concurring in part and dissenting in part.
In Case Number S99A0431, I agree with the majority as to the applicable standard of review, but not with its conclusion that there was evidence to support the habeas corpus court’s finding of actual prejudice arising from the improper communication between the bailiff and the jury. Accordingly, I dissent to the judgment of affirmance in the direct appeal. In the cross-appeal, Case Number S99X0449, I concur in and write separately with regard to the remand of certain issues to the habeas court.
Case Number S99A0431
As the majority recognizes, Todd had the burden of proving that the improper communication by the bailiff actually prejudiced the sentencing phase of the trial. Contrary to the implication of the majority, however, the Warden had no burden to show that the bailiff’s misconduct was harmless. Turpin v. Todd, 268 Ga. 820, 830 (2) *395(b) (493 SE2d 900) (1997). The presumption of prejudice from such misconduct which normally arises on direct appeal does not apply in this habeas case. Turpin v. Todd, supra.
In finding actual prejudice, the habeas court relied on a presumption that the trial court would have acted appropriately had it received the jury’s question. The majority apparently agrees with the habeas court’s conclusion that the trial court’s “appropriate” response to the jury’s inquiry would have been an instruction that the possibility of parole was not a proper matter for its consideration. Quick v. State, 256 Ga. 780, 787 (9) (353 SE2d 497) (1987) (where the instructions “implicitly encouraged such consideration, and in a manner that emphasized the jury’s inability to limit or eliminate the possibility of parole”). However, even if the Court is now holding that such an explicit instruction excluding consideration of the issue of parole is the only acceptable response to a jury’s question regarding the topic, it most assuredly was not the only proper reply to the jury’s question at the time of trial in 1989. Although a 1991 opinion of this Court refers to the instruction suggested in Quick v. State, supra, as the “better practice,” we unanimously held, both in the 1991 case and in other post -Quick decisions, that it is not reversible error to decline to answer jury questions about the possibility of parole or to inform the jury that it is bound by the charge already given. Potts v. State, 261 Ga. 716, 725 (24) (410 SE2d 89) (1991); Cohen v. State, 257 Ga. 544, 546 (3) (361 SE2d 373) (1987); Childs v. State, 257 Ga. 243, 256 (20) (357 SE2d 48) (1987).
It is undisputed that the trial judge would have given this acceptable response to the inquiry regarding the possibility of parole during Todd’s criminal trial, if she had been informed of the jury’s question. She testified by affidavit that she would have informed the jurors that she could not answer the question, but that they were to rely on the previously charged instructions. Such a response is virtually identical to the one which the bailiff actually gave and which the jury believed came from the trial judge. In opposition, Todd has produced no evidence to rebut this showing by the Warden that, in the absence of the bailiff’s misconduct, the trial court would have given precisely the same response to the jury’s question. In these circumstances, the bailiff’s reply to the jury could not possibly meet the test of actual prejudice by working to Todd’s “ ‘actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ” Turpin v. Todd, supra at 828 (2) (b). To the contrary, the undisputed evidence demands a finding that Todd suffered no prejudice whatever from the fact that the bailiff, rather than the trial court, responded to the jury’s question. In my opinion, therefore, Todd has failed to meet the burden, imposed by the law of the case, of proving that actual prejudice resulted from the bailiff’s improper *396communication. Accordingly, I believe that the habeas court erred by applying an unauthorized and jncorrect legal analysis of the required response to the topic of the jury’s parole question and by disregarding the only relevant evidence showing how the trial court would have answered that question. Therefore, I respectfully dissent to the majority’s affirmance of the habeas court’s order vacating the death sentence.
Case Number S99X0449
In my opinion, the habeas court’s application of erroneous standards and analyses carried over to issues addressed in the cross-appeal. Brooks v. State, 259 Ga. 562, 563 (2) (385 SE2d 81) (1989) established the right of a defendant to an ex parte hearing before the trial court on a request for funds for psychiatric assistance. This Court decided Brooks after Todd’s conviction, but well before his appeal. Nevertheless, appellate counsel failed to raise the Brooks issue on Todd’s appeal. See Todd v. State, 261 Ga. 766 (410 SE2d 725) (1991) . In the original habeas proceeding, the habeas court held that Todd could assert his Brooks claim retroactively, relying upon the “pipeline” rule of Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992) . On appeal, we held that this was error, because Taylor and the “pipeline” rule are irrelevant to Todd’s entitlement to raise the Brooks issue in his habeas proceeding. Turpin v. Todd, supra at 830 (3). Where, as here, a defendant could have, but did not, raise an issue in a prior appeal, the proper standard for determining whether there has been a procedural default barring subsequent habeas consideration is the existence of “cause” for that failure and “actual prejudice” suffered by the defendant. Turpin v. Todd, supra at 824 (2) (a). Ineffective assistance of counsel constitutes a sufficient “cause” for the failure to raise an issue on appeal. Turpin v. Todd, supra at 826 (2) (a). Accordingly, we reversed and remanded for the habeas court to apply this correct standard to Todd’s Brooks claim. Turpin v. Todd, supra at 831 (3). On remand, however, the habeas court concluded that there was not a sufficient showing of “cause” for failing to assert the Brooks claim, since Taylor was not decided until after Todd’s appeal. According to the habeas court, “appellate counsel cannot be held ineffective for failure to raise the Brooks issue when the case allowing retroactive application of new procedural rules was yet to be decided.” Obviously, this is erroneous, since, as we previously held, Taylor has nothing whatever to do with the issue. The crux of the relevant inquiry is Todd’s appellate lawyer’s failure to raise the Brooks issue on appeal, and because Brooks was decided before the appeal, counsel could have raised it therein. If Todd’s trial lawyer preserved the Brooks issue, then appellate counsel may or may not *397have been ineffective in failing to raise it on appeal. See generally Roulain v. Martin, 266 Ga. 353 (1) (466 SE2d 837) (1996). However, the appellate lawyer clearly would not be ineffective by failing to raise that or any other issue for the first time on appeal. Roulain v. Martin, supra. Accordingly, resolution of the “cause” prong of Todd’s Brooks claim depends upon a determination of whether defense counsel properly raised the issue in the trial court and, if so, whether the failure of Todd’s appellate attorney to raise it on appeal was ineffective under the standard adopted in Battles v. Chapman, 269 Ga. 702, 704 (1) (a) (506 SE2d 838) (1998). Therefore, I believe that the majority correctly vacates the judgment and remands the case for reconsideration of this issue.
Because this Court resolved the issue of the effectiveness of trial counsel on direct appeal, Todd was precluded from relitigating that issue on habeas. Turpin v. Todd, supra at 831 (4). However, one of Todd’s other habeas claims was the ineffectiveness of his appellate lawyer for failing to raise on appeal certain additional alleged instances of the ineffectiveness of his trial attorney. In Turpin v. Todd, supra at 831 (5), we remanded for the habeas court to review this claim. On remand, the habeas court initially held that it could not review the claim because it was “merely a circuitous method of relitigating the claim of ineffective trial counsel which was previously ruled on” in Todd’s appeal. Clearly, the habeas court erred, since the determinative issue is not the already litigated question of the effectiveness of trial counsel, but the previously unlitigated issue of whether the appellate attorney’s handling of the issue of the ineffectiveness of Todd’s trial lawyer was itself constitutionally deficient under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The habeas court farther concluded that, if the issue of the effectiveness of appellate counsel was not barred because it was previously determined, then it was barred because it was not raised in the context of Todd’s appeal. This too is error, because we expressly held in Turpin v. Todd, supra at 832 (5) (a) that the issue cannot be procedurally defaulted, because “Todd was represented at all times during the direct review process by the same attorney, and that attorney cannot raise a claim of ineffectiveness against himself.” Accordingly, I believe that the habeas court must address the issue of the ineffectiveness of appellate counsel on the merits and that, as the majority correctly holds, Battles v. Chapman, supra, established the proper standard for making that determination. Therefore, I concur in the vacation and remand with direction that the habeas court apply this standard in its consideration of the merits of Todd’s claim of ineffective assistance of appellate counsel.
I also concur in the majority’s determination to vacate and remand for application of the Battles standard to Todd’s claim that *398the appellate attorney was ineffective by failing to raise the Batson issue on appeal. Since the habeas court correctly determined that Todd’s remaining claims are without merit, I concur completely in the majority’s affirmance thereof.
Decided July 14, 1999 Reconsideration denied July 30, 1999. J. Gray Conger, District Attorney, Chattahoochee Circuit, Thurhert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige Reese Whitaker, Assistant Attorney General, for appellant. Jeffrey Ertel, Stephen C. Bayliss, Thomas H. Dunn, for appellee.I am authorized to state that Justice Hunstein and Justice Thompson join in this opinion.