Flamer v. State of DE

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

10-19-1995

Flamer v State of DE
Precedential or Non-Precedential:

Docket 93-9000

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 93-9000
____________

WILLIAM H. FLAMER

v.

STATE OF DELAWARE; DARL CHAFFINCH;
RAYMOND CALLAWAY; HAROLD K. BRODE;
WILLIAM H. PORTER; GARY A. MYERS;
LOREN C. MEYERS; DANA REED; JAMES E.
LIGUORI; CHARLES M. OBERLY, III;
WALTER REDMAN; STANLEY W. TAYLOR,
Acting Warden; WARDEN ROBERT SNYDER

William Henry Flamer,
Appellant

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Civil No. 87-00546)

Argued: February 16, 1994
Before: BECKER, HUTCHINSON* and ALITO, Circuit Judges
Reargued in Banc: November 22, 1994
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN,
GREENBERG, HUTCHINSON*, SCIRICA, COWEN, NYGAARD,
ALITO, ROTH, LEWIS, McKEE and SAROKIN, Circuit Judges

BAYARD, HANDELMAN & MURDOCH, P.A.
CHARLENE D. DAVIS, ESQ. (Argued)
902 Market Street, 13th Floor
P. O. Box 25130
Wilmington, DE 19899

JOSHUA L. SIMON, ESQ.
Law Office of David Staats
Concord Plaza Office Park
Rodney Building, Suite 100H
Wilmington, DE 19810

Counsel for Appellant, Flamer

1
______________________________
*Judge Hutchinson participated in the argument and conference of
the in banc court in these appeals, but he died before the filing
of the opinion.

2
 GARY A. MYERS, ESQ. (Argued)
PAUL R. WALLACE, ESQ.
CARL C. DANBERG, ESQ.
Deputy Attorney General
Department of Justice
State Office Building
820 N. French Street, Eighth Floor
Wilmington, DE 19801

Counsel for Appellees

____________

No. 93-9002

____________

BILLIE BAILEY,
Appellant

v.

ROBERT SNYDER, Warden,
Delaware Correctional Center

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Civil No. 92-00209)
____________________

Argued: April 26, 1994
Before: MANSMANN, COWEN, and LEWIS, Circuit Judges
Reargued In Banc: November 22, 1994
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN,
GREENBERG, HUTCHINSON*, SCIRICA, COWEN, NYGAARD,
ALITO, ROTH, LEWIS, McKEE & SAROKIN, Circuit Judges

(Opinion Filed: October 19, 1995)
____________________

EDMUND D. LYONS, JR., ESQ. (Argued)
DAVID JAY LYONS, ESQ.
805 Marine Midland Plaza
824 Market Street Mall
P. O. Box 579
Wilmington, DE 19899

3
 Counsel for Appellant, Bailey
PAUL R. WALLACE, ESQ. (Argued)
Deputy Attorney General
Department of Justice
State Office Building
820 N. French Street, Eighth Floor
Wilmington, DE 19801

Counsel for Appellee, Snyder

____________________

OPINION OF THE COURT
____________________

ALITO, Circuit Judge:

This opinion of the in banc court concerns two appeals

from orders of the United States District Court for the District

of Delaware that denied habeas corpus petitions filed by two

state prisoners, William Henry Flamer and Billie Bailey, who were

separately tried for unrelated double homicides and sentenced to

death. The appeals were initially heard by two separate panels

of this court during roughly the same period. Both prisoners

argued, among other things, that their death sentences should be

vacated pursuant to Clemons v. Mississippi, 494 U.S. 738 (1990),

because Delaware, in the parlance of the Supreme Court's Eighth

Amendment decisions, is a "weighing state" and because the juries

in both cases were instructed at the penalty phase regarding

certain statutory aggravating factors that were either

impermissibly vague or duplicative. Before a panel opinion was

filed in either appeal, the court voted to rehear these cases in

4
banc for the purpose of addressing the prisoners' related

arguments.

Agreeing with the two district court judges who denied

the prisoners' petitions and with the unanimous Supreme Court of

Delaware, we now hold that Delaware is not a "weighing state,"

that Clemons is therefore inapplicable, and that the governing

Supreme Court precedent is Zant v. Stephens, 462 U.S. 862 (1983).

Applying Zant, we hold that the strikingly similar jury

instructions and interrogatories used in these two cases did not

violate the Eighth Amendment. We also find no merit in Bailey's

remaining arguments. In this opinion, we do not address Flamer's

many other arguments, but in a separate opinion that is being

filed simultaneously with this opinion, the panel that originally

heard Flamer's appeal rejects all of Flamer's other arguments.

Accordingly, the district court orders in both cases will be

affirmed.

I.

A. The background of Flamer's appeal is set out in the

panel opinion that is being filed together with this opinion, and

therefore a detailed statement is not needed here. Flamer was

arrested in 1979 for murdering his elderly aunt and uncle during

a robbery at their home. In early 1980, he was tried and

convicted on four charges of first-degree murder: two charges of

intentionally causing the death of another person, Del. Code Ann.

tit. 11 § 636(a)(1), and two charges of felony murder, Del. Code

Ann. tit. 11, § 636(a)(2). He was also found guilty of other

5
non-capital offenses. After the jury returned these verdicts,

the state sought the imposition of the death penalty.

At the time of Flamer's trial,0 Del. Code Ann. tit. 11,

§ 4209(d)(1) provided in pertinent part as follows:
A sentence of death shall not be imposed
unless the jury or judge, where appropriate,
finds:

a. Beyond a reasonable doubt at least 1
statutory aggravating circumstance; and

b. Unanimously recommends, after
weighing all relevant evidence in aggravation
or mitigation which bears upon the particular
circumstances or details of the commission of
the offense and the character and
propensities of the offender, that a sentence
of death be imposed.

See Flamer v. State, 490 A.2d 104, 146 (Del. 1983). Nineteen

statutory aggravating circumstances were listed in Del. Code Ann.

tit. 11, § 4209(e)(1).0 In addition, the statute provided that a

0
The language of this provision today is substantially the same:

A sentence of death shall be imposed, after
considering the recommendation of the jury,
if a jury is impaneled, if the Court finds:

a. Beyond a reasonable doubt at least 1
statutory aggravating circumstance; and

b. By a preponderance of the evidence,
after weighing all relevant evidence in
aggravation or mitigation which bears upon
the particular circumstances or details of
the commission of the offense and the
character and propensities of the offender,
that the aggravating circumstances found by
the Court to exist outweigh the mitigating
circumstances found by the Court to exist.

Del. Code Ann. tit. 11, § 4209(d) (Supp. 1994).
0
These were:

6
 a. The murder was committed by a person in, or
who has escaped from, the custody of a law-enforcement
officer or place of confinement.

b. The murder was committed for the purpose of
avoiding or preventing an arrest or for the purpose of
effecting an escape from custody.

c. The murder was committed against any law-
enforcement officer, corrections employee or fireman,
while such victim was engaged in the performance of his
official duties.

d. The murder was committed against a judicial
officer, a former judicial officer, Attorney General,
former Attorney General, Assistant or Deputy Attorney
General or former Assistant or Deputy Attorney general,
State Detective or former State Detective, Special
Investigator or former Special Investigator, during, or
because of, the exercise of his official duty.

e. The murder was committed against a person who
was held or otherwise detained as a shield or hostage.

f. The murder was committed against a person who
was held or detained by the defendant for ransom or
reward.

g. The murder was committed against a person who
was a witness to a crime and who was killed for the
purpose of preventing his appearance or testimony in
any grand jury, criminal or civil proceeding involving
such crime.

h. The defendant paid or was paid by another
person or had agreed to pay or be paid by another
person or had conspired to pay or be paid by another
person for the killing of the victim.

i. The defendant was previously convicted of
another murder or manslaughter or of a felony involving
the use of, or threat of, force or violence upon
another person.

j. The murder was committed while the defendant
was engaged in the commission of, or attempt to commit,
or flight after committing or attempting to commit any
degree of rape, arson, kidnapping, robbery, sodomy or
burglary.

7
statutory aggravating circumstance would be deemed to have been

established if a defendant was convicted under certain

subsections of the Delaware first-degree murder statute, Del.

Code Ann. tit. 11, § 636(a)(2)-(7).0 Thus, under these

k. The defendant's course of conduct resulted in
the deaths of 2 or more persons where the deaths are a
probable consequence of the defendant's conduct.

l. The murder was committed by means of torture,
use of an explosive device or poison, or the defendant
used such means on the victim prior to murdering him.

m. The defendant caused or directed another to
commit murder or committed murder as an agent or
employee of another person.

n. The murder was outrageously or wantonly vile,
horrible or inhuman.

o. The defendant was under a sentence of life
imprisonment, whether for natural life or otherwise, at
the time the commission of the murder.

p. The murder was committed for pecuniary gain.

q. The victim was pregnant.

r. The victim was severely handicapped, severely
disabled or elderly.

s. The victim was defenseless.
0
Del. Code Ann. tit. 11, § 636(a) provided:

(a) A person is guilty of murder in the first degree
when:

(1) He intentionally causes the death
of another person;

(2) In the course of and in furtherance
of the commission or attempted commission of
a felony or immediate flight therefrom, he
recklessly causes the death of another
person;

8
provisions, a Delaware jury at the penalty phase of a capital

case was required to perform two steps. In the first step, which

we will hereafter call the "eligibility" step, the jury was

required to determine whether at least one statutory aggravating

circumstance had been (or was deemed to have been) proven. In

the second step, which we will call the "selection" step, the

jury was required to weigh all of the pertinent evidence in

aggravation (not just the statutory aggravating circumstances)

and all of the evidence in mitigation.

(3) He intentionally causes another
person to commit suicide by force or duress;

(4) He recklessly causes the death of a
law enforcement officer, corrections employee
or fireman while such officer is in the
lawful performance of his duties;

(5) He causes the death of another
person by the use of or detonation of any
bomb or similar destructive device;

(6) He, with criminal negligence,
causes the death of another person in the
course of and in furtherance of the
commission or attempted commission of rape,
kidnapping, arson in the first degree,
robbery in the first degree, or immediate
flight therefrom;

(7) He causes the death of another
person in order to avoid or prevent the
lawful arrest of any person, or in the course
of and in furtherance of the commission or
attempted commission of escape in the second
degree or escape after conviction

Thus, if a defendant was convicted of first-degree murder under
subsection (1) -- for "intentionally causing the death of another
person" -- no statutory aggravating circumstance would
automatically be deemed to have been established. However, if a
defendant was convicted under subsections (2)-(7), a statutory
aggravating circumstance would be deemed to have been proven.

9
 In Flamer's case, a statutory aggravating circumstance

was deemed to have been established by virtue of his convictions

on two charges of felony murder (Del. Code Ann. tit. 11,

§636(a)(2)). See supra pages 4-5. In addition, the prosecution

argued that three other statutory aggravating circumstances had

been proven, namely, (1) that Flamer's conduct had "resulted in

the deaths of 2 or more persons where the deaths [were] a

probable consequence of [that] conduct,"0 (2) that the murders

were "outrageously or wantonly vile, horrible, or inhuman,"0 and

(3) that the murders were committed "for pecuniary gain."0 The

prosecution urged the jury to impose the death sentence based on

these circumstances and certain non-statutory aggravating

factors, including Flamer's prior criminal record, the age of his

two victims, the frailty of his aunt, and Flamer's exploitation

of his aunt and uncle's trust in order to gain entrance to their

home. Flamer Joint Appendix ("JA") at 1485-86. The jury was

given instructions that are discussed in detail in Part III of

this opinion. The jury then returned a verdict recommending0

that a sentence of death be imposed. On a special interrogatory

form, which is also discussed in detail in Part III, the jury

found that all three of the additional statutory aggravating

circumstances alleged by the prosecution had been established,

0
Del. Code Ann. tit. 11, § 4209(e)(1)k.
0
Del. Code Ann. tit. 11, § 4209(e)(1)n.
0
Del. Code Ann. tit. 11, § 4209(e)(1)p.
0
Although the Delaware statute described the jury's decision as a
"recommendation," this decision, if supported by the evidence,
was "binding on the Court." Del. Code Ann. tit. 11,
§4209(d)(1)b.

10
and the jury indicated that it had relied on all of the statutory

aggravating circumstances in making its recommendation.

Shortly after this verdict was returned, the United

States Supreme Court handed down its decision in Godfrey v.

Georgia, 446 U.S. 420 (1980), which concerned the Georgia

sentencing scheme, upon which, according to the Supreme Court of

Delaware, the Delaware scheme "was obviously fashioned." State

v. White, 395 A.2d 1082, 1085 (Del. 1978). Under the Georgia

scheme, like the Delaware scheme, the jury was first required to

determine whether at least one statutory aggravating circumstance

had been proven. See Zant v. Stephens, 462 U.S. at 871. If the

jury found that such a circumstance had been shown, the jury was

then called upon to consider all pertinent aggravating and

mitigating evidence in determining whether a death sentence

should be imposed. Id. at 871-72.

In Godfrey, the defendant had killed his wife and

mother-in-law "instantly" by shooting them in the head with a

shotgun. 446 U.S. at 425. In sentencing the defendant to death,

the jury found one statutory aggravating factor to have been

proven, i.e., that the murders were "outrageously or wantonly
vile, horrible, or inhuman, in that [they] involved torture,

depravity of mind, or an aggravated battery to the victim." Id.

at 426. The jury found that this statutory aggravating factor

had been proven even though the prosecution had not claimed that

the murders had involved "torture" or an "aggravated battery"

(other than the homicides themselves) and even though the jury's

answers on a sentencing questionnaire indicated that neither

11
torture nor an aggravated battery (other than the murders) had

been found. Id.

The Georgia Supreme Court affirmed the death sentence,

but the United States Supreme Court reversed. In the plurality

opinion that embodied the Court's holding,0 Justice Stewart

observed that a valid capital sentencing scheme "must channel the

sentencer's discretion by `clear and objective standards' that

provide `specific and detailed guidance,' and that `make

rationally reviewable the process for imposing a sentence of

death.'" Id. at 428 (footnotes omitted). The plurality

concluded that the challenged statutory aggravating circumstance,

as apparently interpreted by the Georgia Supreme Court in

Godfrey, did not fulfill this requirement. The plurality wrote:
In the case before us, the Georgia
Supreme Court has affirmed a sentence of
death based upon no more than a finding that
the offense was "outrageously or wantonly
vile, horrible and inhuman." There is
nothing in these few words, standing alone,
that implies any inherent restraint on the
arbitrary and capricious infliction of the
death sentence. A person of ordinary
sensibility could fairly characterize almost
every murder as "outrageously or wantonly
vile, horrible and inhuman." Such a view
may, in fact, have been one to which the
members of the jury in this case subscribed.

0
Justice Stewart's plurality opinion was joined by three other
justices. Justice Marshall, joined by Justice Brennan, concurred
in the judgment. Justice Marshall "agree[d] with the plurality
that, as applied in this case, [the aggravated circumstance at
issue was] unconstitutionally vague," 426 U.S. at 435 (Marshall,
J., concurring in the judgment), but he also expressed the view
that reversal was required on broader grounds. Id. at 433, 435-
42.

12
Id. at 428-29 (footnote omitted). The plurality opinion

subsequently added that there was "no principled way to

distinguish this case, in which the death penalty was imposed,

from the many cases in which it was not." Id. at 433.

Following this decision, the Supreme Court of Delaware,

in Petition of State for Writ, 433 A.2d 325 (1981), held that the

statutory aggravating circumstance set out in Del. Code Ann. tit.

11, § 4209(e)(1)n -- that "[t]he murder was outrageously or

wantonly vile, horrible, or inhuman" -- was, like its Georgia

counterpart, too vague to channel a sentencer's discretion in a

capital case. As previously noted, this circumstance was found

by the jury in Flamer's case, but three other statutory

aggravating circumstances had also been proven. Thus, in

Flamer's direct appeal, the Supreme Court of Delaware was

required to decide whether the jury's reliance on one vague

statutory aggravating circumstance necessitated the reversal of

Flamer's death sentence, even though other statutory aggravating

circumstances had also been proven.

While Flamer's direct appeal was pending, the United

States Supreme Court addressed a similar question in Zant v.

Stephens, supra, which again involved the Georgia capital

sentencing scheme.0 In Zant, the jury had found that three

statutory aggravating circumstances had been proven, and it had

imposed a sentence of death. 462 U.S. at 866-67. One of these

statutory aggravating circumstances was subsequently held by the

0
Zant is discussed in greater detail below. See infra pages 20-
25.

13
Georgia Supreme Court to be too vague to satisfy the standard

adopted in Godfrey. See id. at 867. Nevertheless, the United

States Supreme Court held that reversal of the death sentence in

Zant was not required. The Court, however, specifically reserved

decision as to whether its holding would apply in so-called

"weighing states," which have a capital sentencing scheme

significantly different from Georgia's. Id. at 890.

After carefully analyzing the United States Supreme

Court's decision in Zant and related cases, the Supreme Court of

Delaware held that Flamer's sentence should be upheld. Flamer v.

State, 490 A.2d at 131-36. The Supreme Court of Delaware held

that Delaware is not a "weighing state" and wrote:
While the jury in Delaware is told to weigh
and consider certain circumstances, the fact
that they are not told how to weigh them and
that this "weighing" occurs at the
discretionary stage, renders defendant's
argument meaningless.

Id. at 135-36. The Delaware Supreme Court further found that

the instructions had not placed excessive emphasis on the vague

statutory circumstance and that the references to that
circumstance were harmless. Id. at 136. Responding to Flamer's

argument that two of the statutory aggravating factors -- that

the murders were committed during the felony of robbery and that

the murders were committed for pecuniary gain were duplicative --

the Delaware Supreme Court likewise observed that "nowhere did

the trial court suggest `that the presence of more than one

aggravating circumstance should be given special weight.'" 490

A.2d at 136 (quoting Zant, 461 U.S. at 891).

14
 In his federal habeas corpus petition, Flamer renewed

his argument that the jury's finding of one invalid statutory

aggravating circumstance required the reversal of his death

sentence, but the district court agreed with the analysis of the

Supreme Court of Delaware. Flamer v. Chaffinch, 827 F. Supp.

1079, 1094-97 (D. Del. 1993). This appeal followed.

B. Bailey committed the two murders for which he was

sentenced to death while assigned to the Plummer House, a work

release facility in Wilmington, Delaware. Bailey v. Snyder, 855

F. Supp. 1392, 1396-97 (D. Del. 1993). After escaping from the

Plummer House, Bailey appeared at the home of his foster sister,

Sue Ann Coker, in Cheswold, Delaware. Id. at 1397. Bailey told

his foster sister that he was upset and was not going back to the

Plummer House. Id. A short time later, Bailey and Charles

Coker, his foster sister's husband, left in Coker's truck to run

an errand. Id. On the way, Bailey asked Coker to stop at a

package store. Id. Bailey then entered the store and robbed the

clerk at gunpoint. Id. Emerging from the store with a pistol in

one hand and a bottle in the other, Bailey told Coker that the

police would soon be arriving, and he asked to be dropped at

Lambertson's Corner, about one and one-half miles away. Id.
Coker complied and then drove back to the scene of the robbery,

where he inquired about the clerk and telephoned the Delaware

State Police. Id.

In the meantime, Bailey had entered the farmhouse of

Gilbert Lambertson, age 80, and his wife, Clara Lambertson, age

15
73. Id. Bailey shot Gilbert Lambertson twice in the chest with

a pistol and once in the head with the Lambertsons' shotgun. Id.

at 1392. He shot Clara Lambertson once in the shoulder with the

pistol and once in the abdomen and once in the neck with the

shotgun. Id. Both Lambertsons died. Id.

Bailey fled from the scene but was spotted by a

Delaware State Police helicopter unit as he ran across the

Lambertsons' field. Id. He attempted to shoot the helicopter

co-pilot with the pistol, but he was apprehended. Id.

Bailey was charged with first-degree murder and other

offenses, and he was tried at approximately the same time as

Flamer, but before a different judge. After the jury found

Bailey guilty, the state sought the death penalty. Bailey v.

State, 490 A.2d 158, 172 (Del. 1983). The state argued that it

had established the existence of the following four statutory

aggravating circumstances: (1) that the murders were committed

by one who had escaped from a place of confinement,0 (2) that the

murders were committed while the defendant was engaged in flight

after committing a robbery,0 (3) that the defendant's course of

conduct resulted in the deaths of two people where the deaths

were a probable consequence of the defendant's conduct,0 and (4)

that the murders were "outrageously or wantonly vile, horrible,

or inhuman."0 Id. The judge gave the jury instructions that

were virtually identical to those given in Flamer's case. Id. at

0
Del. Code Ann. tit. 11, § 4209(e)(1)a.
0
Del. Code Ann. tit. 11, § 4209(e)(1)j.
0
Del. Code Ann. tit. 11, § 4209(e)(1)k.
0
Del. Code Ann. tit. 11, § 4209(e)(1)n.

16
173. The jury then returned a verdict recommending the

imposition of a death sentence. On an interrogatory form that is

also virtually the same as that used in Flamer's case, the jury

indicated that it had found that all four of the alleged

statutory factors had been proven. See Bailey v. Snyder, 855 F.

Supp. at 1409. The jury further indicated that, in recommending

a death sentence, it had relied on two of those circumstances --

that the defendant's conduct had resulted in the deaths of two

persons where the deaths were a probable consequence of the

defendant's conduct and that the murders were outrageously or

wantonly vile, horrible, or inhuman. Id.

On direct appeal, the Supreme Court of Delaware

considered whether Bailey's death sentences had to be vacated

because the jury had found the existence of one invalid statutory

aggravating circumstances (i.e., that the murders were

"outrageously or wantonly vile, horrible, or unhuman"). Bailey

v. State, 490 A.2d at 172-74. The Delaware Supreme Court handed

down its decisions regarding the death sentences in Flamer's and

Bailey's cases on the same day. In Bailey's case, the State

Supreme Court relied on its analysis in its Flamer opinion and
affirmed Bailey's death sentence. Id. at 173-74.

Bailey subsequently filed the federal habeas petition

that is now before us and argued, among other things, that the

jury's finding of a single invalid statutory aggravating

circumstance required the reversal of his death sentence. Bailey
v. Snyder, 855 F. Supp. at 1408. Bailey's petition was assigned

to a different district court judge from Flamer's, but the judge

17
in Bailey's case reached the same conclusion as the judge in

Flamer's. Agreeing with the Supreme Court of Delaware that

Delaware is a "non-weighing state" and that Zant is the governing

precedent, the district court held that the Bailey jury's finding

of a single invalid statutory aggravating circumstance did not

require the reversal of Bailey's death sentence. Id. at 1408-11.

Bailey then took this appeal.

II.

A. On appeal, both Flamer and Bailey argue that

Delaware is a "weighing" state; that Clemons v. Mississippi,

supra, not Zant, is therefore the pertinent Supreme Court

precedent; and that under Clemons the juries' reliance on one or

more invalid statutory aggravating circumstances means that their

death sentences cannot stand unless there is a judicial

reweighing of the evidence without consideration of the invalid

circumstances or unless it is determined that the juries'

consideration of those circumstances was harmless. In order to

assess these arguments, it is necessary to explain the difference

between what the Supreme Court has termed "weighing" and "non-

weighing" states.

B. At the time of the Supreme Court's decision in

Furman v. Georgia, 408 U.S. 238 (1972), "sentencing juries had
almost complete discretion in determining whether a given

defendant would be sentenced to death . . . ." Johnson v. Texas,
113 S. Ct. 2658, 2664 (1993). "The guiding principle that

18
emerged from Furman was that the States were required to channel

the discretion of sentencing juries in order to avoid a system in

which the death penalty would be imposed in a `wanto[n]' and

`freakis[h]' manner." Id. (citation omitted) (brackets in

original). Since then, the Supreme Court has repeatedly said

that a state's capital sentencing scheme "must genuinely narrow

the class of persons eligible for the death penalty and must

reasonably justify the imposition of a more severe sentence on

the defendant compared to others found guilty of murder." Zant,

462 U.S. at 877; see also Tuilaepa v. California, 114 S. Ct.

2630, 2634 (1994); Arave v. Creech, 113 S. Ct. 1534, 1542 (1993);

Godfrey, 446 U.S. at 428-29. This narrowing is typically

achieved by permitting the imposition of a death sentence only if

the trier of fact finds at either the guilt or penalty phase that

at least one statutorily specified aggravating circumstance has

been proven. See Tuilaepa, 114 S. Ct. at 2634; Lewis v.

Jeffers, 497 U.S. 764, 774 (1990); Blystone v. Pennsylvania, 494

U.S. 299, 306-07 (1990). Such a finding makes a defendant

"`eligible' for the death penalty." See Tuilaepa, 114 S. Ct. at

2634; Lewis, 497 U.S. at 774.
Because the aggravating factors listed in a state's

capital sentencing statute perform this critical narrowing

function, the Supreme Court has insisted that these factors be

defined with some precision, for if they are too vague they can

leave "the kind of open-ended discretion which was held invalid

in Furman." Maynard v. Cartwright, 486 U.S. 356, 362 (1988). As

previously explained, it was for this reason that the Court held

19
that the circumstance at issue in Godfrey -- whether the murders

were "outrageously or wantonly vile, horrible or inhuman" -- was

inadequate to channel the jury's eligibility determination. In

Maynard v. Cartwright, 486 U.S. at 362, the Court subsequently

reached the same conclusion with respect to the circumstance of

whether the murder was "especially heinous, atrocious, or cruel."

Although the statutorily defined aggravating circumstances at

issue in Godfrey and Maynard refer to underlying considerations

that may properly be taken into account in deciding whether a

death sentence should be imposed, their flaw is that they do not

adequately narrow the factfinder's discretion in determining

whether a defendant should be found to be eligible for a death

sentence. See Maynard, 486 U.S. at 361-62; Zant, 462 U.S. at

885-89.

"Once the jury finds that the defendant falls within

the legislatively defined category of persons eligible for the

death penalty," a state is free to allow "the jury . . . to

consider a myriad of factors to determine whether death is the

appropriate punishment." California v. Ramos, 463 U.S. 992, 1008

(1983). A state must permit the factfinder to consider all

mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 112
(1982); Lockett v. Ohio, 438 U.S. 586, 604-05 (1978). But a

state has considerable leeway with respect to the role of

aggravating factors at this stage. One permissible method is

exemplified by the Georgia sentencing scheme at issue in Zant v.
Stephens. Another permissible method is exemplified by the

scheme discussed in Clemons v. Mississippi.

20
 C. Zant, as previously noted, involved the Georgia

capital sentencing scheme. Under that scheme, as described by

the Georgia Supreme Court in response to a question certified

from the Supreme Court of the United States, the factfinder at

the penalty phase was first required to determine whether at

least one of the aggravating circumstances enumerated by statute

was present. See 462 U.S. at 870-72. If the factfinder found at

least one of these circumstances, the factfinder was then

required to "`consider[] all evidence in extenuation, mitigation

and aggravation of punishment.'" Id. at 871 (quoting 297 S.E.2d

1, 3-4 (1982)).

In Zant, after the defendant, Stephens, was found

guilty of murder, the state requested that the jury impose the

death penalty and argued that the following aggravating

circumstances listed in the Georgia statute were present: (1)(a)

that the defendant had "a prior record of conviction for a

capital felony" or (b) "a substantial history of serious

assaultive criminal convictions"; (2) that the offense was

"outrageously or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind, or aggravated battery to the

victim"; and (3) that the defendant had escaped from lawful

custody or confinement. Id. at 865 n.1. The jury imposed the

death penalty and stated that it had found the presence of the

aggravating circumstances labeled above as (1)(a) (that the

defendant had a prior conviction for a capital felony), (1)(b)

(that he had a substantial history of serious assaultive criminal

21
convictions), and (3) (that he had escaped from lawful custody or

confinement). Id. at 866-67.

The Georgia Supreme Court subsequently held in another

case, Arnold v. State, 224 S.E.2d 386, 541-42 (Ga. 1976), that

circumstance (1)(b) -- a "substantial history of serious

assaultive criminal convictions" -- was unlawfully vague for

Eighth Amendment purposes. In light of this decision, the

Georgia Supreme Court considered whether the jury's finding of

this improper aggravating circumstance rendered Stephens's death

sentence invalid. The court concluded that it did not, because

the other circumstances found by the jury adequately supported

Stephens's sentence. See Stephens v. State, 237 S.E.2d 259, 261-

62, cert. denied, 429 U.S. 986 (1978); Stephens v. Hopper, 247

S.E.2d 92, 97-98, cert. denied, 439 U.S. 991 (1978).

The Fifth Circuit, however, held that the jury's

consideration of this circumstance rendered Stephens's sentence

unconstitutional. Among other things, the Fifth Circuit

concluded that the reference to this factor in the jury

instructions "may have unduly directed the jury's attention to

[Stephens's] prior convictions." Stephens v. Zant, 648 F.2d 446
(5th Cir. 1981). The Fifth Circuit added that it could not be

"determined with the degree of certainty required in capital

cases that the instruction did not make a critical difference in

the jury's decision to impose the death penalty." Id.

The Supreme Court reversed. The Court noted that the

finding of a statutory aggravating circumstance played a limited

role under the Georgia scheme. Such a finding "narrow[ed] the

22
class of persons convicted of murder who are eligible for the

death penalty" but did not thereafter "play any role in guiding

the sentencing body in the exercise of its discretion." 462 U.S.

at 874. Concluding that this scheme sufficiently structured the

sentencer's discretion, the Court wrote:
Our cases indicate . . . that statutory
aggravating circumstances play a
constitutionally necessary function at the
stage little difference between such an
instruction and the one actually given. Id.
The Court thus commented that "[t]he effect
the erroneous instruction may have had on the
jury is tactors in the process of selecting,
from among that class, those defendants who
will actually be sentenced to death.

Id. at 878 (emphasis added).

The Court then considered whether, under this scheme,

the jury's finding of one vague statutory aggravating

circumstance necessitated the reversal of Stephens's death

sentence even though other valid statutory aggravating

circumstances were also found. The Court held that it did not.

After noting that the jury had "found aggravating circumstances

that were valid and legally sufficient to support the death

penalty," id. at 881, the Court rejected Stephens's argument

that reversal was necessary because the trial judge's

instructions concerning the invalid statutory aggravating

circumstance "may have affected the jury's deliberations," id. at

885. The Court wrote:
In analyzing this contention it is essential
to keep in mind the sense in which that
aggravating circumstance is `invalid.' It is
not invalid because it authorizes the jury to
draw adverse inferences from conduct that is

23
 constitutionally protected. . . . Georgia
[has not] attached the `aggravating' label to
factors that are constitutionally
impermissible or totally irrelevant to the
sentencing process, such as for example the
race, religion, or political affiliation of
the defendant, . . . or to conduct that
actually should militate in favor of a lesser
penalty, such as perhaps the defendant's
mental illness.

Id. at 885 (citations omitted). Rather, the Court observed, the

circumstance in question had been found to be invalid because it

failed "to provide an adequate basis for distinguishing a murder

case in which the death penalty may be imposed from those cases

in which such a penalty may not be imposed." Id. at 886. But

the Court pointed out that "[t]he underlying evidence [was]

nevertheless fully admissible at the sentencing phase." Id.

Responding to the Fifth Circuit's statement that the

judge's instruction "may have unduly directed the jury's

attention to [Stephens's] prior conviction," the Supreme Court

assumed that the instruction had in fact "induc[ed] the jury to

place greater emphasis upon the [defendant's] prior criminal

record than it would otherwise have done." Id. at 888. The

Court held, however, that this emphasis had not violated

Stephens's constitutional rights. The Court stated that it would

have been constitutional for the trial judge to instruct the jury

that "it would be appropriate to take account of a defendant's

prior criminal record in making its sentencing determination,"

id., and the Court saw little difference between such an

instruction and the one actually given. Id. The Court thus

commented that "[t]he effect the erroneous instruction may have

24
had on the jury is therefore merely a consequence of the

statutory label `aggravating circumstance.'" Id. While "[t]hat

label arguably might have caused the jury to give somewhat

greater weight to [the defendant's] prior criminal record than it

otherwise would have given," the Court observed, "any possible

impact cannot fairly be regarded as a constitutional defect in

the sentencing process." Id. at 888-89 (emphasis added). In

reaching this conclusion, however, the Court withheld opinion

"concerning the possible significance of a holding that a

particular aggravating circumstance is `invalid' under a

statutory scheme in which the judge or jury is specifically

instructed to weigh statutory aggravating and mitigating

circumstances in exercising its discretion whether to impose the

death penalty." Id. at 890.

D. The Court considered a sentencing scheme of this

latter type in Clemons v. Mississippi, supra. Under the

Mississippi scheme, like the Georgia scheme, the factfinder at

the penalty phase of a capital case was first required to find

the presence of at least one statutory aggravating circumstance.

See 494 U.S. at 744-45. But the two schemes differed with

respect to the next step that the factfinder was instructed to

perform. Whereas the Georgia scheme called for the factfinder to

consider all aggravating evidence, the Mississippi scheme

required the factfinder to consider only those aggravating

elements enumerated in the statute and to weigh those elements

against the mitigating circumstances. See id. at 743 n.1, 745

25
n.2. The Clemons Court -- employing terminology that can be

quite misleading in the context of the cases now before us --

described Mississippi as a "weighing" state because its statute

called for the jury to "weigh" the statutory aggravating

circumstances against the mitigating circumstances. See id. at

748-49.

In Clemons, the jury found the presence of two

statutorily defined aggravating factors -- that the murder was

committed during a robbery for pecuniary gain and that the murder

was "especially heinous, atrocious, or cruel." Id. at 742.

Concluding that these factors outweighed any mitigating

circumstances, the jury imposed a sentence of death. Id. The

second of the statutory aggravating factors was later held to be

unconstitutionally vague for Eighth Amendment purposes. See

Maynard, 486 U.S. at 362. Noting that Mississippi was a

"weighing state" and that the jury had weighed this statutory

factor in imposing a death sentence, the Court vacated that

sentence and remanded for the Mississippi Supreme Court to

determine whether the remaining valid statutory aggravating

circumstance outweighed the mitigating circumstances or to

conduct a harmless error review. See 494 U.S. at 741.
In subsequent decisions, the Supreme Court has provided

explanations of the reasoning on which the holding in Clemons

rests. For example, in Sochor v. Florida, 112 S. Ct. 2114, 2119

(1992), the Court explained:0

0
Similarly, in Stringer v. Black, 503 U.S. 222, 231 (1992), the
Court observed that "[i]n a nonweighing state, so long as the

26
 In a weighing state . . . there is Eighth
Amendment error when the sentencer weighs an
"invalid" aggravating circumstance in
reaching the ultimate decision to impose a
death sentence. See Clemons v. Mississippi,
494 U.S. 738, 752, 110 S. Ct. 1441, 1450, 108
L.ed.2d 725 (1990). Employing an invalid
aggravating factor in the weighing process
"creates the possibility . . . of
randomness," Stringer v. Black, 503 U.S.
____, _____, 112 S. Ct. 1130, 1139, 117
L.ed.2d 367 (1992), by placing a "thumb [on]
death's side of the scale," id. at ______,
112 S. Ct. at 1137, thus "creat[ing] the risk
[of] treat[ing] the defendant as more
deserving of the death penalty," id. at
_____, 112 S. Ct. at 1139. Even when other
valid aggravating factors exist as well,
merely affirming a sentence reached by
weighing an invalid aggravating factor
deprives a defendant of "the individualized
treatment that would result from actual
reweighing of the mix of mitigating factors
and aggravating circumstances." Clemons,
supra, 494 U.S. at 752, 110 S. Ct. at 1450 .
. . .

sentencing body finds at least one valid aggravating factor, the
fact that it also finds an invalid aggravating factor does not
affect the formal process of deciding whether death is an
appropriate penalty." In a "weighing" state, however, the Court
observed:

[W]hen the sentencing body is told to weigh
an invalid factor in its decision, a
reviewing court may not assume it would have
made no difference if the thumb had been
removed from death's side of t260* ( (_ the
death penalty. On the other hand, those
juries that concluded that the standard had
not been met could not consider the
defendant's prior convictions at all,
andreceived an individualized sentence.

Id.

27
 E. In order to illustrate the reason for the

distinction that the Supreme Court has drawn between "non-

weighing" states like Georgia and "weighing" states like

Mississippi, it is helpful to compare how the effect of the

invalid aggravating circumstance in Zant would differ at the

selection step in the two types of states. As previously noted,

the invalid statutory aggravating circumstance in Zant was "a

substantial history of serious assaultive criminal convictions."

Due to its vagueness, this standard created a serious danger that

different juries would reach different conclusions based on

identical facts. If, for example, a defendant had two prior

convictions, one for a mugging and one for a barroom fight, some

juries might well conclude that these convictions satisfied the

standard, while others might well reach the opposite conclusion.

At the "selection" step in a "non-weighing" state, however, this

possibility would not carry with it an unacceptably high risk of

altering the jury's ultimate sentencing decision. This is so

because, whether or not the jury found that the standard had been

met, it would still consider the same underlying facts, i.e.,

that the defendant had one prior conviction for a mugging and one

for a barroom fight.

By contrast, in a "weighing" state, this vague standard

would create an unacceptably high risk of affecting the jury's

decision at the selection step. Those juries that concluded that

the standard had been met could consider the defendant's prior

convictions, and this factor might well tip the balance in favor

of the death penalty. On the other hand, those juries that

28
concluded that the standard had not been met could not consider

the defendant's prior convictions at all, and this might well tip

the balance against the death penalty. Accordingly, as the

Supreme Court has put it, "[e]mploying an invalid aggravating

factor in the weighing process `creates the possibility . . . of

randomness,' . . . thus `creat[ing] the risk of treat[ing] the

defendant as more deserving of the death penalty.'" Sochor, 112

S. Ct. at 2119 (citations omitted; brackets in original).

F. With this background in mind, it seems quite clear

that Delaware is a "non-weighing" state. Under the Delaware

scheme, the jury at the selection step of the penalty phase is

free to consider all relevant evidence in aggravation. The jury

is not restricted to the statutory aggravating factors. In this

critical feature, the Delaware scheme mirrors the Georgia capital

sentencing scheme discussed in Zant and contrasts sharply with

the Mississippi capital sentencing scheme discussed in Clemons.

We therefore agree with the analysis of the Delaware Supreme

Court and the district court judges who denied the petitions that

are now before us. See Flamer v. Chaffinch, 827 F. Supp. at
1095; Bailey v. Snyder, 826 F. Supp. at 822; Flamer v. State, 490

A.2d at 135.

Flamer's and Bailey's argument that Delaware is a

"weighing" state is no more than a play on the use of the word

"weigh" in the Delaware statute. Flamer and Bailey argue that

Delaware is a weighing state because the Delaware statute states

that in the "selection" step the jury must "[u]nanimously

29
recommend[], after weighing all relevant evidence . . . that a

sentence of death be imposed." Del. Code Ann. tit. 11

§4209(d)(1)(b) (emphasis added). They distinguish the Georgia

statute on the ground that it provided that "the judge shall

consider, or he shall include in his instructions to the jury for

it to consider, any mitigating circumstances or aggravating

circumstances otherwise authorized by law and any of the

following statutory aggravating circumstances which may be

supported by the evidence . . . ." See Zant, 462 U.S. at 865

n.1. (emphasis added). Flamer and Bailey argue that Delaware is

a "weighing" state simply because the Delaware statute instructs

the jury to "weigh" (not consider) aggravating and mitigating

circumstances. See Flamer Br. at 74; Bailey Br. at 64.

We reject these arguments. "[T]he difference between a

weighing State and a non-weighing State is not one of

`semantics.'" Stringer, 503 U.S. at 231. "The Supreme Court's

weighing/non-weighing distinction does not turn simply on whether

or not the word weighing appears in a state's statute." Williams

v. Calderon, 52 F.3d 1456, 1477 (9th Cir. 1995). The fact that

the Delaware statute employs the term "weigh" rather than the

term "consider" is inconsequential for present purposes. The

term "weigh" is defined as meaning "consider or examine for the
purpose of forming an opinion or coming to a conclusion" and

"consider carefully esp[ecially] by balancing one . . . thing

against another in order to make a choice, decision or judgment,"

Webster's Third New International Dictionary 2593 (1973)
(emphasis added); similarly, a synonym of "consider" is "weigh."

30
Id. at 483. Thus, the Delaware legislature's choice of the word

"weighing" rather than "considering" is of no Eighth Amendment

significance.

III.

A. Bailey and Flamer next argue that, even if Delaware

is a "non-weighing" state, their death sentences must

nevertheless be reversed because of the particular nature of the

jury instructions and interrogatories used in their cases. As we

have mentioned, the instructions and interrogatories given in

these two cases were virtually identical. (The relevant portions

of the instructions and interrogatories in both cases are set out

in appendices to this opinion.)

In both cases, the trial judges, quoting Del. Code Ann.

tit. 11, § 4209(d)(1), told the jurors:
A sentence of death shall not be imposed
until the jury finds:

1. Beyond a reasonable doubt at least
one statutory aggravating circumstance; and

2. Unanimously recommend, after
weighing all relevant evidence in aggravation
or mitigation which bears upon the particular
circumstance or details of the commission of
the offense and the character and
propensities of the offender, that a sentence
of death be imposed.

Appendix A, infra, at i (emphasis added); Appendix C, infra, at

vi (emphasis added). The judges also told the jurors that

Delaware law specified certain statutory aggravating

circumstances and that "[t]he State may likewise offer matters in

31
aggravation besides the statutory aggravating circumstances."

Appendix A, infra, at i (emphasis added); Appendix C, infra, at

vi (emphasis added).

The judges then listed the statutory aggravating

circumstances that the state contended had been proven in each

case, and both judges also pointed out to the juries that their

verdicts at the guilt phase had already established the existence

of at least one statutory aggravating factor -- in Flamer's case

that the murders had occurred during the commission of the felony

of robbery,0 and in Bailey's case that the defendant had caused

the death of two persons where the deaths were the probable

consequences of his conduct.
The judges subsequently told the juries:

The law provides that a sentence of death
shall not be imposed unless you find beyond a
reasonable doubt at least one statutory
aggravating circumstance and unanimously
recommend, after weighing all relevant
evidence in aggravation . . . and mitigation
which bears upon the particular circumstances
or details of the commission of the offense
and the character and propensities of the
offender, that a sentence of death be
imposed.

See Appendix A, infra, at ii - iii (emphasis added); Appendix C,

infra, at vii (emphasis added). Shortly thereafter, both judges

reiterated:
In conclusion, a sentence of death shall not
be imposed unless you, the jury, find beyond
a reasonable doubt that at least one
statutory aggravating circumstance has been
established and unanimously recommend a
sentence of death be imposed after weighing

0
See supra page 9.

32
 all relevant evidence in aggravation and
mitigation which bear upon the particular
circumstance and details of the commission of
the offense and the character and
propensities of the offender.

See Appendix A, infra, at iii (emphasis added); Appendix C,

infra, at viii (emphasis added).

The judges then turned to the interrogatory forms that

were used in both cases. The first question on these forms

asked:
1. Does the jury unanimously find that
the following statutory aggravating
circumstance or circumstances exist?

See Appendix B, infra, at v; Appendix D, infra, at ix. This

question was followed by a list of the statutory aggravating

circumstances, and after each circumstance a spot was provided

for the jury to check either "Yes" or "No."0 Id. The judges in

both cases instructed the juries to check these statutory

aggravating circumstances if they found them to have been

established beyond a reasonable doubt. Appendix A, infra, at

iii-iv; Appendix C, infra, at viii.

The second interrogatory question was:
2. Does the jury unanimously recommend
a sentence of death be imposed?

See Appendix B, infra, at v; Appendix D, infra, at ix. Under

this question were spots for the jury to mark "Yes" or "No." Id.

0
In Flamer's case, three statutory aggravating circumstances were
listed. One additional circumstance was deemed by statute to
have been proven as a result of the jury's verdict at the guilt
phase and was therefore not listed. See supra page 9. In
Bailey's case, four statutory aggravating circumstances were
listed.

33
 The third and final question -- which is the focal

point of the arguments concerning the jury instructions and

interrogatories -- stated:
3. If the jury unanimously recommends
that a sentence of death be imposed, please
indicate which statutory aggravating
circumstance or circumstances were relied
upon.

See Appendix B, infra, at v; Appendix D, infra, at ix-x. This

question, like the first, was followed by a list of statutory

aggravating circumstances, and spaces were furnished under each

circumstance for the jury to mark "Yes" or "No."0 Id. The

judges in both cases told the juries:
If you recommend the death penalty, you
will then indicate on the written
interrogatory which statutory aggravating
circumstance or circumstances . . . you
relied upon in reaching your decision.

See Appendix A, infra, at iv; Appendix C, infra, at viii.

Based on these instructions and interrogatories, two

separate arguments are made.

B. The initial argument is that, even if the Delaware
statute "on its face" created a "non-weighing" scheme, jury

interrogatory #3 and the corresponding portion of the

instructions converted the Delaware sentencing scheme "as

applied" into a "de facto" weighing scheme. (For convenience, we

will use the term "interrogatory #3" to refer to both the

interrogatory itself and the corresponding portion of the

instructions.). In support of this argument, it is contended
0
In both cases, four statutory aggravating circumstances were
listed after interrogatory three.

34
that interrogatory #3 mistakenly suggested to the jury that, at

the selection step, it could not rely on non-statutory

aggravating circumstances but was limited to those aggravating

circumstances set out in the Delaware statute. Accordingly,

since it is the hallmark of a "weighing" scheme to require the

jury at the selection step to rely on only the statutory

aggravating factors, it is argued that interrogatory #3 made the

Delaware scheme a "de facto" "weighing" scheme "as applied." We

disagree with this argument for two reasons.

1. First, we believe that the instructions in both

cases, when viewed in their entirety, made it quite clear that

the juries, at the selection step, were free to consider any

evidence in aggravation and thus were not required to restrict

their consideration to only the statutory aggravating factors. In

both cases, the trial judges instructed the juries three times

that, at the selection step, they were to "weigh[] all relevant

evidence in aggravation and mitigation which bears upon the

particular circumstances or details of the commission of the

offense and the character and propensities of the offender."

Moreover, written copies of the instructions were given to the

juries for their use during deliberations in both cases. Flamer

JA at 1466; Bailey Tr. of 2/15/80 at 275-76. At a fourth place

in the instruction, the juries were told that the state was

permitted to "offer matters in aggravation besides the statutory

aggravating circumstances." Thus, the juries in both cases were

expressly, unambiguously, and repeatedly told that, at the

35
selection step, they were free to consider non-statutory

aggravating circumstances.

While it is now argued that jury interrogatory #3

conveyed a conflicting message, it is important to note that this

interrogatory did not expressly contradict the instructions

quoted above. In other words, interrogatory #3 did not expressly

inform the juries that they could not consider non-statutory

aggravating evidence. Instead, as noted, interrogatory #3 merely

told the juries that, if they unanimously recommended a death

sentence, they should indicate "which statutory aggravating

circumstance or circumstances were relied upon."0 The worst that

can fairly be said of the wording of this interrogatory question

is that it might be read to suggest that the jury could not

recommend a death sentence unless it relied, at least in part, on

a statutory aggravating circumstance.

It is, of course, well established that a jury

instruction may not be judged "`in artificial isolation,' but

must be considered in the context of the instructions as a whole

and the trial record.'" Estelle v. McGuire, 502 U.S. 62, 72

(1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The

same rule, we believe, should apply to a jury interrogatory.

Therefore, in the cases now before us, we must consider the

0
As noted, the corresponding portion of the instructions stated:

If you recommend the death penalty, you will
then indicate on the written interrogatory
which statutory aggravating circumstance or
circumstances . . . you relied upon in
reaching your decision.

36
entire charge and interrogatories to determine whether, as a

result of interrogatory #3, there was a "reasonable likelihood"

that the jurors were led to believe that they could not consider

non-statutory aggravating factors at the "selection" step. See

Estelle, 112 S. Ct. at 482 n.4; Boyde v. California, 494 U.S.

370, 380 (1990); Rock v. Zimmerman, 959 F.2d 1237, 1247 & n.3 (3d

Cir.) (in banc), cert. denied, 112 S. Ct. 3036 (1992).

As we have noted, the juries were expressly, clearly,

and repeatedly instructed, orally and in writing, that at the

"selection" step they were to weigh all relevant evidence in

aggravation. We do not think that there was a "reasonable

likelihood" that the juries, in the face of these express

instructions, nevertheless inferred from interrogatory #3 that

they were actually limited to considering the statutory

aggravating circumstances. See Shannon v. United States, 114 S.

Ct. 2419, 2427 (1994) (it is "'the almost invariable assumption

of the law that jurors follow their instructions'") (quoting

Richardson v. Marsh, 481 U.S. 200, 206 (1982)). If the jury in

either case had interpreted interrogatory #3 as implying such a

restriction -- and thus as directly conflicting with the clear

and explicit instructions repeatedly given by the trial judges --

the reasonable thing for the jury to have done would have been to

have asked for clarification on this point. But no such request

was made in either case.0

0
It is noteworthy that none of the participants in either trial
seemed to think that this wording presented any problems. As
noted, the same interrogatory form was used and the same
corresponding instructions were given by two different trial

37
 For these reasons, we are convinced that the

instructions and interrogatories in each case, when viewed in

their entirety, made it clear that the jury, at the selection

step, was free to consider all evidence in aggravation, and was

not limited to the statutory aggravating circumstances.

2. Second, even if this point had not been made clear

and the juries had been left with the mistaken belief that they

could consider only the statutory aggravating circumstance at the

selection step, we are at a loss to understand how this could

have materially prejudiced these defendants. It is not claimed

that interrogatory #3 restricted the juries in their

consideration of any evidence in mitigation, i.e., any evidence

that might have been helpful to the defendants. Instead, it is

claimed that interrogatory #3 improperly restricted the

aggravating evidence that the juries could consider. We can

understand how an improper restriction on aggravating evidence

could harm the prosecution, but it simply makes no sense to argue

that death sentences should be overturned because the juries were

unduly restricted in their consideration of the evidence

militating in favor of the death penalty.

C. The remaining argument is that the references to

invalid statutory aggravating circumstances in the instructions

judges. The record does not reflect that either Flamer's or
Bailey's trial counsel objected to the wording of interrogatory
#3 or the corresponding portion of the instructions. Moreover,
although the implication now attributed to interrogatory #3 was
potentially damaging to the prosecution, the prosecutors did not
object to this wording in either case.

38
and interrogatories in these two cases violated the Eighth

Amendment because they led the juries to give much greater weight

or consideration to the facts underlying the invalid statutory

aggravating circumstances than those facts would otherwise have

received. We see no merit in this argument.

In large part, this argument relies on the effect of

the statutory label "aggravating circumstance," and to this

extent this contention is foreclosed by the Supreme Court's

decision in Zant. There, as previously noted, the Supreme Court

recognized that such a label "arguably might have caused the jury

to give somewhat greater weight to petitioner's prior criminal

record than it otherwise would have given." 462 U.S. at 888.

Nevertheless, the Court held that "any possible impact" resulting

from the use of that label "could not fairly be regarded as a

constitutional defect in the sentencing process." Id. at 889

(footnote omitted).

While Zant would thus appear to be controlling, it is

argued that in the cases now before us interrogatory #3, by

suggesting that the juries could not consider non-statutory

aggravating factors at the selection step, placed far more

emphasis on the invalid factors than occurred in Zant. There

are, however, at least three fatal flaws in this argument.

First, we see no difference of constitutional dimension

between the directions given to the jury in these cases and those

given to the jury in Zant. In the cases now before us,

interrogatory #3 and the corresponding portion of the

instructions told the juries that, if they unanimously

39
recommended a death sentence, they should indicate "which

statutory aggravating circumstance or circumstances were relied

upon." In Zant, the jury was told:
If the jury verdict on sentencing fixes
punishment at death by electrocution, you
shall designate in writing, signed by the
foreman, the aggravating circumstance or
circumstances which you have found to have
been proven beyond a reasonable doubt.

462 U.S. at 866.

Second, as discussed above, we reject the argument that

the instructions and interrogatories in the cases before us, when

considered in their entirety, created a "reasonable likelihood"

that the juries were led to believe that, at the selection step,

they were not free to consider all evidence in aggravation, as

opposed to only the statutory aggravating circumstances.

Finally, even if the juries had believed that they

could not consider non-statutory aggravating factors at the

selection step, this would not have naturally caused the juries

to give the facts underlying the invalid statutory aggravating

circumstances any greater weight than those facts would have

otherwise received. An example may help to clarify this point.

Suppose that, at the selection step in a non-weighing state like

Delaware, there are three items of aggravating evidence. One

item does not fall within any of the statutory aggravating

circumstances; let us say it is a prior history of convictions

for property crimes. Another item falls within an

unobjectionable statutory aggravating circumstance; let us say

that this item is the killing of more than one person. The final

40
item falls within a vague statutory aggravating circumstance. Let

us say that the vague statutory aggravating circumstance is that

the murders were "heinous," and let us say that the prosecution

contends that the murders were "heinous" because they were

carried out in a particularly painful manner. If the jury in

this hypothetical case was erroneously led to believe that it

could not consider non-statutory factors at the selection step,

the jury would not consider the first item -- the prior history

of convictions for property crimes. But we do not understand why

this unwarranted restriction would result in the jury's giving

the facts underlying the vague factor -- that the murders were

allegedly committed in a particularly painful manner -- any

greater weight than those facts would have otherwise received.

The jury would consider the second and third statutory factors;

and as we explicate supra in Part II C, the third factor, because

it was specific aggravating evidence of the painful manner of

causing death in this case, would be relevant. See Zant, 462

U.S. at 885. The fact that the jury considered only two of the

three permissible aggravating factors would not give wundue

weight to either of the two factors considered; nor would the

jury consider any impermissible factor. Id. Hence, we are

unpersuaded by the argument that the erroneous message allegedly

conveyed by interrogatory #3 in the cases before us somehow led

the juries to give greater weight to the facts underlying the

invalid statutory aggravating circumstances.

For all these reasons, we reject the contention that

these cases can be distinguished from Zant on the ground that the

41
references in these cases to invalid statutory aggravating

circumstances led the juries to give much greater weight to the

facts underlying those circumstances. On the contrary, we find

Zant to be controlling, and we therefore reject the petitioners'

arguments.0

IV.

We now turn to Bailey's additional arguments.0 We will

first discuss those that concern the guilt phase of his trial,

and will then address those that pertain to the penalty phase.

A. Guilt Phase.

1. Bailey first argues that the trial court

violated his constitutional right to an impartial jury by denying

his request for a change of venue due to prejudicial pretrial

publicity in Kent County, where the murders occurred. Bailey

does not contend that any of the jurors who sat on his case were

biased or that the trial judge erred in denying any challenges

for cause. Rather, Bailey maintains that "the publicity in this

case . . . combined with widespread contact by members of the

0
While we do not find constitutional error in these cases, we
strongly disapprove of the practice of a judge in a non-weighing
state using a jury interrogatory that asks which statutory
aggravating circumstance the jury "relied upon" in recommending
the death penalty. Because statutory aggravating circumstances
have no special significance at the "selection" phase, such an
interrogatory is potentially misleading and injects unnecessary
confusion into the jury's deliberations.
0
As noted, Flamer's other arguments are addressed in a separate
panel opinion that is being filed simultaneously with this
opinion.

42
[venire] prior to trial resulted in . . . such a `wave of public

passion' that made a fair trial unlikely in Kent County no matter

the record assurances of impartiality of the twelve jurors who

decided Bailey's fate." Bailey Br. at 31.

Bailey's argument relies chiefly on Irvin v. Dowd, 366

U.S. 717 (1961), which "held that adverse pretrial publicity can

create such a presumption of prejudice in a community that the

jurors' claims that they can be impartial should not be

believed." Patton v. Yount, 467 U.S. 1025, 1031 (1984). Irvin,

however, was a case involving "extraordinary publicity," Mu'Min

v. Virginia, 500 U.S. 415, 427 (1991), that had a remarkably

prejudicial effect on the minds of potential jurors. See id. at

428. In order to invoke Irvin's presumption of prejudice, "[t]he

community and media . . . reaction must have been so hostile and

so pervasive as to make it apparent that even the most careful

voir dire process would be unable to assure an impartial jury."

Rock v. Zimmerman, 959 F.2d at 1252. "Such cases are exceedingly

rare." Id. at 1253. See also United States v. De Peri, 778 F.2d

963, 972 (3d Cir. 1985) ("It is the rare case in which adverse

pretrial publicity will create a presumption of prejudice that

overrides the jurors' assurances that they can be impartial.").

The record in this case falls far short of satisfying

the Irvin standard. In support of his motion for a change of

venue, Bailey relied on a series of articles in the Delaware

State News that appeared between May 22, 1979, the day after the

murders, and June 13, 1979. The Delaware Supreme Court

accurately characterized these stories as follows:

43
 [T]he articles were indisputably factual in
nature, but prejudicial and inflammatory only
to the extent arising from the normal and
natural reaction to any purely factual news
item about a very serious crime.

490 A.2d at 162. In addition, as the Delaware Supreme Court

noted, many of the stories centered, not so much on Bailey or the

facts of the murders, but on the political controversy about the

work release program. See Bailey Joint Appendix ("Bailey JA") at

247, 250, 252, 254, 255, 258. We have read the articles on which

Bailey relied, and we conclude that they are neither

quantitatively nor qualitatively comparable to the publicity in

Irvin. Indeed, the pretrial publicity in this case was clearly

no more extensive or prejudicial than that in cases such as

Mu'Min,0 Patton,0 Murphy v. Florida, 421 U.S. 794, 799 (1974), and

United States v. Provenzano, 620 F.2d 985, 995-96 (3d Cir.),

cert. denied, 449 U.S. 899 (1980), in which no presumption of

prejudice was found.

It is also significant that there was a lapse of eight

months between the publication of the last newspaper story on
which Bailey relied (June 13, 1979) and the start of jury

selection (February 12, 1980). "That time soothes and erases is

a perfectly natural phenomenon, familiar to all." Patton, 467

U.S. at 1034. In Murphy, the Supreme Court noted that extensive

publicity had stopped about seven months before jury selection

and found no presumption of prejudice. 421 U.S. at 802. See

0
See 500 U.S. at 418-19.
0
See Yount v. Patton, 710 F.2d 956, 962-63 (3d Cir. 1983), rev'd,
467 U.S. 1025 (1984).

44
also Patton, 467 U.S. at 1035 n.11. In this case, the Delaware

Supreme Court appropriately reached a similar conclusion. 490

A.2d at 162.

Finally, the effect of the publicity in this case on

the members of the venire was not at all comparable to that in

Irvin -- or even in Patton. "In Irvin, the trial court excused

over half of a panel of 430 persons because their opinions of the

defendant's guilt were so fixed that they could not be impartial,

and 8 of the 12 jurors who sat had formed an opinion as to

guilt." Mu'Min, 500 U.S. at 428. In Patton, "all but 2 of the

163 veniremen questioned about the case had heard of it," "77% .

. . admitted they would carry an opinion into the jury box," and

"8 of the 14 jurors and alternates actually seated admitted that

at some time they had formed an opinion as to [the defendant's]

guilt." 467 U.S. at 1029.

In this case, Bailey cannot show that the pretrial

publicity or the community familiarity with the case had any

comparable effect on the members of the venire. The most that

Bailey claims is that about one-half of the venirepersons

answered in the affirmative when they were asked a group of eight

questions touching on many matters in addition to familiarity

with the case.0 Moreover, only one juror and one alternate were

taken from the group of venirepersons who answered any of these

0
These questions concerned the venirepersons' bias for or against
the defendant, as well as their familiarity with the case, the
defendant, the attorneys, the prospective witnesses, the victims
and their family members, and any employees of a police agency or
the state Attorney General's office. See 855 F. Supp. at 1406.

45
questions in the affirmative; neither of these two individuals

expressed any familiarity with the case; and Bailey did not move

to excuse either for cause. See 855 F. Supp. at 1407-08.

For these reasons, we hold that no presumption of

prejudice is justified in this case and that the trial judge's

denial of Bailey's motion for a change of venue did not violate

Bailey's constitutional right to an impartial jury.

2. Bailey next contends that his constitutional

right to due process was violated as a result of improper

statements made by the prosecution during closing argument at the

guilt phase of his trial. The district court analyzed this

argument at length and concluded that it did not provide a basis

for granting the writ. See 855 F. Supp. at 1402-04. We are in

essential agreement with the district court's analysis.

Bailey did not raise this argument at trial, and when

he first raised it during the state post-conviction proceedings,

it was found to have been procedurally defaulted under state law.

See Bailey JA at 19-24, 37a. Thus, federal habeas review of this

claim is barred unless Bailey can "demonstrate cause for the

default and actual prejudice as a result of the alleged violation

of federal law, or demonstrate that failure to consider the

claim[] will result in a fundamental miscarriage of justice."

Coleman v. Thompson, 501 U.S. 722, 724 (1991).
Bailey contends that he demonstrated "cause" because

his trial attorneys' failure to object at trial violated his

constitutional right to the effective assistance of counsel

pursuant to the standard set out in Strickland v. Washington, 466

46
U.S. 668 (1984). Such a violation would provide "cause," see

Coleman, 501 U.S. at 724; Carrier, 477 U.S. at 488, but we agree

with the district court, 855 F. Supp. at 1402-04, and the state

Superior Court, Bailey JA at 23, that Bailey has not shown that

his experienced attorneys were constitutionally deficient. One

of these attorneys, Howard Hillis, testified that he decided not

to object at trial for strategic reasons; this explanation was

credited by the Superior Court, Bailey JA at 22; and that finding

is binding on us in this proceeding. See 28 U.S.C. § 1254(d).

In addition, as the district court observed:
[I]t was objectively reasonable for Hillis to
conclude that the prosecutor's acerbic
comments undermined the State's case more
than they hurt Bailey's case. It was also
objectively reasonable for Hillis to respond
to the prosecutor's remarks by addressing
them in his own closing argument rather than
by making an objection, as Hillis believed
the trial judge would not be receptive to
such an objection.

855 F. Supp. at 1404.

Furthermore, we agree with the district court, id., and

the state Superior Court, Bailey JA at 23, that Bailey has not

shown that his attorneys' failure to object at trial resulted in

"prejudice" under the Strickland test -- i.e., that "there is a
reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694. We also hold that failure to

consider Bailey's argument would not "result in a fundamental

miscarriage of justice." Coleman, 501 U.S. at 724. Moreover,

even if we were to consider Bailey's argument, we would concur

47
with the district court that Bailey has not shown that the

prosecutor's comments "so infected the trial with unfairness as

to make the resulting conviction a denial of due process." 855

F. Supp. at 1404 (quoting Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974)). See also, e.g., Dardan v. Wainwright, 477 U.S.

168, 181 (1986); Todaro v. Fulcomer, 944 F.2d 1079, 1082 (3d Cir.

1991), cert. denied, 503 U.S. 909 (1992).

3. Bailey's final argument concerning the guilt

phase of his trial is that his constitutional right to due

process was violated when the trial judge, in his jury

instructions, described a "reasonable doubt" as a "substantial

doubt." Bailey contends that this instruction was

unconstitutional under Cage v. Louisiana, 498 U.S. 39 (1990).

However, Bailey did not object to this instruction at trial, and

the Delaware courts held in the post-conviction proceedings that

his objection was procedurally barred under state law. See

Bailey JA at 26, 37a. Bailey contends that he is nevertheless

entitled to federal habeas review because he has demonstrated

"cause" and "prejudice." He maintains that "cause" was

established because his attorneys' failure to object at trial

constituted constitutionally ineffective assistance. We hold

that Bailey's reasonable doubt claim must be rejected.

We agree with the district court that federal habeas

review of this claim is barred due to Bailey's procedural

default.0 Although Bailey contends that the allegedly

0
The district court also held, and the state has argued on
appeal, that the nonretroactivity principle of Teague v. Lane,

48
ineffective assistance of his trial attorneys demonstrated

"cause" for this default, we find this argument to be

insubstantial. Bailey's trial occurred long before Cage. Just

one year before Bailey's trial, the Delaware Supreme Court had

approved an instruction virtually identical to the one given

here. See Wintjen v. State, 398 A.2d 780, 781 n.2 (Del. 1979).

In addition, the use of the phrase "substantial doubt" was

supported by federal case law. See United States v. Smith, 468

F.2d 381, 383 (3d Cir. 1972) ("Reasonable doubt of itself is

substantial . . . . It is sufficient if the jury understands

reasonable doubt to mean `a real or substantial doubt' generated

by the evidence or lack of it."). Under the circumstances, the

failure of Bailey's attorneys to object to the reference in the

instructions to "substantial doubt" did not fall below an

objective standard of reasonableness. Strickland, 466 U.S. at

687-91. Consequently, Bailey's attorneys did not render

constitutionally ineffective assistance, and Bailey cannot show

"cause" for the procedural default.

489 U.S. 288, 300 (1989), precludes consideration of Bailey's
Cage argument. The question whether Cage may be applied
retroactively in habeas proceedings has divided the courts of
appeals. Compare Skelton v. Whitley, 950 F.2d 1037, 1043 (5th
Cir. 1992), cert. denied, 113 S. Ct. 102 (1992) (not retroactive)
with Adams v. Aiken, 41 F.3d 175, 177-78 (4th Cir. 1994), cert.
denied. 115 S. Ct. 2281 (1995) (retroactive) and Nutter v. White,
39 F.3d 1154 (11th Cir. 1994) (same). While the question of
retroactivity under Teague should be decided before reaching the
merits of a habeas claim, see Caspari v. Bohlen, 114 S. Ct. 948,
953 (1994), neither binding precedent nor logic seems to require
that the question of retroactivity be considered prior to the
question of procedural default. Accordingly, we have turned
first to the question of procedural default and have thus found
it unnecessary to reach the complicated issues related to Teague.

49
 Moreover, failure to consider Bailey's claim will not

result in a "fundamental miscarriage of justice," Coleman, 501

U.S. at 750. We find strong support for this holding in Viktor

v. Nebraska, 114 S. Ct. 1239 (1994). In Viktor, the Supreme

Court held that due process was not violated by jury instructions

that described reasonable doubt as follows:
A reasonable doubt is an actual and
substantial doubt arising from the evidence,
from the facts or circumstances shown by the
evidence, or from the lack of evidence on the
part of the state, as distinguished from a
doubt arising from mere possibility, from
bare imagination, or from fanciful
conjecture.

Id. at 1249 (emphasis added). The Court noted two definitions of

the term "substantial": "not seeming or imaginary" and "that

specified to a large degree." Id. (quoting Webster's Third New

International Dictionary, 2280 (2d ed. 1979)). Finding the first

definition "unexceptionable" but the latter ambiguous, the Court

wrote:
Any ambiguity, however, is removed by reading
the phrase in the context of the sentence in
which it appears: "A reasonable doubt is an
actual and substantial doubt . . . as
distinguished from a doubt arising from mere
possibility, from mere imagination, or from
fanciful conjecture." This explicit
distinction between a substantial doubt and a
fanciful conjecture was not present in the
Cage instruction.

Id. at 1250.

We find the challenged portion of the jury instructions

in this case to be essentially the same as that in Viktor. Here,

the judge told the jury:

50
 Reasonable doubt does not mean a vague,
speculative or whimsical doubt, nor a mere
possible doubt, but a substantial doubt and
such a doubt as intelligent, reasonable and
impartial men and women may honestly
entertain after a careful and conscientious
consideration of the evidence in the case.

Bailey JA at 168-69. Thus, just as the Viktor instruction

contrasted a "substantial doubt" with "a doubt arising from a

mere possibility, from bare imagination, or from fanciful

conjecture," the instruction here contrasted a "substantial

doubt" with "a mere possible doubt," "a vague, speculative"

doubt, and a "whimsical doubt."

It is true that the Supreme Court in Viktor went on to

observe that "[i]n any event," the instruction in that case

provided an accurate, "alternative definition of reasonable

doubt, a doubt that would cause a reasonable person to hesitate

to act." 114 S. Ct. at 1250. However, as Supreme Court's use of

the phrase "in any event" suggests, we do not interpret the

Court's opinion to mean that this alternative definition was

essential to its holding. Accordingly, we believe that Viktor

supports the constitutionality of the challenged instruction in

this case and, in any event, clearly shows that it did not result

in a fundamental miscarriage of justice.

B. Penalty Phase. Bailey contends that his death

sentences should be overturned for two reasons in addition to

those discussed in Parts II and III of this opinion.

51
 1. First, Bailey argues that certain statements

made by the prosecutors during opening and closing arguments at

the penalty hearing violated his right to due process. However,

Bailey's attorneys did not object to any of these comments, and

his argument concerning these remarks was held in the state post-

conviction proceedings to be barred for procedural default under

state law. Although Bailey contends that his attorneys' failure

to object amounted to constitutionally ineffective assistance and

thus established "cause" for the procedural default, we agree

with the district court, for essentially the same reasons

explained in that court's opinion, that Bailey did not satisfy

either prong of the Strickland test and that federal habeas

review of this claim is therefore barred. See 855 F. Supp. at

1406.

2. Second, Bailey maintains that the trial court

violated his constitutional rights by instructing the jury at the

penalty phase that, by virtue of its verdicts finding Bailey

guilty of the first-degree murders of Gilbert and Clara

Lambertson, it had already found the existence of one of the

statutory aggravating circumstances -- engaging in a "course of

conduct [that] resulted in the deaths of 2 or more persons where

the deaths are a probable consequence of the defendant's

conduct." Del. Code Ann. tit. 11, § 4209 (e)(1)k. Relying on

Arizona v. Rumsey, 467 U.S. 203 (1984), Bailey argues that "a
penalty hearing is `like a trial' on the issue of punishment."

Bailey's Br. at 70. Bailey then notes that due process prohibits

the use of conclusive presumptions at a trial, see Sandstrom v.

52
Montana, 442 U.S. 510 (1979), and he likens the judge's

instruction to a conclusive presumption. He consequently argues

that the court's instruction violated due process.

We see no merit in this argument. The guilt and

penalty phases of a capital trial are parts of a single

proceeding, and there is no constitutional requirement that they

be treated as if they were two entirely separate trials. The

Supreme Court has held that a state may constitutionally employ a

plan that provides for the same jury to sit in both the guilt and

penalty phases of a capital murder trial. See Lockhart v.

McCree, 476 U.S. 162, 180-81 (1986); Gregg v. Georgia, 428 U.S.

153, 160, 163 (1976) (opinion of Stewart, Powell, and Stevens,

J.J.). When such a plan is used, evidence that is admitted at

the guilt phase may be considered by the jury at the penalty

phase. Lockhart, 476 U.S. at 180-81. Furthermore, the finding

of a statutory aggravating circumstance may occur either at the

guilt or penalty phase. See Tuilaepa, 114 S. Ct. at 2634 ("[W]e

have indicated that the trier of fact must . . . find one

`aggravating circumstance' (or its equivalent) at either the

guilt or penalty phase."); Lowenfield v. Phelps, 484 U.S. 231,
244-46 (1988). We therefore see no federal constitutional error

in the trial court's instructing the jury that its verdicts at

the guilt phase (finding that Bailey had murdered Gilbert and

Clara Lambertson) had already established the existence of one

statutory aggravating circumstance (that his conduct had

"resulted in the deaths of 2 or more persons where the deaths

[were] the probable consequence of the defendant's conduct").

53
 In any event, even if this instruction were erroneous,

the error would be harmless.0 Since the jury had just found

Bailey guilty of intentionally killing the two Lambertsons, there

can be no reasonable doubt that, even if the challenged

instruction had not been given, the jury would have found at the

penalty phase that Bailey had engaged in conduct that caused the

deaths of two people and that these deaths were the probable

consequences of his conduct.0

0
In an effort to suggest that the jury might not have found the
existence of this statutory aggravating circumstance were it not
for the challenged instruction, Bailey points out that the jury
sent a note to the trial judge during its deliberations stating
that it was "troubled somewhat with the word `probable' in the
third statutory aggravating circumstance listed in [the] charge."
Bailey JA at 200(A). Bailey seems to suggest that this note
revealed that the jury was not sure whether the deaths of the
Lambertsons were the "probable" consequence of Bailey's conduct.
This suggestion, however, appears far-fetched. Since the same
jury had found in the verdicts returned on Friday, February 22,
1980, that Bailey had intentionally killed the Lambertsons, it is
hard to see how the jury could doubt on Monday, February 25,
1980, when the note was sent to the judge, that the Lambertsons'
deaths were the probable consequences of Bailey's conduct.

There is a far more likely explanation for the jury's note:
the jury may not have understood that the probability standard
set out in the statutory aggravating circumstance was merely the
minimum necessary. In other words, since the evidence showed
that Bailey shot both Lambertsons multiple times at close range
with a shotgun and pistol and since the jury had already found
that he intended to kill them, the jury may not have completely
understood that the probability standard in the statutory
aggravating circumstance could be satisfied by proof that the
Lambertsons' deaths were not merely the probable consequences of
Bailey's conduct but the intended and almost certain consequences
of those actions. Accordingly, we are convinced that any error
was harmless.
0
In a habeas proceeding, the appropriate harmless error standard
is "whether the error `had substantial and injurious effect or
influence in determining the jury's verdict.'" Brecht v.
Abrahamson, 113 S. Ct. 1710, 1722 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)). See also O'Neal v.

54
 V.

In summary, we reject Bailey's and Flamer's arguments

concerning the references in the jury instructions and

interrogatories to certain vague or duplicative aggravating

circumstances. We also reject all of Bailey's remaining

arguments. Accordingly, the orders of the district court denying

the petitions for writs of habeas corpus will be affirmed in both

cases.

McAninch, 115 S. Ct. 992 (1995). That standard was plainly met
here.

55
 APPENDIX A

Flamer Jury Instructions (Flamer JA at 1460-65)

I shall instruct you as to the applicable

principles of law governing the punishment to be

imposed in this case. No single one of these

instructions states all of the law applicable to this

determination. Therefore, you should listen to and

consider all the instructions together. You are to

apply the law to these facts and in this way decide the

punishment to be imposed in the case.

The criminal code says as follows: "Upon a

conviction of guilt of a defendant of first degree

murder, the Superior Court shall conduct a separate

hearing to determine whether the defendant shall be

sentenced to death or to life imprisonment without

benefit of probation or parole.

"A sentence of death shall not be imposed until

the jury finds:

"1. Beyond a reasonable doubt at least one

statutory aggravating circumstances; and

56
 "2. Unanimously recommend, after weighing all

relevant evidence in aggravation or mitigation which

bears upon the particular circumstances or details of

the commission of the offense and the character and

propensities of the offender, that a sentence of death

be imposed. Where the jury submits such a finding and

recommendation, the Court will sentence the defendant

to death. A finding by the jury of a statutory

aggravating circumstance, and a consequent

recommendation of death, supported by the evidence,

shall be binding on the Court."

The Delaware law specifies certain statutory

aggravating circumstances which the State may contend

exist in a particular case. The law does not specify

mitigating circumstances, but the defense may offer

evidence relating to any mitigating circumstances which

it contends exist in a particular case. The State may

likewise offer matters in aggravation besides the

statutory aggravating circumstances.

An aggravating circumstance is a factor which

tends to make the defendant's conduct more serious, or

- i-

57
the imposition of a penalty of death appropriate. A

mitigating circumstance is any factor which tends to

make the defendant's conduct less serious, or the

imposition of a penalty of death inappropriate.

In this case the State contends that the following

four statutory aggravating circumstances exist:

1. The murder was committed while the defendant

was engaged in the commission of robbery.

2. The defendant's course of conduct resulted in

the deaths of two or more persons where the deaths are

a probable consequence of the defendant's conduct.

3. The murders were outrageously or wantonly

vile, horrible or inhuman.

4. The murders were committed for pecuniary gain.

You cannot recommend that this defendant be

sentenced to death unless you find beyond a reasonable

doubt that at least one statutory aggravating

circumstance exists.

58
 In this regard an applicable portion of the

Delaware law provides that in any case where the

defendant has been convicted of murder in the first

degree in violation of 11 Delaware Code, Section

636(a)(2) that conviction shall establish the existence

of a statutory aggravating circumstance.

In this case the defendant has been convicted of

violating 11 Delaware Code, Section 636(a)(2) which

reads: "Murder in the first degree. A person is

guilty of murder in the first degree when in the course

of and in furtherance of the commission of a felony, he

recklessly causes the death of another person."

Therefore, that statutory aggravating

circumstances has been established beyond a reasonable

doubt, and you are so instructed.

The law provides that a sentence of death shall

not be imposed unless you find beyond a reasonable

doubt at least one statutory aggravating circumstance

and unanimously recommend, after weighing all relevant

- ii -

59
evidence in aggravation, including but not limited to

the statutory aggravating circumstance or circumstances

that you have already found to exist, and mitigation

which bears upon the particular circumstances or

details of the commission of the offense and the

character and propensities of the offender, that a

sentence of death be imposed. You are to weigh any

mitigating factors against the aggravating factors to

determine the penalty.

If you have a reasonable doubt about the existence

of any statutory aggravating circumstance, you must

give the defendant the benefit of that reasonable doubt

and find that the statutory aggravating circumstance

does not exist.

I would remind you a reasonable doubt means a

doubt based upon good and sufficient reasons and common

sense.

Your unanimous recommendation for the imposition

of the death penalty, if supported by the evidence, is

binding on the Court. Similarly, if you are not

unanimous in your recommendation to impose the death

penalty, or you cannot agree unanimously as to your

recommendations, then the Court is bound to impose a

60
sentence of life imprisonment without benefit of

probation or parole.

In conclusion, a sentence of death shall not be

imposed unless you, the jury, find beyond a reasonable

doubt at least one statutory aggravating circumstance

has been established and unanimously recommend a

sentence of death be imposed after weighing all

relevant evidence in aggravation and mitigation which

bear upon the particular circumstances and details of

the commission of the offense and the character and

propensities of the offender.

Should you fail to agree unanimously to either of

these two matters, the Court shall sentence the

defendant to life imprisonment without benefit of

probation or parole.

As I have previously instructed, you have found a

statutory aggravating circumstance by returning

verdicts of guilty of murder in the first degree in

violation of 11 Delaware Code, Section 636(a)(2),

recklessly causing the death during commission of a

felony. You will be given a written interrogatory on

which to indicate if you find any additional statutory

- iii -

61
aggravating circumstance. If you do not unanimously

find beyond a reasonable doubt the existence of any

additional aggravating circumstance, you should

indicate accordingly.

You will next indicate on the written

interrogatory that will be given to you whether the

jury unanimously recommends that a death sentence be

imposed.

If you recommend the death penalty, you will then

indicate on the written interrogatory which statutory

aggravating circumstance or circumstances, including

the violation of 11 Delaware Code, Section 636(a)(2),

you relied upon in reaching your decision.

62
- iv -

63
 APPENDIX B

Flamer Jury Interrogatories (Flamer Rec. at 30)

1. Does the jury unanimously find that the following

statutory aggravating circumstance or circumstances exist?

(a) The defendant's course of conduct resulted in the

deaths of two or more persons where the deaths are a

probable consequence of the defendant's conduct?

Yes x No

(b) The murder was outrageously or wantonly vile,

horrible or inhuman?

Yes x No

(c) The murder was committed for pecuniary gain?

Yes x No

2. Does the jury unanimously recommend that a sentence

of death be imposed:

Yes x No.

64
 3. If the jury unanimously recommends that a sentence

of death be imposed, please indicate which statutory aggravating

circumstance or circumstances were relied upon:

(a) The murder was committed while the defendant was

engaged in the commission of a robbery.

Yes x No

(b) The defendant's course of conduct resulted in the

deaths of two or more persons where the deaths are a

probable consequence of the defendant's conduct.

Yes x No

(c) The murder was outrageously or wantonly vile,

horrible or inhuman.

Yes x No

(d) The murder was committed for pecuniary gain.

Yes x No

- v -

65
 APPENDIX C

Bailey Jury Instructions (Bailey Tr. of 2/25/1980

at 270-75)

I shall now instruct you as to the applicable

principles of law governing the punishment to be

imposed in this case. No single one of these

instructions states all of the law applicable to this

determination; therefore you must listen to and

consider all of these instructions together. You are

to apply the law to the facts and in this way decide

the punishment to be imposed in the case.

The criminal code provides as follows:

"Upon a conviction of guilt of a defendant of

first degree murder, the Superior Court shall conduct a

separate hearing to determine whether the defendant

should be sentenced to death or to life imprisonment

without benefit of probation or parole or any other

reduction.

"A sentence of death shall not be imposed unless

the jury finds:

"1. Beyond a reasonable doubt at least one

statutory aggravating circumstances; and,

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 "2. Unanimously recommend, after weighing all

relevant evidenced in aggravation or mitigation which

bears upon the particular circumstances or details of

the commission of the offense and the character and

propensities of the offender, that a sentence of death

be imposed. Where the jury submits such a finding and

recommendation, the Court shall sentence the defendant

to death. A finding by the jury of a statutory

aggravating circumstance, and a consequent

recommendation of death supported by the evidence,

shall be binding on the Court."

The Delaware law specifies certain statutory

aggravating circumstances which the State may contend

exist in a particular case. The law does not specify

mitigating circumstances, but the defense may offer

evidence relating to mitigating circumstances which it

contends exist in a particular case. The State may

likewise offer matters in aggravation besides the

statutory aggravating circumstances.

- vi -

An aggravating circumstance is a factor which

tends to make the defendant's conduct more serious or

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the imposition of a penalty of death appropriate. A

mitigating circumstance is any factor which tends to

make the defendant's conduct less serious or the

imposition of a penalty of death inappropriate.

In this case, the State contends the following

four statutory aggravating circumstances exist:

1. The murders were committed by one who had

escaped from a place of confinement.

2. The murders were committed while the defendant

was engaged in flight after committing robbery.

3. The defendant's course of conduct resulted in

the deaths of two persons where the deaths were a

probable consequence of the defendant's conduct.

4. The murders were outrageously or wantonly

vile, horrible or inhuman.

You cannot recommend this defendant be sentenced

to death unless you find beyond a reasonable doubt that

at least one statutory aggravating circumstance exists.

You have already convicted the defendant of

causing the death of two persons; therefore, that

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aggravating circumstance has been established beyond a

reasonable doubt and you are so instructed.

The law provides that a sentence of death shall

not be imposed unless you find beyond a reasonable

doubt at least one statutory aggravating circumstance

and unanimously recommend, after weighing all relevant

evidence in aggravation and mitigation which bears upon

the particular circumstances or details of the

commission of the offense and the character and

propensities of the offender that a sentence of death

be imposed. You are to weigh any mitigating factors

against the aggravating factors to determine the

penalty.

If you have a reasonable doubt about the existence

of any statutory aggravating circumstance, you must

give the defendant the benefit of that reasonable doubt

and find that that statutory aggravating circumstance

does not exist.

- vii -

I would remind you that reasonable doubt means a

doubt based upon good and sufficient reason and common

sense.

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 Your unanimous recommendation for the imposition

of the death penalty, if supported by the evidence, is

binding on the Court. Similarly, if you are not

unanimous in your recommendation to impose the death

penalty, or you cannot agree unanimously as to your

recommendation, then the Court is bound to impose a

sentence of life imprisonment without benefit of

probation or parole.

In conclusion, a sentence of death shall not be

imposed unless, the jury, find:

1. Beyond a reasonable doubt at least one

statutory aggravating circumstance has been

established; and

2. Unanimously recommend that a sentence of death

be imposed after weighing all relevant evidence in

aggravation and mitigation which bear upon the

particular circumstances and details of the commission

of the offense and the character and propensities of

the offender.

Should you fail to agree unanimously to either of

those two matters, the Court shall sentence the

defendant to life imprisonment without benefit of

probation or parole.

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 As I have previously instructed, you have found a

statutory aggravating circumstance by returning

verdicts of guilty of causing the death of two persons.

You will be given a written interrogatory on which to

indicate if you find any statutory aggravating

circumstances. If you do not unanimously find beyond a

reasonable doubt the existence of any aggravating

circumstance, you should indicate accordingly.

If you find one or more aggravating circumstance,

you should next indicate on th_!

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