecutorial misconduct during the closing arguments of counsel at the sentencing phase of the trial was so prejudicial that it denied his due process right to a fair sentencing proceeding and requires that his death sentence be vacated. On direct appeal from his convictions and sentence, petitioner claimed that the prosecutor, in arguing to the jury, improperly commented on several matters not in evidence: she stated that every day the newspapers report crimes like those petitioner committed in this case; that there were no statistics to support the argument that the death penalty does not deter crime; and that petitioner acted like an animal as he raped and murdered Delores Lester. The Georgia Supreme Court found no error in these comments. In his state habeas corpus petition, petitioner alleged that pros-ecutorial misconduct occurred at both the guilt and sentencing phases of his trial, challenging more of the prosecutor’s conduct than he did on direct appeal. We review the portion of the claim petitioner raised on direct appeal, but we do not review the portion he raised only in his state habeas petition because he abandoned that portion during the litigation of his habeas petition in the Butts County Superior Court. In order to prevail on his due process claim raised on direct appeal, petitioner must show that “the prosecutor’s actions were so egregious as to render the trial fundamentally unfair.” Hance v. Zant, 696 F.2d 940, 951 (11th Cir.1983). The first portion of the prosecutor’s alleged misconduct challenged on direct appeal was this statement: “Now arguments have been put forth against capital punishment in that it does not deter crime. But that argument cannot be supported by statistics or anything else.” Petitioner points out, correctly, that neither side presented any statistical evidence to the jury concerning the deterrent effect of capital punishment on crime. Therefore, he argues, the prosecutor’s reference to such “evidence” was improper. By presenting this claim, petitioner poses three questions: first, whether the jury was entitled to consider the need to deter crime, particularly murder, in deciding what sentence to recommend in petitioner’s case; second, whether, in the absence of empirical evidence in the record that capital punishment deters crime, the jury was precluded from considering deterrence in recommending the death sentence; and, third, whether the prosecutor’s remark that there were no statistics to support the argument that the death penalty has no deterrence effect somehow rendered the sentencing proceeding fundamentally unfair. The answer to the first question is clear. The U.S. Constitution does not forbid a sentencer to hear argument from counsel on the need for a deterrent sentence and to fashion a sentence to satisfy that need. This is implicit in United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978), and Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). In Williams, the Supreme Court considered the type of evidence a sentencer may appropriately take into account in formulating a sentence. There, the jury had recommended that Williams, on trial in a New York state court for a capital offense, be given a life sentence. The judge, relying in part on evidence not adduced at trial that his probation officer had given him, sentenced Williams to death. Williams appealed, claiming that his sentence was invalid because the sentencing judge had denied him due process by relying on information supplied by witnesses whom he had not had the opportunity to confront or cross-examine. The Supreme Court found the judge’s conduct inoffensive to the Constitution, stating that “[t]he due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure.” Id. at 251, 69 S.Ct. at 1085. The Court cited with apparent approval Judge Ulman’s formulation of the four factors a judge should consider in imposing a sentence: “1st. The protection of society against wrongdoers. “2nd. The punishment — or much better — the discipline of the wrong-doer. “3rd. The reformation and rehabilitation of the wrong-doer. “4th. The deterrence of others from the commission of like offenses. “It should be obvious that a proper dealing with these factors involves a study of each case upon an individual basis.” Id. at 248, 69 S.Ct. at 1084, citing Glueck, Probation and Criminal Justice 113 (1933) (emphasis added). The Supreme Court, in Grayson, reinforced its approval of general deterrence as a constitutionally proper sentencing consideration. There, the district judge, in stating his reasons for imposing a sentence, made the following comment: “In my view a prison sentence is indicated, and the sentence that the Court is going to impose is to deter you, Mr. Gray-son, and others who are similarly situated. Secondly, it is my view that your defense was a complete fabrication without the slightest merit whatsoever. I feel it is proper for me to consider that fact in the sentencing, and I will do so.” 438 U.S. at 44, 98 S.Ct. at 2612 (emphasis omitted). The court of appeals reversed because the judge had considered false testimony the defendant had given at trial. The Supreme Court in reinstating the sentence addressed what the district judge could properly have considered in fashioning the defendant’s sentence. The Court concluded that the judge could consider the defendant’s false testimony, basing its decision in major part on the broad purposes served by the federal indeterminate sentencing model. One of these purposes was general deterrence. The Court noted that the Congress, in fashioning the federal sentencing model, had declined to opt for a pure rehabilitative model (where general deterrence is, arguably, irrelevant) in which “ ‘convicts [regardless of the nature of their crime] can never be rightfully imprisoned except upon proof that it is unsafe for themselves and for society to leave them free, and when confined can never be rightfully released until they show themselves fit for membership in a free community.... This extreme formulation, although influential, was not adopted unmodified by any jurisdiction. See Tappan, [“Sentencing Under the Model Penal Code, 23 Law & Contemp. Probs. 528, 531-33 (1958)] .... “The influences of legalism and realism were powerful enough ... to prevent the enactment of this form of indeterminate sentencing. Concern for personal liberty, skepticism concerning administrative decisions about prisoner reformation and readiness for release, insistence upon the preservation of some measure of deterrent emphasis, and other such factors, undoubtedly, led, instead, to [both state and federal] system[s] — indeed, a complex of systems — in which maximum terms were generally employed.” Id., at 530. 438 U.S. at 46-47, 98 S.Ct. at 2613-14 (citations omitted) (emphasis added). The Court indicated no qualms whatsoever about the portion of the district judge’s comments it quoted, that referred to the deterrent purposes of his sentence. Given the Supreme Court’s treatment of general deterrence in these two cases, we cannot conclude that the need for general deterrence is an unconstitutional sentencing consideration. The answer to the second and third questions petitioner poses are equally clear. A sentencer need not have before it proof that a given sentence will deter others from committing crime, particularly the crime the defendant committed, in order to base that sentence in part on a perceived need for general deterrence. Criminal sanctions have historically been justified in part on the theory that they coerce conformity with the law; that without them, there are many who would disobey the law. Such persons obey the law not as a matter of conscience but in order to avoid the sanctions that will be imposed if they disobey. That the prosecutor does not demonstrate empirically the deterrent effect of a sentence should not prevent the State from employing general deterrence as an acceptable sentencing policy. Empirical evidence of the deterrent effect of a sentence would be difficult, if not impossible, to generate with sufficient particularity clearly to guide the sentencer’s determination in any given case. We decline to limit the general deterrence consideration to those cases in which its effectiveness can be demonstrated. Under the sentencing model employed by Georgia in capital cases the jury is given the task, subject to full Georgia Supreme Court review, of fashioning state sentencing policy. In discharging this task, the jury functions as a fact finder in determining the presence of aggravating and mitigating circumstances, but acts as a policy maker in determining whether a sentence of death or life imprisonment should be imposed. Therefore, it is singularly inappropriate to restrict the bounds of permissible argument to those bounds which apply at the guilt determining phase. The jury is no longer being asked to determine what has taken place, but rather what justice demands that society perform in response. The vastness of the sorts of arguments that appropriately may be brought to bear on this question are such that it would make a mockery out of the sentencing function to require evidentiary support for every argument presented. Thus, we will not restrict on due process grounds the arguments the jury may receive in carrying out its sentencing function to those based on eviden-tiary submissions. The prosecutor, here, told the jury that the argument that the death penalty has no deterrent effect cannot be supported statistically. This allusion to the lack of statistical evidence did not flaw the argument under the due process clause. The judge emphatically instructed the jury that argument of counsel was not evidence. Given that the subject matter of the argument was appropriate, counsel’s bald assertion that statistical support existed for the argument, or did not exist for the converse of the argument, did not render the sentencing procedure fundamentally unfair. The second portion of the prosecutor’s argument petitioner challenged on direct appeal to the Georgia Supreme Court was the following: We do not know how many criminals are deterred by capital punishment, no one can know, but what we can see every day you pick up the newspaper is that crimes of this sort, the sort that Roger Collins inflicted on Deloris Luster [sic], happen every day, that the life of a human being, lives of human beings are sacrificed every day with as little concern as the life of an animal, and that is how Roger Collins killed Lois Luster [sic], like an animal. The first part of this argument, like the preceding argument, did not offend the due process clause. It was an abstract reference to matters within the jury’s common knowledge, concerning a permissible sentencing consideration, general deterrence. The second part of this argument, that Collins killed Lester like “an animal,” arose from the evidence presented at trial and was directed to the retributive purpose of a sentence. Since retribution for the offender’s crime is certainly a constitutionally acceptable sentencing objective, and since evidence of the brutality of the crime, supporting that objective, was shown at trial, petitioner’s challenge to this portion of the prosecutor’s argument is meritless. The argument did not render the trial fundamentally unfair. C. Petitioner contends that inadequate sentencing phase instructions and inadequate appellate review of those instructions by the Georgia Supreme Court violated his eighth and fourteenth amendment rights in two ways. First, the trial judge did not define sufficiently the second statutory aggravating circumstance charged to the jury, and the Georgia Supreme Court did not cure this error by its independent review of petitioner’s sentence. Second, the trial judge did not clearly inform the jury of its option to recommend a life sentence, and the Georgia Supreme Court likewise did not cure this error by its independent sentence review. 1. Petitioner argues that Ga.Code Ann. § 27-2534.1(b)(7) was applied unconstitutionally in this case. See, e.g., Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). We do not disagree with Judge Tjoflat’s conclusion that, under Godfrey, the (b)(7) aggravating circumstance was not unconstitutionally applied in this case. In our view, however, we need not reach this issue because petitioner does not argue that the other aggravating circumstance found by the jury in this case, Ga.Code Ann. § 27-2534.1(b)(2) (murder committed in the course of another felony), was applied improperly or unconstitutionally- As we read Zant v. Stephens, — U.S. —, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), and Wainwright v. Goode, — U.S. —, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983), as long as one valid statutory aggravating circumstance exists, a federal habeas court should not grant relief unless the “evidence or factor in question was constitutionally inappropriate.” Alvord v. Wainwright, 725 F.2d 1282 at 1286 (11th Cir.1984). Even if the evidence before the trial court in this case would not have supported its finding of the (b)(7) circumstance, the evidence by no means was constitutionally inappropriate. We can envision few capital cases in which the circumstances of the crime are not before the jury to consider; and, given the admittedly proper finding of the (b)(2) circumstance in this case, we attach no constitutional importance to the possibility that the jury may have incorrectly labeled the evidence before it as a statutory aggravating circumstance. See Zant, 103 S.Ct. at 2749 (improper “statutory label” “cannot fairly be regarded as a constitutional defect in the sentencing process”). Thus, this contention does not afford Collins a basis for relief. 2. Petitioner contends that the trial judge’s instructions were inadequate to inform the jury of its option to recommend life imprisonment. In support of this contention, petitioner cites Goodwin v. Balkcom, 684 F.2d 794 (11th Cir.1982), cert. denied — U.S. —, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983); Spivey v. Zant, 661 F.2d 464 (5th Cir. Unit B 1981), cert. denied 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); and Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir.1978). Chenault, in dictum, indicated that the trial judge must instruct the jury on mitigating circumstances and on its option to recommend life imprisonment. Id. at 448. Goodwin and Spivey enforced this dictum. In both cases, the trial judge’s instructions failed to mention mitigating circumstances and referred only briefly to a life sentence as a sentencing option under Georgia law. The jury, therefore, did not know that it could recommend a life sentence even if it found an alleged statutory aggravating circumstance. The charge in this case correctly informed the jury of its options; in relevant part, it read as follows: The law of this state provides that the punishment for murder shall be death or life imprisonment.. . . 5k * * * * >k In considering the death penalty, however, you should consider whether there are mitigating circumstances that would incline one to a recommendation of life imprisonment in spite of the aggravating circumstances. Mitigating circumstances are those which do not constitute a justification or excuse for the offense but which in fairness and mercy may be considered as extenuating or reducing the degree of moral culpability or blame. The youthful age of the defendant is, for example, a mitigating factor which you might consider. Therefore, if you find that one or more of the statutory aggravating circumstances existed beyond a reasonable doubt you could recommend the death penalty or you could recommend life imprisonment in accordance with my instructions. ... Now if you find one or both of the alleged statutory aggravating circumstances existed but you do not choose to recommend the death penalty because of mitigating circumstances or otherwise the form of your verdict would be, “We, the jury, fix the punishment of the defendant at life imprisonment.” (emphasis added.) While the charge did not advise the jury in explicit terms that though one or both aggravating circumstances and no mitigating circumstances were present it could still recommend life imprisonment, we find that the “or otherwise” language presented this alternative, and that the charge as a whole instructed the jury adequately that life imprisonment was an option. This charge was clear enough to be constitutional. D. Petitioner argues that the proportionality review conducted by the Georgia Supreme Court in his case was constitutionally inadequate because the Georgia court failed to compare his case with other cases with similar facts and circumstances. The Supreme Court recently held that the Constitution does not require a state supreme court to conduct a proportionality review as long as the state’s procedures are not “so lacking in other checks on arbitrariness that it would [otherwise] not pass constitutional muster .... ” Pulley v. Harris, — U.S. —, 104 S.Ct. 871, 873, 79 L.Ed.2d 29 (1984). Like the California system at issue in Pulley and the Florida system at issue in Alvord v. Wainwright, 725 F.2d 1282 at 1301 (11th Cir.1984), it appears clear that the Georgia system contains adequate “checks on arbitrariness” to “pass muster” without proportionality review. See, e.g., Zant v. Stephens, — U.S. —, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (describing Georgia system). Nevertheless, Georgia has chosen to conduct such a review, see Ga.Code Ann. § 27-2537(c)(3); therefore, the Georgia review can be attacked as applied in a given case. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (equal protection/due process right to counsel on first appeal); Alvord, 725 F.2d at 1301. We find no merit, however, in petitioner’s attacks on the Georgia Supreme Court’s method of conducting this proportionality review. We have carefully reviewed the briefs and record, and many of petitioner’s objections assume that the Constitution requires Georgia to conduct a proportionality review, which is not the case. Collins raises some issues that can be characterized as equal protection challenges; however, we have often addressed similar contentions, see, e.g., Moore v. Balkcom, 716 F.2d 1511, 1517 (11th Cir.1983); Henry v. Wainwright, 721 F.2d 990, 997 (5th Cir.1983), and Collins does not present a claim different from the ones previously resolved by our cases. In Moore v. Balkcom, we held that it is not the role of the federal courts to dictate to the state courts the method of conducting a proportionality review so long as the state supreme court’s review and result do not rise to the level of unconstitutional action. 716 F.2d at 1517-18; see also Maggio v. Williams, — U.S. —, 104 S.Ct. 811, 78 L.Ed.2d 43 (1983). The review given in this case clearly was not unconstitutional. IV. Petitioner claims that he was denied his sixth, and fourteenth, amendment right to the effective assistance of counsel at both the guilt and sentencing phases of his trial. The district court summarily denied this claim. Petitioner asks us either to sustain this claim as a matter of law or to remand it to the district court for an evidentiary hearing. A. The state habeas court conducted an evi-dentiary hearing on petitioner’s ineffe