concurring specially:
I concur in the result and in all but parts II.A.2., III.C.l., and III.D. of the court’s *1350opinion. In part II.A.2., I would set out why the trial judge’s instruction to the jury on intent violated the rule set out in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) before finding the error harmless for the following reason. A discussion of the claim is essential, it seems to me, to a discussion of the harmlessness of the error. In order to understand whether the error was harmless we must understand what the error was, including the probable impact of the error on the jury. I also would amplify the court’s discussion on why the error was harmless. In . part III.C.l., I would reach petitioner’s challenge to the second statutory aggravating circumstance because, in my view, Zant v. Stephens, — U.S. —, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), does not control this issue adversely to the petitioner. I would find petitioner’s challenge to this aggravating circumstance without merit, however. Finally, in part III.D., while I would arrive at the same conclusion as does the panel’s opinion, I would discuss the claim more fully. I treat these issues in turn here.
A.
The trial court instructed the jury on intent as follows:
A presumption is a conclusion which the law draws from given facts. Each of the following presumptions that I am going to give you is rebuttable; that is, each is subject to being overcome by evidence to the contrary. Every person is presumed to be of sound mind and discretion. The acts of a person of sound mind and discretion are presumed to be the product of the person’s will. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts.
(emphasis added).
To determine whether this instruction relieved the prosecutor of the burden of proving an essential element of either malice murder or rape, we must, as Sandstrom directs, give “careful attention to the words actually spoken to the jury, ... for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” 442 U.S. at 514, 99 S.Ct. at 2454.1 Applying this approach, the intent instruction here would be erroneous in the following manner.
The intent instruction in this case created a mandatory rebuttable presumption. It was mandatory because there was no permissive language, such as “the jury may infer”; the language indicated that the jury must apply the presumption on proof of the basic facts. The instruction was prefaced by language indicating that the presumption was rebuttable; however, the instruction did not advise the jury as to the quantum of evidence the defendant needed to produce to rebut the presumption. The Sandstrom Court, assessing an intent instruction similar to the one before us, considered this deficiency to be fatal, because it effectively shifted the burden of proof on the element of intent to the defendant.
[T]he jury may have interpreted the instruction as a direction to find intent upon proof of the defendant’s voluntary actions (and their “ordinary” consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than “some” evidence — thus effectively shifting the burden of persuasion on the element of intent.
442 U.S. at 517, 99 S.Ct. at 2456 (emphasis in original). The presumption on intent in Collins’ case, like Sandstrom’s, could have been interpreted by a reasonable juror to require the defendant to rebut it by more than “some” evidence. Since, under Georgia law, intent was clearly an element of malice murder at the time of Collins’ trial,2 *1351a presumption that in the mind of a reasonable juror could have placed the burden of persuasion on the defendant to disprove intent was constitutionally impermissible.
Keeping this analysis of petitioner’s claim in mind, I move on to the question of whether the giving of the instruction was harmless beyond a reasonable doubt.3 In Lamb, we found harmless error beyond a reasonable doubt where evidence of guilt was so “overwhelming” that the improper instruction could not have contributed to the jury’s decision to convict. 683 F.2d at 1342-43. Here, I conclude that the improper presumption was harmless beyond a reasonable doubt because it did not relieve the jury of its duty to resolve a contested issue or shift the burden of proof thereon. See Holloway v. McElroy, 632 F.2d 605, 618 (5th Cir.1980), cert. denied 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981).
The improper instruction was that “[t]he acts of a person of sound mind and discretion are presumed to be the product of the person’s will. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts.” To determine whether this instruction was harmless, one must examine the “acts” Collins committed on which the jury might have applied the presumption to find intent.
With regard to the murder, the evidence established that Collins and Durham took the victim off into the pecan orchard. Collins carried the car jack. The victim was struck several times on the head with the jack, according to the crime lab experts; Styles heard three blows. Collins and Durham returned, Durham carrying the jack.
The prosecutor’s factual and legal position throughout the trial was that Collins struck the fatal blow. Collins’ defense was a straightforward denial; he argued that Durham killed Delores Lester. Accordingly, Collins did not dispute that the victim was hit in the head with the car jack and that whoever struck her intended to kill her. He never suggested, much less argued, that the killing was an accident. The only question the parties posed for the jury, therefore, was who struck the victim. . The trial judge’s instruction that the jury should presume that the act (the striking of the blows) showed an intent on the actor’s part to accomplish the natural and probable consequences of that act (the victim’s death) did not relieve the jury of its duty to find the disputed fact (the identity of the actor); nor did it shift to Collins the burden of proving that he was not the person who struck the blows.
In this case, unlike Franklin v. Francis, 720 F.2d 1206 (11th Cir.1983), the assailant’s intent to cause death was not a subject of dispute. In Franklin the defendant was accused of malice murder when the gun he was holding discharged. The central issue was whether he purposely fired the gun at his victim. How much burden the jury placed on Franklin to present evidence that he lacked intent to cause the death was crucial to the jury’s resolution of the intent issue. In this case, in sharp contrast, intent to cause death was not in dispute. I cannot imagine how a jury could conclude that when a man crushes the skull of a helpless female victim by repeatedly smashing her over the head with a car jack he does not intend her death.
I emphasize that we do not deal, here, with a presumption of criminal intent. Rather, we deal only with a presumption that proof of an act (by one who is of sound mind) shows intent to bring about the consequences of the act. I reiterate: in this case there is no dispute that the act took *1352place and that the perpetrator of the act intended the natural and probable consequences thereof — death.
Petitioner could argue, though not convincingly, that he committed other “acts” from which the jury, applying the presumption, could have found that he intended to kill the victim. For example, he carried the jack to the place where the victim was murdered, and he did not ask Durham to spare the victim’s life. His precise argument would be that from these two acts, alone, the jury presumed that he intended to kill the victim. These two acts alone, however, would not have authorized the jury to presume that Collins intended to kill Delores Lester.
We must assume that the jurors listened to, understood, and applied the law as it was read to them; this is the linchpin of Sandstrom analysis. If the jurors applied the presumption, as it was given to them, to the naked act of carrying the jack or failing to plead for the victim’s life, they could not have used it to find that Collins intended to kill Delores Lester. Neither of those acts had as its natural and probable consequence the victim’s death. In a broad sense, these acts may have been part of a chain of causation ending in the victim’s death; yet the jury could not logically or reasonably have found that death was the natural and probable consequence of either of them.
I also conclude that the presumption did not allow the jury to shortcut a finding of rape. To prove rape, the prosecutor was required to establish three elements: the defendant’s penetration of the victim, with force, against her consent. Collins admitted that he penetrated the victim. Intent was not an element of the crime of rape in Georgia when Collins was tried. See Ga. Code Ann. § 26-2001 (1978). The challenged instruction bore only on intent so, in this context, Sandstrom was not implicated. The only elements of the crime of rape remaining for the State to prove were force and lack of consent. If the jury presumed the natural and probable consequences of the penetration, it could not have concluded that the penetration was forceable or against the victim’s will. The challenged presumption was irrelevant in the rape context. Thus, the jury’s evaluation of Collins’ guilt on the rape count, as on the malice murder count, was neither helped nor hindered by this particular presumption.
In summary, when one measures for the harmlessness of error caused by an improperly burden-shifting presumption, one should ask whether “a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 983 n. 5, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting). Harmless error may occur in two ways; the first is, as we noted in Lamb, where the evidence of guilt is so overwhelming that the jury could not have relied on the presumption. The second is, as in this case, where the impermissible presumption applied to the particular facts does not yield any ultimate fact that takes a contested issue from the jury. With respect to the malice murder charge, the only act of which the natural and probable result was death, thus creating a presumption of intent to kill, was the striking of the victim on the head with the car jack. It is uncontested that the striker intended to kill the victim; there was no evidence, or argument by either side, that the striker merely intended to injure the victim or that the killing was an accident. As for the rape charge, intent was not an element of rape in Georgia and even if it were, Collins admitted the first element of the offense, that he intended to, and did, penetrate the victim. The presumption certainly played no role as to the remaining elements of the offense. Accordingly, the presumption instruction was harmless beyond a reasonable doubt.
B.
The statutory aggravating circumstance on which petitioner challenges the trial court’s instructions was the one described in Ga.Code Ann. § 27-2534.1(b)(7) (1978), that the offense of murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an *1353aggravated battery to the victim.” The actual charge tracked the statutory language but did not include the phrase “or an aggravated battery to the victim.” The charge did not define torture or depravity of mind. The jury specifically found this statutory aggravating circumstance.4
In resolving petitioner’s challenge to this jury instruction, I would first ask whether in light of Zant v. Stephens, — U.S. —, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), we even need to reach this challenge. Petitioner only attacks one of the statutory aggravating circumstances submitted to the jury, conceding that the other was validly found. Stephens, arguably, would automatically foreclose petitioner’s claim of error.
In Stephens, the United States Supreme Court faced a situation where the jury had found two statutory aggravating circumstances and sentenced Stephens to death. On its independent review of the sentence, the Georgia Supreme Court had found one of the statutory aggravating circumstances to be invalid but upheld the death sentence. The Supreme Court, relying on the Georgia Supreme Court’s description of the function of statutory aggravating circumstances, found that as long as one statutory aggravating circumstance was found, and the evidence supporting the invalidated statutory aggravating circumstance was properly admitted for any reason, the death sentence could constitutionally stand. The Supreme Court noted, however, that “[o]ur decision in this case depends in part on the existence of an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme Court to avoid arbitrariness and to ensure proportionality.” 103 S.Ct. at 2749. We recently applied Stephens in Burger v. Zant, 718 F.2d 979 (11th Cir.1983). There, too, the Georgia Supreme Court had invalidated all but one of the statutory aggravating circumstances charged; yet it upheld the death sentence on the basis of the remaining statutory aggravating circumstance the prosecution had established.
Here, the Georgia Supreme Court has upheld the death sentence on the basis of both statutory aggravating circumstances, never reaching the question of whether, if one of the circumstances were invalid, it would still have upheld the sentence. Thus, we have been deprived of the kind of knowledge on which the Supreme Court in Stephens in part based its determination. Because of this distinction, Stephens may not control this case. If the (b)(7) circumstance is invalid, the entire sentence may be invalid. Therefore, I believe that we must address the merits of petitioner’s (b)(7) claim.
Petitioner’s attack on the trial court’s (b)(7) instruction raises two questions: first, whether the court should have given a limiting instruction guiding the jury in applying section 27-2534.1(b)(7), and, second, whether the Georgia Supreme Court, in its independent review of petitioner’s sentence,5 erred in concluding that the jury’s finding of “torture or depravity of mind” was supported by the evidence.
Petitioner cites Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), as requiring that a jury instruction on the (b)(7) circumstance include more comprehensive language than that contained in the statute. I disagree. Godfrey considered whether the (b)(7) aggravating circumstance was overbroad as applied in that case.6 A Supreme Court plurality not*1354ed that the prosecutor had frankly admitted to the jury that Godfrey had not tortured his victims, and that he had made no claim that Godfrey had subjected them to aggravated battery. The plurality then reviewed the evidence and concluded that it was insufficient to show a depravity of mind greater than that present in any murder. Without reaching the question of precisely how the jury should be instructed in a (b)(7) case, the plurality reversed the Georgia Supreme Court’s judgment insofar as it left standing the death sentence because the sentence had been based entirely on the (b)(7) statutory aggravating factor. We have read Godfrey as not requiring that a (b)(7) instruction be given in language more comprehensive than that contained in the statute. Stanley v. Zant, 697 F.2d 955, 970-72 (11th Cir.1983). In Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983), we indicated that the constitutionality of a (b)(7) finding depends not on the way a trial judge phrases his instruction on the (b)(7) aggravating circumstance but, instead, as the petitioner next questions, on whether the Georgia Supreme Court, in its independent review of the evidence, could have reasonably concluded that the murder involved torture, depravity of mind or an aggravated battery to the victim. Id. at 1504-05.
In reviewing petitioner’s sentence initially, on direct appeal, the Georgia Supreme Court found that the evidence established the (b)(7) aggravating circumstance. The United States Supreme Court, on certiorari, vacated the judgment of the court as to the death sentence and remanded for consideration in light of Godfrey. On remand, the Georgia Supreme Court once again found that the evidence supported the jury’s finding. Citing Georgia cases, the court found “torture” in the sense of serious physical abuse to the victim because eyewitness testimony, supplemented by the autopsy report, indicated that the victim had been repeatedly raped and repeatedly sodomized prior to death. The court also found that this treatment of the victim demonstrated depravity of mind. The court held that
the present jury was authorized to find, consistently with the United States Supreme Court’s holding in Godfrey that, beyond a reasonable doubt, the murder of the victim was of a type universally condemned by civilized society as “outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind.. . . ” See Mulligan v. State, 245 Ga. 881, 268 S.E.2d 351 (1980).
On Collins’ subsequent petition for certiora-ri, the United States Supreme Court denied the writ.
I could not hold section 27-2534.1(b)(7) unconstitutional as applied in this case. Reviewing the evidence, as did the High Court in Godfrey, I find that the multiple acts of rape and sodomy,7 cited by the Georgia Supreme Court, and the several blows of the jack, of which at least the first did not kill the victim,8 support the finding of torture under the statute. House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974), cert. denied 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217, reh’g denied 429 U.S. 873, 97 S.Ct. 189, 50 L.Ed.2d 154 (1976). Depravity of mind comprehends the kind of mental state that leads a murderer to torture. Blake v. State, 239 Ga. 292, 236 S.E.2d 637, cert. denied 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). Though the Georgia judges who reviewed the evidence in this case disagreed as to which of these acts constituted torture, and the jury found the aggravating circumstance in the disjunctive language of the statute, “torture or depravity of mind,” these tangential issues do not, as petitioner contends, take away from the sufficiency of evidence to support the Georgia Supreme *1355Court’s finding on remand, and thus the constitutionality of the application of the section 27-2534.1(b)(7) aggravating factor in this case.
C.
Petitioner contends that the Georgia Supreme Court’s review of his sentence for proportionality denied him due process and subjected him to cruel and unusual punishment under the eighth and fourteenth amendments.9 Georgia Code Ann. § 27-2537(c)(3) (1978) requires the Georgia Supreme Court to make the following determination in regard to death sentences on direct appeal:
Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
The court, reviewing for proportionality in this case, found that:
“similar cases set forth in the appendix support the affirmance of the death penalty. Roger Collins’ sentence to death for murder is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant ....
Collins v. State, 243 Ga. at 299-300, 253 S.E.2d at 735. The court cited seventeen purportedly similar cases in the appendix to its opinion.
The first question I would address is the proper extent of our review in this case. I note first that there is no constitutional requirement that a state in constructing its capital punishment scheme require a state appellate court to review a death sentence for proportionality. Pulley v. Harris, — U.S. —, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). In Pulley, however, the United States Supreme Court indicated that it approves state capital punishment schemes as constitutional on a state-by-state basis, and that some state schemes might have so little else in the way of checks ensuring rational imposition of the death penalty that proportionality review could be a necessary inclusion in those state schemes. Pulley at —, 104 S.Ct. at 880. Therefore, since state appellate proportionality review is a statutorily mandated check in the Georgia capital punishment scheme approved in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and Gregg’s discussion of the statute emphasizes the benefit of the proportionality review, I could not conclude that if the Georgia Supreme Court altogether failed to carry out its statutory responsibility to conduct proportionality review in a given case, the imposition of the death penalty in that case would be necessarily constitutional.10 Petitioner’s claim, as I read it, is that the Georgia Supreme Court failed in his case to adhere to its statutory responsibilities and conduct a meaningful proportionality review and that such failure was of such a magnitude as to violate the Constitution. I do not reach the question of whether the Georgia Supreme Court would have violated the Constitution in petitioner’s case had it not complied with the mandate of Georgia law, because I find that it conducted a meaningful proportionality review.
Petitioner argues that “minimum standards of due process” required the Georgia Supreme Court to articulate “in some fashion what aspects of a particular case or defendant were examined in determining whether or not the sentence is proportionate.” I disagree. The Georgia Supreme Court cited seventeen similar eases, thus giving us sufficient information to allow us to determine what it considered in finding petitioner’s sentence proportionate. No further articulation of the court’s thought process was necessary to enable us to conduct our review.
Petitioner claims that the court’s proportionality review was unconstitutional because the court did not consider cases “simi*1356lar” enough to his own. I review this claim by examining the record to determine whether the cases the Georgia Supreme Court considered were “similar” enough to petitioner’s to render the statutory command constitutionally applied.11 “Similar” in this context is not a term capable of precise definition. The district court in Blake v. Zant, 513 F.Supp. 772, 814 (S.D.Ga. 1981), appeal argued February 4, 1982, No. 81-7417 (11th Cir.1981) (footnote omitted), noted that:
To a degree perhaps unequaled in any other area of law, capital cases appear to implicate the perspectives and attitudes of the individual reflecting upon them. Thus, even in the basic statement of a case, enormous differences may appear in the way observers characterize relevant facts and circumstances. These differences can surely have much significance for, how and against what other “similar cases” a particular crime and criminal are considered.
Petitioner argues that “similar” in this case should mean “having the same facts or circumstances.” To say that a proportionality review must be so limited would misrepresent the statutory requirement as it was approved for constitutional purposes in Gregg.
In Gregg and more recently in Zant v. Stephens, — U.S. —, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the High Court indicated that the state may single out for death penalty consideration certain aggravated murders, and that the imposition of the death penalty in such cases will not be constitutionally disproportionate to cases not presenting statutory aggravating circumstances. The question, then, is whether the death penalty imposed in this case is disproportionate when one compares it with the pool of cases in which the death penalty was an alternative. This proportionality review, theoretically, might well include an examination both of other cases in which the death penalty was imposed, and of those in which the evidence established a statutory aggravating circumstance but the jury elected not to impose the death penalty. The review might also include those cases presenting a statutory aggravating circumstance in which the prosecutor did not seek the death penalty.
I cannot, however, find arbitrary the decision of a court obligated to perform proportionality review to consider only those cases where the death penalty was actually imposed. A comparison of the case under review with others in which the death penalty has been imposed can readily be made by the Georgia Supreme Court on its own initiative, because it has already reviewed those cases and the sentencing rationales in those cases are a matter of record. This is not true, however, with regard to the other comparable cases — those in which the jury elected not to impose the death penalty and those in which the prosecutor did not seek that penalty. It would be difficult indeed for the Georgia Supreme Court, on its own initiative, to compare the case under review with those cases, since none of them would have been presented to the court for capital sentence review and many may not have been presented to it for any review. Moreover, such cases would add little information to that already considered by the court when it examines cases where the death penalty has been imposed. From the latter group of cases the court can tell whether the sentence it is reviewing is in the same class with others where the death penalty is imposed. While certainly other cases where the death penalty was not imposed would further flesh out the information before the court, they are not so vital to a determination of proportionality that the court must seek them out. If the defendant presents such cases to the court, however, the court might have some obligation to consider them.
*1357Petitioner has pointed us to no ease that the Georgia Supreme Court failed to consider in conducting its proportionality review. Most of the seventeen cases the court cited as similar involved defendants sentenced to death because the jury found at least one of the statutory aggravating circumstances found in Collins’ case, or two other statutory aggravating circumstances. I cannot fault the court for choosing those cases for comparison purposes.12
Petitioner asserts that the court’s proportionality review was restricted to the narrow question of whether anyone had ever been sentenced to death under the (b)(2) or (b)(7) aggravating circumstances. He argues that the court did not consider whether his individual level of culpability was in line with that of the defendant in other cases. He supports his argument by citing the life sentence Durham received for the same crime, albeit in a separate prosecution. There is nothing in the two Georgia Supreme Court opinions that reviewed petitioner’s sentence, or elsewhere in the record, to support this claim.
The Georgia Supreme Court’s review of petitioner’s sentence was comprehensive; the court discussed his proportionality claims as follows:
Collins argues that his death penalty should not be upheld inasmuch as Durham, his co-defendant, was given only a life sentence. We have never followed any simplistic rule that where one of multiple co-defendants is given a life sentence, none of the other co-defendants may be sentenced to death. Neither have we created a per se rule that where the trigger man does not receive the death sentence, it may not be imposed on other participants in the crime. Hall v. State, 241 Ga. 252, 244 S.E.2d 833 (1978).
The evidence does not establish Durham as the prime mover or sole perpetrator of this murder. Collins’ car was used. He was the one who propositioned the victim and offered to take her home. After the victim stated she had a venereal disease to avoid the rape, he told her if he caught the disease from her, he would harm her. He removed the seats from the car that were used in the rape of the victim and raped the victim first. He took the jack *1358from the trunk of the car and followed Durham and the victim into the orchard. He had blood on his feet and admitted that he had hit the victim first and then had given the jack to Durham to complete the killing.13 His finger print was on the jack.
Under, the circumstances we cannot say that Collins was a bystander or an unwilling or passive participant. On the contrary, the evidence clearly establishes that he was an active participant in all aspects of the rape and murder of the victim. Hill v. State, 237 Ga. 794, 229 S.E.2d 737 (1976).
In reviewing the death penalty in this case, we have considered the cases appealed to this court since January 1,1970, in which a death or life sentence was imposed for murder. We find those similar cases set forth in the Appendix support the affirmance of the death penalty. Roger Collins’ sentence to death for murder is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Code Ann. § 27-2537(c)(3).
Collins v. State, 243 Ga. at 299-300, 253 S.E.2d at 735. In sum, I cannot agree with petitioner that the Georgia Supreme Court failed to carry out its statutory mandate to consider similar cases and determine the proportionality of petitioner’s sentence, calling into question the constitutionality of petitioner’s sentence.
. In Sandstrom, the Supreme Court was analyzing the following intent instruction, similar to the one involved here: “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” Id. at 513, 99 S.Ct. at 2453.
. Georgia law defined malice murder in the following way: “A person commits the offense *1351of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another person.” Ga.Code Ann. § 26-1101 (1978).
. In Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), the Supreme Court did not agree whether a violation of Sandstrom could be harmless where the error involved an element of the offense not expressly conceded by the defendant. Four justices decided that such error could not be harmless, and four indicated that where “a defendant’s actions establish intent so conclusively as if it were unequivocally conceded,” error could be found harmless. I follow our decision in Lamb, supra, and the latter Connecticut v. Johnson view in finding harmless error in this case.
. The first statutory aggravating circumstance submitted to the jury, that the murder was committed in the course of a felony, in this instance rape, Ga.Code Ann. § 27-2534.1(b)(2), was also specifically found by the jury. Petitioner does not contest the trial judge’s instructions on that aggravating circumstance.
. The independent review of a death sentence by the Georgia Supreme Court is mandated by Ga.Code Ann. § 27-2537(c)(2) (1978).
. The Supreme Court plurality, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1974), found § 27.2534.1(b)(7) not over-broad on its face with the following explanation: “It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.” 428 U.S. at 201, 96 S.Ct. at 2938 (opinion of Stew*1354art, Powell, and Stevens, JJ.) (footnote omitted).
. Petitioner argues that the evidence did not support a finding that sodomy had occurred because it was not admitted or described by the participants in the crime. The autopsy report indicated semen in the victim’s rectum, however, and such evidence was at least as persuasive as the rape participants’ failure to recount sodomy in their confessions.
. The evidence established that the victim was struck in the armpit once, while she was still standing up, and that she was killed by one of several blows to the head.
. This claim was exhausted in the litigation of the habeas petition petitioner filed in the Superior Court of Butts County, Georgia.
. I thus would not be as quick as the court, supra at 1343, to decide that the Constitution would permit Georgia, having provided a proportionality review, simply to fail to conduct it in a given case.
. It is not this court’s function, here, to conduct de novo review of the proportionality of Collins’ sentence, see Moore v. Balkcom, 716 F.2d 1511, 1518 (11th Cir.1983). We do, however, review whether the Georgia Supreme Court “properly perform[ed] the task assigned to it under the Georgia statutes.” Gregg, 428 U.S. at 224, 96 S.Ct. at 2948 (White, J., joined by Burger, C.J., and Rehnquist, J., concurring).
. The Supreme Court’s recent brief discussion in Maggio v. Williams,-U.S.-at-- -, 104 S.Ct. 311 at 320, 78 L.Ed.2d 43 (1983), of the Constitution's requirements regarding proportionality review supports a determination that the Georgia Supreme Court acted in conformance with the Constitution in this case. The Court, while not directly addressing a definition of "similar" case or a “proportional” sentence, vacated a stay of execution granted by the Fifth Circuit Court of Appeals pending the Supreme Court’s planned discussion of what constitutional proportionality review requires. Williams, convicted of killing a security guard while robbing a grocery store, challenged the Louisiana Supreme Court’s proportionality review of his sentence because the court conducted a district-wide, rather than a state-wide, proportionality review. In denying the stay, the High Court stated:
As Williams notes, Justice WHITE recently granted a stay in a case raising a proportionality challenge to a death sentence imposed in Texas. Autry v. Estelle, 464 U.S. [-, 104 S.Ct. 24, 78 L.Ed.2d 7] (1983). Also, on October 31, the Court declined to vacate that stay. In that case, however, the Texas Court of Criminal Appeals, like the California Supreme Court in Pulley, had wholly failed to compare applicant’s case with other cases to determine whether his death sentence was disproportionate to the punishment imposed on others. Under those circumstances, it was reasonable to conclude that Autry’s execution should be stayed pending the decision in Pulley, or until further order of the Court.
That is not the case here. Our prior actions are ample evidence that we do not believe that the challenge to district-wide, rather than state-wide, proportionality review is an issue warranting a grant of certiorari. Our view remains the same. Nor did Williams convince the lower courts that he might have been prejudiced by the Louisiana Supreme Court’s decision to review only cases from the judicial district in which he was convicted. Indeed, the District Court examined every published opinion of the Louisiana Supreme Court affirming a death sentence and concluded that Williams’ sentence was not disproportionate regardless whether the review was conducted on a district-wide or state-wide basis. We see no reason to disturb that judgment. Finally, Williams has not shown, nor could he, that the penalty imposed was disproportionate to the crimes he was convicted of committing.
(emphasis added).
. Petitioner reargues the evidence, asserting that he was no more guilty, if guilty at all, than his cohorts. This argument sidesteps the jury’s finding that petitioner was guilty of both rape and malice murder and its recommendation of a death sentence. The evidence also supported a finding that petitioner was more culpable than his cohorts.