dissenting:
I respectfully dissent. The decision in this case turns on whether the prosecutorial misconduct and the denial of the petitioner’s right of confrontation had an effect upon the jurors’ deliberations to the extent that the verdict might have been different but for the incident surrounding the interrogation of Dennis Cross. Utilizing the standard promulgated by the Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), a court is required to assess whether there is a reasonable possibility that the interrogation of Dennis Cross might have contributed to the conviction or whether the error complained of can be declared to be harmless beyond a reasonable doubt.
According to the majority, the test used in assessing the prosecutorial misconduct is that adopted by our court in Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985), which requires the petitioner to demonstrate that there is a reasonable probability that the constitutional error changed the outcome of the case. Recently the Supreme Court in Caldwell v. Mississippi, — U.S. ---, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), used a different approach. In reversing a Mississippi conviction, the Court evaluated the impact of the prosecutor’s improper argument at the penalty phase of Caldwell’s trial as follows:
Because we cannot say that this effort [to minimize the jury’s responsibility for determining the appropriateness of the death penalty] had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.
Id., 105 S.Ct. at 2646.1 The language used by the Court in Caldwell is essentially a *1471paraphrase of the harmless error test of Chapman, supra.2
Regardless of which test is applied in this case, the writ of habeas corpus should be granted. There is a reasonable possibility that the outcome of the case could have been different if the state trial court had not permitted the interrogation of Cross. Certainly, it cannot be said that the interrogation of Cross “had no effect on the decision,” and it is impossible to conclude that there is no reasonable possibility that the interrogation of Cross might not have contributed to Ms. Busby’s conviction, under the Chapman test. Before giving reasons for reaching a different conclusion than the majority with respect to the confrontation issue, the issue of prosecutorial misconduct merits brief discussion.
Prosecutorial Misconduct
It is not difficult to determine the prosecutor’s intent in this case. From his discussion, it is clear that he was aware his actions presented a “close question,” in this area of the law. In addition, there was no reason for not calling the witness outside the presence of the jury. The prosecutor persisted in urging that the witness be permitted to assert the privilege in the presence of the jury. His rationale was to prevent speculation by the jury regarding the state’s failure to call an important witness and to prevent the defense from commenting on this failure in his closing argument. His interrogation of Cross permitted the jury to speculate regarding defense counsel’s failure to cross-examine this important witness. The prosecutor’s dilemma could have been solved in two ways. The trial court could have required defense counsel to refrain from arguing the state’s failure to call Cross and Lewis. Secondly, the prosecutor could have called them to the stand in the presence of the jury and asked them simply whether they would exercise their Fifth Amendment rights if questioned about Houston Busby’s murder. Defense counsel had no solution to his dilemma.
There is no question but that the prosecutor intended to prejudice the defendant when he asked Cross “Have you ever been offered money to either murder Houston Busby yourself, or help someone else murder Houston Busby?” In Shockley v. State, 335 So.2d 659 (Ala.Ct.Crim.App.1975), aff'd, 335 So.2d 663 (1976), the court in reversing a conviction commented:
[T]he prosecutor’s persistent confrontation of the witness, Irons, with multiple questions, approximately twenty-five in number, even though the prosecutor was informed in camera, and also after the questioning had begun, that Irons would not testify, supports a reasonable inference that the prosecution preferred to parade these questions before the jury, thereby impressing them with innuendoes and inferences of guilt prejudicial to defendant.
Id. at 662 (emphasis added). This is exactly what occurred in this case. It should be noted that when the Alabama Court of Appeals affirmed this case, it made no reference to its prior decision in Shockley. Nor did the prosecutor here call this case to the attention of the state trial judge.3
The prosecutor, in arguing that he had an absolute right to call the witness before the jury, relied on Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). However, in Namet the prosecutor did not know that the witness would claim the privilege, defense counsel did not object, the witness/co-defendants had already pled guilty, and only four questions were *1472asked in which the refusal to answer was sustained.
The former Fifth Circuit has indicated that in situations such as this, an in chambers hearing is the proper procedure for avoiding prejudicial error. United States v. Ritz, 548 F.2d 510 (5th Cir.1977).4 This is because “[tjhere is nothing about the government’s right to have a witness claim his privilege in response to specific questions while on the stand under oath that requires it to be done in the presence of the jury.” Id. at 521 (emphasis added); see also United States v. Martin, 526 F.2d 485 (10th Cir.1975) (trial court did not err in refusing to permit an informant to be called to the stand and thus be compelled to invoke the privilege in the presence of the jury). Moreover:
[A]n interrogating official himself gravely abuses the privilege against self-incrimination when, believing a truthful answer will incriminate a witness, he nevertheless insists on asking the incriminating question with a view to eliciting a claim of privilege and thereby creating prejudice against the witness or some other party concerned.
United States v. Tucker, 267 F.2d 212, 215 (3d Cir.1959) (emphasis added).
The district court indicated the “record failed to establish flagrant behavior on the prosecutor’s part.” Busby v. Holt, No. 82-0582-H, slip op. at 3 (Jan. 24,1984). He relied upon the Alabama Court of Criminal Appeals statement in Busby, supra, 412 So.2d at 843: “... we do not find, first that the prosecution made ‘a conscious and flagrant attempt to build its case out of inferences’ arising from Dennis Cross’ refusal to testify.” The Alabama court was relying on Namet, supra. I agree with the Alabama court that the prosecutor was not trying to build his case based on the refusal of Cross to testify. At the same time, I am convinced that he was trying to prejudice the defendant’s sole defense.
There is no question but that defense counsel thoroughly raised appropriate objections to the prosecutor’s efforts to interrogate Cross in the presence of the jury. The prosecutor here said in one place “The law on the question concededly is very close” (R. 503), and in another place “The bottom line, Judge, is that it is a close question, but the law is ... I will read it____” The prosecutor relied upon Namet, supra, and Rado v. Connecticut, 607 F.2d 572 (2d Cir.1979), cert. denied, 447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1112 (1980). He failed to cite to the court Shockley v. State, 335 So.2d 659 (Ala.Ct.Crim.App.1975), where his own state appellate court held: “The trial court committed error in permitting such interrogation, although no answers were made, if for no other reason than that the defendant under such tactics was denied confrontation, a right of cross-examination, assured under the Sixth Amendment to the United States Constitution.” Id. at 662.
The prosecutor argued to the trial court that his reason for wanting to call Cross, notwithstanding the fact that Cross would refuse to answer the questions, was to inform the jury that the state had done all within its power to present testimony to the jury which was relevant to the crime. Faced with a similar problem, Judge Learned Hand in United States v. Maloney, 262 F.2d 535 (2nd Cir.1959), said the following: *1473Id. at 537. I conclude that the actions of the state attorney amounted to prosecutorial misconduct which deprived the prisoner of her constitutional due process rights as well as her Sixth Amendment right to confrontation of witnesses presented to testify against her.
*1472“We must confess that the situation is one in which either alternative results in prejudice to one side or the other; and it is impossible, so far as we can see, to lay down any general rule that will cover all instances. In the case at bar the prosecution knew that Parkhurst and Mascali would refuse to answer, and it seems to us that the interest of the accused should prevail over that of the prosecution, and that the judgment should not stand, for the questions touched vital elements of the charge.”
*1473 The Confrontation Issue
In assessing harmless error a court reviews the evidence pointing to the guilt of the convicted defendant, excluding from consideration the evidence or factors that were erroneously injected in the case. If a court concludes that the jury’s verdict would have been the same, and under Chapman the constitutional error could not have possibly contributed to the conviction because of the weight of the evidence pointing to guilt, a writ of habeas corpus will be denied. ■ In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), the Supreme Court discussed application of the Chapman constitutional harmless error test as follows:
We do not depart from Chapman; nor do we dilute it by inference. We reaffirm it. We do not suggest that, if evidence bearing on all the ingredients of the crime is tendered, the use of cumulative evidence, though tainted, is harmless error. Our decision is based on the evidence in this record. The case against Harrington was not woven from circumstantial evidence. It is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this state conviction undisturbed.
Id. 395 U.S. at 254, 89 S.Ct. at 1728-29.
In my opinion the evidence of Mrs. Busby’s guilt was not overwhelming. There was no testimony that Marie Busby and her husband Houston Busby had had any argument or problems on the day of the murder or in the period immediately preceding the murder. There was evidence that Houston Busby had physically mistreated his wife on a number of occasions and that Mrs. Busby had discussed her willingness to pay $10,000 to have her husband killed and that about six weeks prior to her husband’s death she had allegedly talked with a man about “taking care of her husband.”
There is no direct or indirect evidence that Mrs. Busby participated in the murder of her husband. She was in the house on the night of the murder and after the murder helped to clean up the house. Her uncontradicted testimony was that she was taking a shower and heard a gun fire.
On the other hand, the evidence showed that there were conversations during the late afternoon before Busby’s murder during the night that Terry Lewis and Dennis Cross planned to kill Busby. Tonya Busby testified that Lewis and Cross had had a conversation after which he told Tonya: “It is going to happen tonight.” (Majority Op., at 1462). Donna Busby also testified that she had a conversation with Dennis Cross during which she learned of the plan to kill Houston Busby that night. Kenneth Ladner testified that Terry Lewis borrowed his gun the evening of the murder and that he had an idea that Lewis was going to kill Houston Busby. The evidence is clear that Terry Lewis and Dennis Cross had reason to kill Houston Busby.
Mrs. Busby’s defense was based on Cross’ and Lewis’ anger towards Busby growing out of the incidents during the afternoon before the killing. Additionally, she defended on the basis that the killing was not in any way related to any offer by her to have her husband killed. It is clear that the state was prosecuting Mrs. Busby on the theory that her role in the killing was that of a hirer of the killers. As pointed out in note 7 in the Majority Opinion the prosecutor in opening statements stated: “The theory of the prosecution is that an offer was made to Cross, to Lewis, pursuant to that offer, that these two kids ... then went and killed Houston Busby.” Supplemental Transcript at 69-70. It was critical to the prosecutor’s case that the jury be convinced that Marie Busby offered Lewis and Cross money to kill Houston Busby and that she was the instigator of the crime. The prosecutor called *1474Dennis Cross to the stand for the expedient of linking Cross to Mrs. Busby and an offer by her to kill Houston Busby. The critical question (Majority Op., at 1465) was: “Have you ever been offered money to either murder Houston Busby yourself, or help someone else murder Houston Busby?” to which Dennis Cross refused to answer.
The prosecutor argued to the court that the jurors would not understand the legal ramifications if he failed to call Dennis Cross and Terry Lewis to the stand. He urged that the jurors had a right to know that the state had the good sense to at least call them as witnesses. The unfortunate aspect is that the jury did not understand the failure of Mrs. Busby’s defense attorney’s to cross-examine Dennis Cross as he had other witnesses.5 The jury had no way of knowing that defense counsel could not elicit such exculpatory testimony from Cross as counsel had previously brought out on cross-examination of Ladner and Lynn Busby.
Although it may be that Marie Busby employed Cross or Lewis to kill her husband and/or participated in the murder, I cannot conclude that there was no reasonable possibility that the interrogation of Cross did not contribute to her conviction. This case is similar to United States v. Ritz, 548 F.2d 510 (5th Cir.1977). In that case Robert Ritz, Sr., the parent of some of the defendants and the husband of one of them, was an unindicted co-conspirator who invoked the Fifth Amendment when being interrogated about the facts of the case. In Ritz there had already been considerable testimony on the subjects about which Robert Ritz, Sr. was questioned. The Fifth Circuit had the following to say:
We have no doubt that this whole contretemps was in fact prejudicial to the defendants. It would be difficult to see how the average juror could fail to assume that the Government would not put on the witness stand to testify against his wife and children any witness who did not have some pretty strong evidence to help the Government’s case. Assuming as the jury should, that counsel, in seeking the father’s testimony was acting in good faith with the idea that what he would say would be relevant and material in proving the guilty knowledge of the defendants, how could the jury feel otherwise than that if Robert Ritz, Sr. had answered his testimony might not only have placed him in jeopardy but would also have helped convict the four defendants.
Recognizing as we must, that the questions asked of Mr. Ritz were “superfluous” because there was other evidence available to the effect that the father did operate a body shop at his house and that he did give the $50 note to Robert Jr., we are at a loss to see any purpose for having this drama played out before the jury other than that of having the jury draw inferences from Robert Ritz, Sr.’s refusal to answer the questions. Such inferences are, of course, not permitted but they exist, as recognized by such cases as United States v. Maloney, 262 F.2d 535 (2d Cir.1959).
548 F.2d at 518-19.
The majority agrees that the critical question propounded to Dennis Cross was whether or not Marie Busby had offered him $10,000 to kill Houston Busby. The majority reasons that since the jury did not convict Marie Busby of capital murder for hire, the error is harmless. Marie Busby was charged with capital murder pursuant to a contract for hire under § 13-11-2(7), Code of Alabama 1975. The indictment alleged that she had agreed to pay one Terry Lewis and one Dennis Cross approximately $10,000 to shoot her husband, Hous*1475ton Busby. At closing arguments to the jury, the prosecutor argued: “It was a murder induced by the offer of money.” The prosecutor further argued: “And based on the evidence, we ask that you find the defendant guilty as charged in the indictment, which is to say of capital murder. Because she was the motivating force, based on the evidence behind a cold blooded assassination.” Supplemental Transcript at 94. The defense of Marie Busby was that the state had not proven that there was an agreement between Marie Busby and Dennis Cross and Terry Lewis to kill Houston Busby for $10,000. Id. at 100.
Under Alabama law the jury had to be instructed that it could return a lesser offense than that charged in the indictment, including offenses of murder and manslaughter. The jury’s verdict of murder instead of capital murder does not mean the jury did not convict on the killing for hire theory. There was no other theory. Marie Busby’s guilt turned on whether the night Houston Busby was killed the murder was committed by Dennis Cross and Terry Lewis as a consequence of Marie Busby’s offer of $10,000. The misconduct of the prosecutor in calling Dennis Cross to the stand and the error of the trial judge in permitting the cross-examination of Dennis Cross permitted the jury to infer that Marie Busby had indeed offered $10,000 to Dennis Cross to commit the crime. Defense counsel was denied the right to cross-examine Cross to dispel any such inferences. I would grant the writ so that Marie Busby could have a fair trial without the taint of such a prejudicial proceeding which leaves unknown what contributory effect it had upon the decision of the jury.
. Admittedly, Caldwell was an Eighth Amendment decision. The Eighth Amendment is not applicable in this case. Nevertheless, the language used by the Court points, implicitly, to maintaining the use of the harmless error test and not the Strickland v. Washington, 466 U.S. *1471668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard in evaluating Sixth Amendment claims of ineffective assistance of defendant’s counsel.
. For a more detailed explanation of the difference in the two tests, see Brooks v. Kemp, 762 F.2d 1383, 1431 (11th Cir.1985) (Clark, dissenting).
. As mentioned in the majority opinion, the defense was given no advance notice by the prosecutor of his intended tactic, and there was no overnight recess during which defense counsel could research the issue.
. Under Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc) all decisions of the former Fifth Circuit handed down before October 1, 1981 will be followed by the Eleventh Circuit.
. The jurors had every right to expect defense counsel to cross-examine Cross about whether Mrs. Busby had participated in the murder, whether Cross and Lewis committed the crime for hire or whether they did it because of Busby’s mistreatment of Tonya to whom Cross was engaged. Instead of hearing cross-examination, they heard defense counsel object and move for a mistrial.