Full opinion text
,R. LANIER ANDERSON, III, Circuit Judge: INTRODUCTION This case was taken en banc principally to consider two of the several constitutional claims asserted by appellant William Brooks. In Section One of this opinion, we discuss the claim that the instructions on malice at Brooks’ trial improperly shifted the burden of proof in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We conclude that there was a Sandstrom violation, and that the error was not harmless beyond a reasonable doubt. In Section Two of this opinion, we discuss Brooks’ claim that the prosecutor’s argument during the sentencing phase of his capital trial rendered the sentencing phase fundamentally unfair. We reject Brooks’ argument in this regard, and conclude that his sentencing phase was not fundamentally unfair. In addition to the two issues which this opinion will discuss, Brooks asserted six other constitutional claims: (1) that the failure to grant a change of venue was improper; (2) that the introduction of non-statutory aggravating circumstances during the sentencing phase of the trial was impermissible; (3) that the trial court restricted the admission of mitigating testimony; (4) that the trial court’s instructions on aggravating circumstances were improper; (5) that jurors were improperly excluded because of opposition to the death penalty; and (6) that the district court’s denial of an evidentiary hearing was incorrect. The panel declined to grant relief on any of these six issues. Brooks v. Francis, 716 F.2d 780 (11th Cir.1983), vacated for reh’g en banc, 728 F.2d 1358 (11th Cir.1984). With respect to each of these six issues, we reinstate Parts IV, VI, VII, VIII, X and XI of the panel opinion. Brooks was convicted of armed robbery, rape, kidnapping, and murder by a Muscogee County, Georgia, jury. .The evidence established that Brooks-abducted Carol Jeannine Galloway from her home, forced her against her will to drive away with him in her yellow Fiat automobile, took her to a secluded area and raped her. All this was established by Brooks’ own written confession, and was corroborated by independent evidence. In his confession, Brooks also stated that, after the sexual intercourse and after Galloway had put her clothes back on, she started screaming, and at that point he aimed his pistol at her to make her stop screaming, and that the pistol went off and hit her. Brooks fled at that point, and Galloway bled to death. Additional facts relevant to the two issues discussed in this opinion will be set out later as appropriate. Brooks was sentenced to death on the murder charge, to life imprisonment on the kidnapping and rape charges, and to 20 years imprisonment on the armed robbery charge. All convictions and sentences were affirmed by the Georgia Supreme Court on direct appeal. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979). On writ of certiorari to the United States Supreme Court, the Court vacated the decision of the Georgia Supreme Court insofar as it upheld Brooks’ death sentence and remanded the case for further consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Brooks v. Georgia, 446 U.S. 961, 100 S.Ct. 2937, 64 L.Ed.2d 821 (1980). On remand, the Supreme Court of Georgia reaffirmed the sentence of death. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S.Ct. 2000, 68 L.Ed.2d 312 (1981), petition for reh’g denied, 452 U.S. 932, 101 S.Ct. 3069, 69 L.Ed.2d 433 (1981). Brooks sought and was denied collateral relief in the Georgia courts, and the Supreme Court again denied certiorari. Brooks v. Zant, 459 U.S. 882, 103 S.Ct. 183, 74 L.Ed.2d 148 (1982), petition for reh’g denied, 459 U.S. 1060, 103 S.Ct. 482, 74 L.Ed.2d 627 (1982). Brooks then filed the instant petition for habeas corpus relief in the United States District Court for the Middle District of Georgia. The district court denied relief. On appeal, a panel of this court granted relief only on the issue involving the prosecutor’s argument during the sentencing phase. Brooks v. Francis, 716 F.2d 780 (11th Cir.1983). A petition for rehearing en banc was granted, thus vacating the panel opinion. 728 F.2d 1358 (11th Cir.1984). SECTION ONE: SANDSTROM ISSUE 1. WAS THERE AN IMPERMISSIBLY BURDEN-SHIFTING INSTRUCTION ÜNDER SANDSTROM! Brooks was charged in a four-count indictment, the first count of which was malice murder. Brooks argues that the trial judge’s instruction regarding malice was impermissibly burden-shifting under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The relevant part of the instruction reads as follows: The law of the State of Georgia says that a person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied, the law says, when no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart. The law, ladies and gentlemen, presumes every homicide to be malicious until the contrary appears from circumstances of alleviation, excuse, or justification, and it is encumbent upon the accused to make out such circumstances to your satisfaction unless they appear from the evidence produced against him. (Emphasis added). This instruction, which placed upon the defendant the initial burden of disproving malice, is virtually identical to the one found impermissible in the recent en banc case of Davis v. Kemp, 752 F.2d 1515, 1519-20 (11th Cir.1985) (en banc). The analysis employed in our Davis opinion was recently confirmed by the similar analysis used by the Supreme Court in Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). The instruction here is a mandatory rebuttable presumption, as were the instructions found impermissible in Davis and Franklin. Davis, 752 F.2d at 1517-20; Franklin, — U.S. at---,---, 105 S.Ct. at 1970-1971, 1972-1973. We conclude that the instruction here impermissibly shifted the burden of proof with respect to malice, a necessary element of the murder charge against Brooks. The state argues that the malice instruction, when read in conjunction with the entire jury charge, did not “so infect the entire trial that the resulting conviction violate[d] due process.” Cupp v. Naught-en, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). The state’s argument is a subtle one, and depends upon several building blocks. First, the state correctly notes that malice murder in Georgia is defined as an intentional killing done without provocation or justification. Lamb v. Jernigan, 683 F.2d 1332, 1336 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983). Second, the state argues that there was in this case no hint of provocation or justification, so that the only sub-element of malice which might possibly have been in dispute was intent. Third, the state argues that a separate intent instruction was given, which properly instructed the jury that intent “may be inferred” from all the facts and circumstances. Thus, the state argues that the jurors would have understood the malice instruction to refer to the earlier intent charge for a definition of the intent component of malice; and, the argument continues, the improper burden-shifting presumption in the malice charge would have affected only the sub-issues of provocation and justification, and not the sub-issue of intent. The problem with the state’s argument is that the malice instruction does not either expressly or impliedly refer for a definition of intent to the earlier intent instruction. Moreover, the intent instruction appeared a full six pages prior to the malice instruction. After a careful review of the malice instruction, in the context of the entire charge including the earlier intent instruction, we cannot discount the possibility that a reasonable jury could have understood the instructions to create an unconstitutional presumption of malice and its intent component. See Franklin, — U.S. at-, -n. 8, 105 S.Ct. at 1971, 1975 n. 8. As the Supreme Court said in Sandstrom, “we have no way of knowing that ... [the defendant] was not convicted on the basis of the unconstitutional instruction.” Sandstrom, 442 U.S. at 526, 99 S.Ct. at 2460; accord, Franklin, — U.S. at -, 105 S.Ct. at 1975 n. 8. At best, the contradictory instructions as to intent and malice may have confused the jury as to the proper burden of proof. See Franklin v. Francis, 720 F.2d 1206, 1212 (11th Cir.1983), aff'd, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (— U.S. -, 105 5. Ct. at 1975: “Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity”). For the same reasons, we reject the state’s argument that the unconstitutional malice instruction was cured by the general instructions establishing the presumption of innocence and the state’s burden of proving every element of the crime. This is the same argument that was expressly rejected by the Court in Franklin and Sandstrom. As the Supreme Court noted, the jury might have relied upon the improper burden-shifting presumption either as a means for rebutting the presumption of innocence, or as a means by which proof beyond a reasonable doubt could be satisfied. Franklin, — U.S. at-, 105 S.Ct. at 1973; Sandstrom, 442 U.S. at 518 n. 7, 99 S.Ct. at 2456 n. 7. After a careful review of the entire jury charge, we find that a reasonable juror could well have concluded that Brooks bore the burden of proof on the necessary element of malice. We thus conclude that the instruction violates Sandstrom. II. WAS THE SANDSTROM ERROR HARMLESS? The state maintains that even if the malice instruction was impermissibly burden-shifting under Sandstrom, this error was harmless. The Supreme Court has expressly left open the question whether a Sandstrom error can ever be harmless. Franklin, — U.S. at -, 105 S.Ct. at 1977. However, our en banc court in Davis recently reaffirmed for this circuit that a Sandstrom error, like most other errors of constitutional magnitude, can be held harmless beyond a reasonable doubt. Davis v. Kemp, 752 F.2d at 1520-21; see also McCleskey v. Kemp, 753 F.2d 877, 902 (11th Cir.1985) (en banc). Davis identified two situations where a harmless error analysis is appropriate: (1) where the evidence of the defendant’s guilt was overwhelming; and (2) where the instruction concerned an element of the crime which was not in issue at trial. Davis, 752 F.2d at 1521. In this case, the evidence did create an issue with respect to malice; thus, we focus on the first situation. Davis clarified the fact that this first prong should properly focus on whether the evidence of intent, rather than the more inclusive issue of guilt, is overwhelming. The evidence adduced at Davis’ trial overwhelmingly indicated “that whoever killed the victim did so with intent and malice.” Davis, 752 F.2d at 1521. Although the evidence that Davis was the killer may not have been overwhelming, in light of Davis’ testimony to the contrary, the court stated succinctly that the appropriate inquiry was whether the evidence of intent was overwhelming, not whether there was overwhelming evidence that Davis was the guilty killer: Although some opinions talk in terms of overwhelming evidence of guilt, (which will obviously always include the necessity of overwhelming evidence of intent), the analysis in the text makes it clear that the crucial inquiry relates to whether or not there is overwhelming evidence of intent. See Connecticut v. Johnson, 460 U.S. [73] at 86 [103 S.Ct. 969 at 977, 74 L.Ed.2d 823] (Blackmun, J.) and at 90, 96, 97, 99, 101 [103 S.Ct. at 979, 982, 983,’ 984, 985] (Powell, J.). The jury in this case concluded that Davis was the killer, and that conclusion could not have been affected by the erroneous instruction. Thus, overwhelming evidence that Davis was the killer is not required. Davis, 752 F.2d at 1521 n. 10 (emphasis in original); accord, Franklin v. Francis, 720 F.2d 1206, 1212 (11th Cir.1983), aff'd, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (— U.S. at-, 105 S.Ct. at 1977: affirming this “court’s conclusion that the evidence of intent was far from overwhelming ...”). Davis also emphasized that the nature of the defense at trial is an important factor in assessing whether there is overwhelming evidence of intent. In Davis, the thrust of the defense was Davis’ non-involvement in the killing, and the defense made no effort to rebut the overwhelming evidence that whoever killed the victim did so with intent and malice. While intent remained at issue in the sense that it was not conceded and the burden of proof remained on the state, the Davis court expressly considered as important the fact that the defense did not contest the issue of intent, thus leaving unrebutted the overwhelming evidence that the killing was intentional. The foregoing discussion of Davis stands in contrast to the trial in this case. Brooks presented what can best be termed a “hybrid” defense. His lawyer, like most thorough and competent defense lawyers, cross-examined most of the state’s many witnesses in an attempt to undermine their credibility, recall and perception of events. Unquestionably, the major objective of the defense was to cast blame on another man who was arrested shortly after the crimes as a material witness and who testified for the state at trial. Brooks’ theory in this regard was that the failure of some witnesses to positively identify Brooks, and those witnesses’ inclinations to identify the other man, tended to exonerate Brooks. Brooks also attempted to show that the shirt found at the scene of the crimes would have fit the other man, a man allegedly much larger than himself. It is true that the thrust of defense counsel’s closing argument, in the face of overwhelming evidence to the contrary, was that a reasonable doubt as to Brooks’ guilt had been raised by reference to the evidence concerning the other man. However, unlike the situation in Davis, Brooks’ intent to kill was clearly put in issue at trial. The state relied heavily on a confession which Brooks gave to the police in which he admitted kidnapping, raping, robbing, and killing Carol Galloway. In fact, the only evidence adduced at trial concerning the fact of the killing itself was derived from Brooks’ confession. In the confession, Brooks stated that after he raped the victim, he pointed his pistol at her to keep her from screaming and the pistol “went off.” Brooks never conceded that he intended to kill and he pled not guilty to the charge of malice murder. Indeed, the prosecutor in his closing argument explicitly referred to the accident defense, urging the jury to disbelieve it: Now, one other thing [the judge] is going to charge you on, in [Brooks’] statement ..., he says that she was saying let me go, and screaming, and he took his gun out and pointed it at her, tried to make her hush, you will recall that, and that he pulled the hammer back, and the gun went off. He doesn’t say it was an accident, but he leaves that implication. And, the Court is going to charge you on accident. We say to you when you are in that kind of situation, and you’ve got your finger on the trigger and you point the gun at somebody, you pull the hammer back, it ain’t no accident. Significantly, the trial court did charge the jury on accident. Finally, in briefing this case before the panel, the state acknowledged that Brooks’ defense to the malice murder charge was one of accident. The state argued that the facts and circumstances of the case properly led the jury to the conclusion that Brooks had acted intentionally, but recognized that if the jury chose to believe Brooks’ version it would have exonerated him of the charge of malice murder. Acknowledging, as we must, that the accident issue was squarely before the jury and that Brooks’ statement indicating that the gun went off unintentionally, if believed, would have exonerated him of the charge of malice murder, we review the case to see if the Sandstrom error was harmless beyond a reasonable doubt. The facts adduced at trial tended to show that Brooks abducted Carol Jeannine Galloway from her home and drove away with her in an automobile. In a statement to police, Brooks confessed, as indicated above, that he had kidnapped, raped, robbed, and killed Galloway. The statement strongly implied, however, that the killing was accidental. He pointed the gun at Galloway, he stated, to scare her into being quiet because she had begun to scream after the rape. Brooks said that at that point the gun simply “went off” and killed Galloway. The evidence indicates that Galloway died of one gunshot to the neck. Brooks did admit in his statement to the police that after Galloway fell to the ground he “got scared” and fled the scene of the crimes. In support of his argument that the Sandstrom error was not harmless, Brooks cites the case of Franklin v. Francis, 720 F.2d 1206, 1208-12 (11th Cir.1983), aff'd, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). In Franklin, the defendant admitted that he fired the gun which killed the victim. The defendant arrived at the victim’s home, with a woman he had kidnapped, and demanded the keys to the victim’s car at the threshold of the victim’s home. After the demand, the victim proceeded to slam the door in the defendant’s face at which time, the defendant testified, the gun simply “went off,” accidentally killing the victim. The evidence showed that the bullet travelled through the door before killing the victim. The defendant then fired a second shot into the ceiling. The court held that the Sandstrom error could not be considered harmless: [The defendant’s] only defense was that he did not have the requisite intent to kill. The facts did not overwhelmingly preclude that defense. The coincidence of a first shot with the slamming of the door, the second shot’s failure to hit anyone, or take a path on which it would have hit anyone, and the lack of injury to anyone else all supported the lack of intent defense. A presumption that Franklin intended to kill completely eliminated his defense of “no intent.” Because intent was plainly at issue in this case, and was not overwhelmingly proved by the evidence ..., we cannot find this error to be harmless. Franklin v. Francis, 720 F.2d at 1212. The Supreme Court, without deciding the question whether a Sandstrom error can ever be harmless, has recently affirmed the decision in Franklin, by explicitly relying on our “court’s conclusion that the evidence of intent was far from overwhelming ____” Francis v. Franklin, — U.S. at -, 105 S.Ct. at 1977. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), sets out the standard by which most constitutional errors should be considered harmless. Under Chapman, a criminal conviction must be reversed if the appellate court cannot say “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 24, 87 S.Ct. at 828. In applying Chapman, we must look at the constitutional error involved. The instruction as to malice stated that “[t]he law ... presumes every homicide to be malicious until the contrary appears from the circumstances of alleviation, excuse or justification____” (Emphasis added). Thus, the jury was instructed that it was required by law to presume that Brooks acted maliciously because a bullet from the gun he was holding caused the death of Carol Galloway. Brooks was thus forced into the position of having to disprove malice, an essential element of malice murder under Georgia law. This the state may not do. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (state has burden of proving every element of the crime charged beyond a reasonable doubt). Moreover, the burden of proof was placed upon Brooks on what was in fact the essential element in Brooks’ case, since the evidence of Brooks’ participation in the kidnapping, robbery, rape, and even the killing was otherwise overwhelming. Brooks v. Francis, 716 F.2d 780, 794 (11th Cir.1983), vacated for rehearing en banc, 728 F.2d 1358 (1984). As reflected by Brooks’ statement to the police, it was the only issue, in practical effect, subject to dispute with respect to the malice murder charge. Of course, the jury was free to discredit Brooks’ statement as to the accidental nature of the killing. Because of the erroneous charge, however, we cannot determine whether the jury disbelieved Brooks, or whether it merely applied the erroneous presumption that every homicide is malicious. Brooks’ statement was the only direct evidence as to whether the killing was accidental or malicious. The jury could reasonably have inferred that the killing was malicious from the evidence that Brooks kidnapped, robbed, and raped Galloway and from the evidence that he threatened her with a gun to stop her from screaming. However, it is of course possible to kidnap, rob, rape and even threaten without intending to kill. We must insure that the jury’s role is not impaired and rendered conviction-prone by an unconstitutional burden-shifting instruction. Considering all the facts and circumstances, we cannot conclude “beyond a reasonable doubt that the [Sands f rom ] error complained of did not contribute to the [murder] verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828. Accordingly, the district court erred in denying the writ of habeas corpus with respect to the malice murder conviction only. SECTION TWO: PROSECUTORIAL ARGUMENT AT SENTENCING PHASEI. This section of the opinion will be addressed as follows. Part I recounts the facts of Brooks’ case relevant to this issue, focusing particularly on the evidence and argument at the penalty phase of his capital trial. Part II discusses the relevant “fundamental fairness” standard, elaborating upon it in light of Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Part III examines the Georgia capital sentencing trial for the purpose of determining what may be appropriately argued to the jury as a justification for imposing death. Part IV considers the prosecutor’s closing argument in the sentencing phase of this case and recognizes certain improper arguments. Finally, Part V examines the improper arguments to determine whether they entitle Brooks to relief. I. FACTS William Brooks was arrested and tried for the tragic July, 1977 murder of Carol Jeannine Galloway. The jury found the 22-year old Brooks guilty of murder, kidnapping, rape, and armed robbery. The prosecutor, Mr. Mullins Whisnant, decided to seek the death penalty in Brooks’ case. Therefore, following conviction, the jury reconvened for the penalty phase of Georgia’s capital sentencing scheme. Ga.Code Ann. § 17-10-2(c) (1982). The trial court informed the jury that it would hear evidence and argument from both the state and the defendant on the punishment issue. Because an allegedly improper closing argument can only be analyzed in the context of the entire proceeding, we supplement the above description of the crime with a brief description of the evidence presented at the sentencing phase. The state called one witness. Danny Dunaway, a probation and parole officer, testified that Brooks had a bad reputation in the community. Counsel for Brooks called three witnesses to testify in mitigation. Brooks’ mother and two sisters testified that Brooks had been severely beaten by his step-father as a child and that he began to get in trouble at that time. Following the introduction of this evidence, Whisnant made his closing argument for the state. He began with a brief discussion of the “two-fold purpose” of punishment — punishing guilt and deterring like conduct. Concerning the punishment motive, Whisnant argued that “the only appropriate punishment is death in the electric chair.” Whisnant then moved into a more explicit discussion of deterrence. He said “I believe in the death penalty. I think it’s necessary.” Then, responding to the anticipated argument that the death penalty does not deter, Whisnant claimed: ... The last person in Georgia was electrocuted in 1964, and since that date, crime has increased year by year, time after time, every time the statistics come out, we have an increase in crime rate. We didn’t have that when we had capital punishment. We didn’t have this kind of murder, these kinds of crimes you’ve heard about this week, when we had capital punishment. If they were, they were very seldom, we heard about them somewhere else, but not here. Next, in anticipation of arguments for sympathy by defense counsel, the prosecutor reminded the jury of the victim’s high morals, and considerate and thoughtful nature. He also asked “What has the Galloway family gone through, what have they gone through? Next week when it’s Thanksgiving, and they are sitting around the table, Carol Jeannine won’t be there, and never will be there again.” Argument then turned to the issue of why the prosecutor sought the death penalty here. Whisnant argued: I’ve been district attorney for seven and a half years, and we don’t take this business of asking for the death penalty lightly. We don’t come up here on every murder case that we try and say, “Give the man the electric chair.” In the seven and a half years I’ve been district attorney, I believe we’ve only asked for it less than a dozen times, I think it’s nearer eight or nine, but I know it’s less than twelve. So, we take it seriously. We ask you to take it seriously. He then discussed at length factors that he considered in asking for the penalty and which he suggested justified imposing death. First, he discussed how horrible the crime was. He then described the overwhelming evidence as to guilt. Finally, he raised the issue of rehabilitation and opined that “there’s no chance that William Brooks will ever be rehabilitated.” Whisnant next focused on factors particular to Brooks which might call for jury sympathy. He argued that it was “ridiculous” to suggest that Brooks’ troubled upbringing should mitigate his punishment. The prosecutor also pointed out that even though Brooks was young, it was still necessary to punish young people because “that’s the group that’s committing crimes in this country.” Whisnant then made several points directed to possible jury squeamishness about imposing the ultimate punishment. First, he reminded the jurors that they would not be solely responsible for Brooks’ death: Now I’m sure another question that might be going through your mind at this time is, when I get back to that jury room, and we have to vote, and I vote to take somebody’s life, can I do it? I know it’s rough, it would be hard for me to do. Can I take somebody’s life? Well, the truth of the matter is, you’re not taking his life, you’re not pulling the switch in the electric chair; the police who investigated this case and who apprehended William Brooks, they’re not taking his life; the Recorder’s Court Judge who heard the evidence in the preliminary hearing, are you going to say he’s responsible for taking his life? Of course not. How about the Grand Jury who listened to the evidence and indicted him for murder; are the Grand Jurors responsible for his life, can you say they’re about to take his life? Of course not. How about me and my staff, we put the case together and we prosecuted him, and we’re here now asking you to bring back the death penalty, do we feel responsible? I don’t. I don’t think anybody in my office does. How about the man, if he’s electrocuted, who actually pulls the switch, is he responsible for taking his life? Of course not. The person who is responsible for his life is William Brooks himself, and if the switch is pulled and he’s put to death, he pulled the switch the morning that he was walking along Saint Mary’s Road when he put the gun in the back of Carol Jeannine Galloway and kidnapped her, that’s when he took his own life. He’s a grown man, and he knew what he was doing. Whisnant implied that the jury should not shy away from the death penalty because Brooks himself believed in it: Now I’m sure the argument is going to be made, either by Mr. Araguel, or maybe some member of the jury that, “Well the death penalty is bad, maybe we can do something else.” Well let me say this to you; I told you I believe in it. William Brooks believes in the death penalty, he believes in executing people. He carried Carol Jeannine Galloway down in those woods out of the sight of everybody. Carol Jeannine Galloway didn’t have a battery of lawyers around her, she didn’t have a judge sitting there ruling on evidence, she didn’t get twenty strikes when the jury was selected, she didn’t have any courtroom with cameras so that the whole world could see if she got a fair trial. He just stepped back at point-blank range within three feet of her and killed her, shot her. So, he believes in the death penalty, he executed her, a lot more horrible than the electric chair which is a quick thing, brings death on real quickly. She lay there perhaps an hour and a half or two hours before she bled to death. He asked the jury to show Brooks the same sympathy that he showed his victim, i.e., none. Continuing in the same vein, Whisnant argued the impropriety of a life sentence, suggesting that Brooks might kill a guard or a prisoner. For example, he argued: And the next thing is, he has demonstrated that he’s a killer. Anybody who can kill a poor defenseless person, or murder a poor defenseless person like he did will kill again. He doesn’t care, life doesn’t mean anything to him. So you put him in prison. How about those guards that have to guard him. They have families depending on them, how do you know he won’t kill one of them? The prosecutor suggested escape and asked the jurors, “Whose daughter will it be next time?” Whisnant then argued: And this is — I’m going to say this, and maybe you don’t agree with me, and I’m sure I’ll be accused of being materialistic in saying it, but why should — if he’s given life, it cost money to keep him, thousands of dollars a year to keep a prisoner housed, fed and clothed, and medical care, why should the taxpayers, and that’s you folks, all of us, why should the taxpayers have to keep up somebody like William Brooks the rest of his life when he’s done what he’s done? Whisnant then delivered an extended analogy between jurors and soldiers. Let me say this to you, during my lifetime this country has been in three wars, each war we’ve taken our young men down to the age of seventeen, we’ve trained them, we’ve put guns in their hands, we’ve taught them how to kill the enemy, and we’ve sent them overseas, and they have killed other human beings who are enemies of our country, and when they did a good job of killing them, we decorated them and gave them citations, praised them for it. Well, I say to you that we’re in a war again in this country, except it’s not a foreign nation, it’s against the criminal element in this country, that’s who we’re at war with, and they are winning the war, is what’s so bad, and if you don’t believe they are winning, just look about you. You don’t dare get out on the streets at night and walk around, you don’t dare leave your house unlocked. In fact, most everybody I know has added more locks to their house, and burglar bars, and burglar alarms. And, we’ve got a man here in town who makes a living with guard dogs. And, if you go to the hospital to see some of your friends, you’ve got to get by a security place up there, and you see security guards everywhere. Why are they there? Because of the criminal element in this country. It’s winning. And, if we can send a seventeen-year old young man overseas to kill an enemy soldier, is it asking too much to ask you to go back and vote for the death penalty in this case against William Brooks, and I submit to you that he’s an enemy, and he’s a member of the criminal element, and he’s our enemy, and he’s an enemy of the law abiding citizens and the people who want to live peacefully in this country, and who want to be secure in their persons and their homes. You know, lots of times you see people on the street, and they are always stopping us and saying, “You know, something’s got to be done about this crime wave, what can we do, Mr. Whisnant; what can we do, Mr. Smith, we’ve got to do something about it.” Well, you have an opportunity to do something about it right now. The police have investigated the case, we’ve prosecuted it the best we know how, and you’re in the position of Harry Truman, who had on his desk a sign that said, “The Buck Stops Here.” The buck stops with you today. And you can do something about it. You can bring back the death penalty and you can tell William Brooks, and you can tell every other criminal like him, that if you come to Columbus and Muscogee County, and you commit a crime, and it’s one of those crimes that’s punishable by death, and if the aggravating circumstances are there, you are going to get the electric chair, that’s what you can do. And, I believe that will stop some of the crime. Following this “war on crime” argument, Whisnant compared Brooks to a cancer that should be cut out to save the body of society. He claimed that Brooks would never kill again if the jury returned a death verdict. Whisnant concluded his argument with a brief recapitulation of the facts of the crime, including the following: ... He was just walking along with a pistol in his pocket, and he decided, “well, I’ll make a hustle,” to use their language, his language. And then after he did that, “Well, I’ll rape her,” so he carried her down in the woods and raped her and shot her and left her there bleeding to death. He reminded the jury that they had indicated at voir dire that they were not conscientiously opposed to the death penalty, and that they could vote for death if the facts and circumstances warranted it. He asked the jury to go to the jury room, consider the facts and circumstances, and bring back a verdict of death. Brooks’ counsel then made his closing argument. He emphasized juror responsibility for this “hardest decision of your life.” He specifically rebutted any implication in Whisnant’s argument that might suggest that the grand jury, the prosecutor, and others shared responsibility for the sentence: None of those people that he named had the decision-making responsibility, only you twelve have that decision-making responsibility, whether this man lives or this man dies. Defense counsel also rebutted Whisnant’s “war on crime” argument: The District Attorney argued that you were being called upon to be nothing less than soldiers in the service of your country, which I know some of you have served also in the armed forces. But, a soldier doesn’t have time to contemplate, and he isn’t asked to make decisions about whether anyone lives or dies, and that is the difference, because you have that power, you have that decision-making responsibility upon your shoulders, as to whether this man will live or die. Counsel for Brooks then noted that no punishment, however serious, could bring the victim back. He discussed the sanctity of life and the Biblical commandment “Thou shalt not kill.” Turning to the penological justifications argued by the prosecutor, defense counsel stressed the possibility of rehabilitation, argued that the death penalty is not a deterrent, and referred to many studies to this effect, noting that “most of you probably are familiar with these studies.” Finally, he questioned the weight of evidence on guilt and reminded the jury of Brooks’ troubled childhood. The trial judge then instructed the jury. He charged that the jury’s first responsibility was to determine whether any mitigating or aggravating circumstances existed at the time the murder was committed. He charged that the jury would be authorized to recommend the death penalty only if it found beyond a reasonable doubt the existence of one or more of three statutory aggravating circumstances. The three aggravating circumstances were read to the jury. The jury was also told that, even if aggravating circumstances did exist, it could still recommend life imprisonment. Driving home the sole responsibility of the jury he charged: If you recommend the death penalty, then the court is required by law to sentence the defendant to death. On the other hand, you can see fit, ladies and gentlemen, whether aggravating circumstances existed or not, to recommend mercy for the defendant if this should be your finding, then in that event the court is required by law to sentence the defendant to life imprisonment. With respect to the facts and circumstances to be considered by the jury, the judge gave a clear definition of both mitigating circumstances and aggravating circumstances, and charged the jury as follows: In arriving at your determination, you are authorized to consider all the evidence received throughout this trial, presented by both the state and the defendant. You are authorized to include in your consideration the facts and circumstances, if any, in mitigation and aggravation. After deliberating for approximately one hour, the jury returned its verdict of death. II. STANDARD OF REVIEW Appellant claims that the prosecutor’s closing argument contained repeated references to irrelevant, arbitrary, and prejudicial factors as reasons to impose the death penalty. He correctly points out that the argument is very similar to one found “fundamentally unfair” by a panel of this court in Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983). We now reexamine the issue as an en banc court, overruling any implications in Hance inconsistent with this opinion. A. Dangers of Prosecutorial Argument It has long been recognized that misconduct by a prosecuting attorney in closing argument may be grounds for reversing a conviction. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1934). Part of this recognition stems from a systemic belief that a prosecutor, while an advocate, is also a public servant “whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” 295 U.S. at 88, 55 S.Ct. at 633. Beyond a concern with the inherent role of the prosecuting attorney, courts have also noted that prosecutorial misconduct is particularly dangerous because of its likely influence on the jury. Speaking of the prosecutor’s duty to seek justice, the Berger Court stated: It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge, are apt to carry much weight against the accused when they should properly carry none. 295 U.S. at 88, 55 S.Ct. at 633; see also United States v. Morris, 568 F.2d 396, 402 (5th Cir.1978); Hall v. United States, 419 F.2d 582, 583-84 (5th Cir.1969). Thus, our review of alleged errors in argument must be informed by an awareness that the prosecutorial mantle of authority can intensify the effect on the jury of any misconduct. B. Donnelly v. DeChristoforo Notwithstanding the dangers discussed above, our review of a state prosecutor’s argument on a petition for writ of habeas corpus is more limited than if we were examining errors of a federal prosecutor on direct appeal. The Berger, Morris and Hall cases were federal prosecutions and, while their standards provide guidance for reviewing claims on habeas corpus, Houston v. Estelle, 569 F.2d 372, 380-81 (5th Cir.1978), our predecessor court has noted that Georgia prosecutors are allowed more freedom in jury arguments than their federal counterparts. Bryant v. Caldwell, 484 F.2d 65, 66 (5th Cir.1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1572, 39 L.Ed.2d 878 (1974). In Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), the Supreme Court set forth the standard for reviewing habeas corpus petitions raising the impropriety of a state prosecutor’s argument. In that case, petitioner was tried in Massachusetts for a first-degree murder. During closing, the prosecutor referred to defense counsel by saying “They said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.” Counsel objected that the remark, coupled with the fact that a co-defendant had pled guilty during the trial, constituted a suggestion to the jury that the defendant had sought to plead guilty to a lesser-included offense and was refused by the prosecution. The trial court instructed the jury to disregard the remark. The Supreme Court, while acknowledging that the remark may have been improper, reversed the lower court’s grant of habeas relief. In holding that the relevant inquiry was whether the remark violated due process, the majority stated that “not every trial error or infirmity ... constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice.’ Lisenba v. California, 314 U.S. 219, 236 [62 S.Ct. 280, 289, 86 L.Ed. 166] (1941).” 416 U.S. at 642, 94 S.Ct. at 1871. After examining the isolated and possibly unintentional remark, particularly in light of the curative instruction given by the trial court, the Court expressed its inability to conclude “that this incident made [DeChristoforo’s] trial so fundamentally unfair as to deny him due process.” 416 U.S. at 645, 94 S.Ct. at 1872. The Donnelly decision provides important guidelines for reviewing allegedly improper prosecutorial argument. Of primary importance is the need to examine the entire context of the judicial proceeding. Thus, it is not our duty to ask whether a particular remark was unfair; we are concerned with whether it rendered the entire trial unfair. In this regard, isolated or ambiguous or unintentional remarks must be viewed with lenity. Finally, the giving of a curative instruction by the trial court may remedy effects of improper comments. But see Houston v. Estelle, 569 F.2d 372 (5th Cir.1978) (prosecutor’s continuous use of shocking argument despite numerous sustained objections by defense counsel violated due process despite curative instruction). While these principles are helpful, agreeing upon fundamental fairness as the relevant standard does not readily resolve particular cases. The Donnelly Court recognized that “the process of constitutional line drawing in this regard is necessarily imprecise.” 416 U.S. at 645, 94 S.Ct. at 1872. Fundamental fairness is itself but one of many verbal formulations of the scope of due process as guaranteed by the Fifth and Fourteenth Amendments to our Constitution. See, e.g., Hobby v. United States, — U.S.-,-, 104 S.Ct. 3093, 3096, 82 L.Ed.2d 260, 266 (1984) (discrimination in selection of grand jury foreperson does not “undermine the integrity of the indictment” so as to violate due process); Beck v. Alabama, 447 U.S. 625, 637-38,100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392 (1980) (Alabama law precluding jury in capital case from receiving instruction on lesser-included offense violates due process because it “enhances the risk of an unwarranted conviction”); Rochin v. California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952) (use of stomach pump to force production of concealed narcotics violates due process because it “shocks the conscience” and offends a “sense of justice”). An examination of a recent Supreme Court decision will provide additional guidance in ascertaining the appropriate standard of review. C. Strickland v. Washington In Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court considered whether errors of defense counsel in representation at the sentencing phase of a capital trial were so egregious as to deny the defendant the effective assistance of counsel guaranteed by the Sixth Amendment. The standard articulated requires a defendant to show (1) that errors of counsel were so serious as to be outside the broad range of effective assistance, and (2) that the errors were so serious “as to deprive the defendant of a fair trial.” — U.S. at-, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. We believe that the Supreme Court’s discussion of the second element, often called the “prejudice” requirement, is directly analogous to the fundamental fairness inquiry to be undertaken in cases where improper prosecutorial argument is at issue. The court in Strickland v. Washington explained the prejudice requirement as follows: The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. — U.S. at -, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Thus, errors, even serious errors, will not require reversal on a petition for writ of habeas corpus unless their absence would have, in reasonable probability, changed the outcome. At first blush, the use of this standard to test the seriousness of prosecutorial argument may seem questionable. Federal courts conducting habeas review take special care to guard against a state infringement of protections specifically granted by the Bill of Rights, such as the right to counsel. Donnelly v. DeChristoforo, 416 U.S. at 643, 94 S.Ct. at 1871. Nevertheless, we find compelling reasons to support use of the “reasonable probability” test in the context of prosecutorial misconduct. First, the court in Strickland v. Washington, while addressing a specific Sixth Amendment violation, recognized that “fundamental fairness is the central concern of the writ of habeas corpus.” — U.S. at-, 104 S.Ct. at 2070, 80 L.Ed.2d at 700. Discussing the application of the articulated test, Justice O’Connor wrote as follows: Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. at —, 80 L.Ed.2d at 699. Thus, the Court acknowledged that fundamental fairness, the same standard adopted in Donnelly, is the governing principle in reviewing errors of counsel. The use of the “reasonable probability” test to elaborate the underlying principle suggests its applicability to other areas in which fundamental fairness is the guide. A second support for the Strickland v. Washington test is its analytic similarity to our review of prosecutorial argument. Not all errors of counsel require relief. A reviewing court must examine the errors, those “acts and omissions outside the wide range of professionally competent assistance,” — U.S. at-, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, and grant relief only when it is convinced that the requisite level of prejudice is reached. This is because “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” — U.S. at -, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. Similarly, a prosecutor could make many improper arguments without rendering a trial or capital sentencing hearing fundamentally unfair. In each setting, the principal question for the court is when mere errors pass a threshold so as to create a constitutional violation. The Strickland v. Washington test also commends itself because it is flexible enough to accommodate evaluations of constitutional errors of disparate magnitude. Application of the “reasonable probability” test can recognize that some errors are more serious than others in their tendency to “undermine confidence in the outcome.” Strickland v. Washington, — U.S. at -, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Finally, asking whether the absence of improper argument would have, in reasonable probability, changed the result is consistent with the standards discussed in Donnelly and with subsequent cases applying the fundamental fairness standard. The several factors which those cases have found relevant operate in the same fashion under the “reasonable probability” test. For example, the willingness to tolerate an isolated or ambiguous argument stems from a recognition of its minimal effect upon the jury. Another factor — the degree to which the challenged remarks have a tendency to mislead the jury and prejudice the accused, Hance v. Zant, 696 F.2d at 950 n. 7 — is necessarily included within the reasonable probability test. Even argument greatly exceeding the bounds of propriety will not be fundamentally unfair in the guilt phase of a case with overwhelming evidence because of the low probability of the argument’s impact. See, e.g., Cobb v. Wainwright, 609 F.2d 754 (5th Cir.) (given the strength of evidence against the defendant, the prosecutor’s inflammatory argument did not render trial fundamentally unfair), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980); Cronnon v. Alabama, 587 F.2d 246 (5th Cir.) (improper argument not unconstitutional due to overwhelming evidence of guilt), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979). On the other hand, arguments serious enough to satisfy the “reasonable probability” test have been found “fundamentally unfair” under the Donnelly standard. See, e.g., Houston v. Estelle, 569 F.2d 372 (5th Cir.1978) (repeated unsupported and inflammatory references to defendant as liar and dealer of drugs, and argument that defense counsel’s objections and motions for mistrial evidenced desire to take case away from the jury, all over objection by defense counsel, so pervaded the trial as to be unconstitutional — even a curative instruction did not mitigate actual prejudice to defendant). For all these reasons, we conclude that the Strickland v. Washington test, requiring an assessment of errors to determine whether there is a reasonable probability that they changed the outcome of a case, is applicable to our analysis of whether improper closing arguments delivered by the prosecuting attorney rendered the capital sentencing hearing fundamentally unfair. D. Application of the Standard These guidelines for reviewing the effect of prosecutorial argument only-come into play when an improper argument has been made. A permissible argument, no matter how “prejudicial” or “persuasive,” can never be unconstitutional. Thus, a precondition to examining the probable effect of improper closing argument on the jury is an understanding of the scope of permissible prosecutorial argument. In the context of a trial on the issue of guilt, where the jury is asked to find facts beyond a reasonable doubt, case law is plentiful on subjects that should not be argued. In this case, however, we review closing argument in the sentencing phase of a capital trial. Because the Georgia capital sentencing hearing has a different focus than a trial on guilt, we must examine its particular characteristics in order to determine the extent of proper prosecutorial argument. Then, we can examine the argument in this case to determine whether Whisnant exceeded those bounds. Because we find some of his arguments excessive, we must finally determine, in accord with the standard set out above, whether the improper segments were so egregious as to create a reasonable probability that the outcome was changed because of them. III. DETERMINING THE SCOPE OF PERMISSIBLE PROSECUTORIAL ARGUMENT AT THE SENTENCING PHASE In Georgia, as in other jurisdictions that impose the death penalty, a capital sentence is given only after a special hearing which follows a conviction for a death-eligible crime. Ga.Code Ann. § 17-10-2 (1982). The use of this “bifurcated procedure” for trial and sentencing in capital cases was first recommended by the drafters of the Model Penal Code as a means of keeping prejudicial evidence relevant only to sentencing, from influencing the jury prior to its adjudication of guilt. ALI, Model Penal Code § 201.6, comment 5, pp. 74-75 (Tentative. Draft No. 9, 1959). While the procedure has been explicitly approved by the Supreme Court, see Gregg v. Georgia, 428 U.S. 153, 190-92, 96 S.Ct. 2909, 2933-34, 49 L.Ed.2d 859 (1976), the precise nature of the capital sentencing determination has been the source of some controversy. Because the appropriate conception of the penalty phase determines the role of the sentencing jury, it also affects what may be legitimately argued to that jury by a prosecutor as grounds for imposing death. In this section of the opinion, we will discuss the Georgia capital punishment scheme and the areas of argument relevant to it. A. General Considerations Because death is qualitatively different from all other punishments, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). The consistent recognition of death as a special punishment has led courts to scrutinize carefully the procedures under which it is imposed. Those procedures must comport with the Eighth Amendment’s prohibition against cruel and unusual punishments, which, in the capital sentencing context, requires that sentencing discretion “be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976). The quest for minimal risk does not, however, require perfection. Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). An initial concern in dealing with closing arguments in capital cases is the emotional fashion in which they are frequently delivered, both by prosecution and defense counsel. Indeed, Brooks suggests that the emotional character of the prosecutor’s argument here contravenes the mandate of Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977), that the “decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” See also Hance v. Zant, 696 F.2d 940, 952-53 (11th Cir.1983) (“This dramatic appeal to gut emotion has no place in the courtroom, especially in a case involving the penalty of death”). This claim warrants careful attention. Georgia’s capital punishment scheme — with its bifurcated trial, its requirement that the jury find at least one of the several statutory aggravating circumstances, its individualized determination of the life or death decision, and its mandatory appellate review — makes it possible to differentiate a particular case “in an objective, evenhanded, and substantially rational way from the many Georgia murder cases in which the death penalty may not be imposed,” Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235, 251 (1983). But, while the statute may be an objective one, capital sentencing is still an emotional issue. Necessarily it will always be so. See Barclay v. Florida, 463 U.S. 939, -, 103 S.Ct. 3418, 3424, 77 L.Ed.2d 1134, 1144 (1983) (“It is entirely fitting for the moral, factual and legal judgment of judges and juries to play a meaningful role in sentencing”). “Reason” alone cannot adequately explain a jury’s decision to grant mercy to a person convicted of a serious murder because of that person’s youth or troubling personal problems. Nor can reason alone fully explain the reaction of a juror upon hearing the facts of a particular crime described in their specifically tragic detail. Empathy for a defendant’s individual circumstance or revulsion at the moral affront of his crime, reactions accepted as bases for capital sentencing decisions, are not susceptible to full explanation without recourse to human emotion. Thus, the fact that an argument by a defense counsel or prosecutor has emotional overtones does not independently indict it as improper. Tucker v. Zant, 724 F.2d 882 (11th Cir.), vacated for reh’g en banc, 724 F.2d 898 (1984). See Conner v. State, 251 Ga. 113, 303 S.E.2d 266, 276, cert. denied, — U.S. -, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983). The propriety of argument rests primarily in the relation of its content to issues relevant to the sentencing jury’s concern. B. Georgia’s Sentencing Hearing In Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982), the Georgia Supreme Court, answering a question certified by the United States Supreme Court, outlined the “issue” before a Georgia capital sentencing jury. After a conviction of murder, a capital sentencing hearing may be held. The jury hears evidence and argument and is then instructed about statutory aggravating circumstances. The court explained the process beyond this instruction as follows: The purpose of the statutory aggravating circumstances is to limit to a large degree, but not completely, the factfinder’s discretion. Unless at least one of the ten statutory aggravating circumstances exist, the death penalty may not be imposed in any event. If there exists at least one statutory aggravating circumstance, the death penalty may be imposed but the factfinder has a discretion to decline to do so without giving any reason____[Citations omitted]. In making the decision as to the penalty, the fact-finder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial. These circumstances relate both to the offense and the defendant. 297 S.E.2d at 3-4. The United States Supreme Court upheld the constitutionality of structuring the sentencing jury’s discretion in such a manner. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). This explanation demonstrates that the jury in the sentencing phase has two tasks. It must first determine whether the evidence supports the existence of at least one statutory aggravating circumstance. That determination must be made “beyond a reasonable doubt.” Ga.Code Ann. § 17-10-30(c). If at least one aggravating circumstance is present, the jury must then examine factors relative “to the offense and the defendant” and exercise its discretion in choosing between death or life imprisonment. In carrying out the first task, the issue before the jury is very clear. The statutory circumstances are elaborated such that they require findings of fact similar to those made by the jury in the guilt phase of the trial. Conner v. State, 303 S.E.2d at 274. The second task, exercise of discretion to impose punishment, is more amorphous. California v. Ramos, 463 U.S. 992, 999, 103 S.Ct. 3446, 3451, 77 L.Ed.2d 1171, 1185 (1983) (“once the jury finds that the defendant falls within the legislatively-defined category of persons eligible for the death penalty, ... [it] then is free to consider whether death is the appropriate punishment”); Zant v. Stephens, 462 U.S. at 878, 103 S.Ct. at 2743, 77 L.Ed.2d at 248 (upholding Georgia statute over defendant’s contention that jury discretion is “unbridled” at the sentencing stage). Nevertheless, some description of the jury’s discretionary choice of punishment is made possible by reference to ease law outlining appropriate