September 20, 1989

JANICE BUTTRUM, Petitioner,
v.
GARY BLACK, Warden, Middle Georgia Correctional Institute, Women's Division, Respondent

The opinion of the court was delivered by: MURPHY

ORDER

On August 29, 1981, a Whitfield County jury found Janice Buttrum guilty of the murder of Demetra Faye Parker, in violation of O.C.G.A. ? 16-15-1, and of motor vehicle theft, in violation of O.C.G.A. ? 16-8-18. Two days later, the jury sentenced her to death. Her conviction and sentence were affirmed on appeal by the Georgia Supreme Court. Buttrum v. State, 249 Ga. 652, 293 S.E.2d 334 (1982). Subsequently, she filed a state petition for habeas corpus; a hearing was held on the petition; and all relief was denied. When the Georgia Supreme Court denied a certificate of probable cause to appeal the denial of state habeas relief, Buttrum filed this petition in federal court."

B. Factual Background

The evidence and testimony presented at Janice Buttrum's trial and pretrial proceedings revealed the following facts.

Nineteen year old Demetra Faye Parker was raped, sodomized and stabbed ninety-seven times in her motel room at the Country Boy Inn, in Whitfield County, during the early morning hours of September 3, 1980. Demetra had moved to Whitfield County from Tennessee to be near her boy friend.

Janice Buttrum and her husband, Danny, also lived at the Country Boy Inn and were acquaintances of Demetra Parker. Demetra occasionally drove them to the store and laundromat since the Buttrums had no car. Danny was twenty-eight and Janice, seventeen. The two married when Janice was fifteen, and their nineteen-month-old daughter lived with them at the motel. Danny Buttrum had recently escaped from a Cobb County, Georgia, prison work camp. On the night of the murder he had drank three six packs of beer. Danny had a violent background, and in the Buttrum's two-year marriage, he beat Janice numerous times.

The Night of the Murder

The night before the pre-dawn murder, Demetra Parker was in her motel room watching television with two male friends. The three saw Danny pacing back and forth 15 to 20 times in front of Demetra's room. Demetra told her friends she was afraid of him, and they locked the door. She drove her friends home at approximately 8:30 p.m.

Christopher Busby also lived at the motel in August and September, and on the evening of September 2, he and Danny had a beer together. At 7:00 to 7:30 p.m., Busby, the Buttrums, and their baby left the motel to buy beer. This brief beer run turned into a five hour excursion that included a number of stops. Busby testified at trial that while they were riding in his car, Danny told him he wanted to pick up a girl. Busby asked him if his wife, who was in the back seat, wouldn't mind, and Danny replied, "No, as long as she gets to go with her first."

During several stops, Danny made passes at four different women, while Janice remained in the back seat of Busby's car. Several female witnesses testified they were approached by Danny that night but refused his drunken advances. Busby and the Buttrums returned to the motel room at about midnight. Danny then borrowed Busby's car, and the Buttrums were gone for about three more hours, returning at 3:45 a.m., September 3. Pam Henry, a motel resident, testified that at approximately 4:00 a.m. she heard a girl screaming.

Janice Buttrum's Accounts of the Murder

Agent Johnson of the Georgia Bureau of Investigation testified about the investigation of the case and the arrests of the Buttrums. Over defense objection he related one of Janice's post-arrest confessions. According to Johnson, Janice Buttrum stated that at about 4:00 a.m., she and her husband went to Demetra's room to scare her. She knocked on the door, and when Demetra opened the door and then attempted to close it, Danny pushed it open, and they went inside and struggled with the girl. Janice then stabbed the girl and they fell to the floor. Janice and Danny were on opposite sides of the girl, and they took turns stabbing her. Janice said she stabbed her about fifteen minutes [sic], gave the knife back to Danny; he stabbed her, and gave the knife back to her. Janice lifted Demetra's nightgown to see where her heart was, and then cut Demetra across the stomach because "it was the only place left to cut," and because Demetra was still living and she thought that might kill her. The Buttrum's daughter was in the room playing with the telephone. Janice said she had no remorse about the killing. The Buttrums went back to their motel room, took Demetra's car and fled.

Chambracant Patel, manager of the motel, reported Ms. Parker's death and told the police that her car was missing. He told them that Ms. Parker had spent time the previous day with the Buttrums, and that the Buttrums appeared to have checked-out of their room. A search of the Buttrum's room revealed a bar of soap and washcloth covered with blood. Armed with this information, the police secured arrest warrants for Danny and Janice Buttrum.

Evidence from former teachers, social workers, and others revealed the following. Janice Buttrum's unmarried mother gave her to a middle-aged, foster couple, the Adcocks, in exchange for payment of the hospital bill. She grew up in a three-room, unpainted house with no bathroom. Later the Adcocks lived in a one-bedroom trailer, and Janice's bedroom was a broken-down van in the yard. The trailer was filthy, the floor covered with dirt, paper, beer bottles, and moldy food. Janice's clothing was obtained at the city dump, and she was subjected to physical and emotional abuse. One social worker testified that during the many times he went to her home he never saw her step-mother sober. After Mr. Adcock died Ms. Adcock's boyfriend lived in the trailer.

Janice Buttrum contends that prejudicial and inflammatory pretrial publicity so pervaded and saturated Whitfield County at the time of her trial that it was impossible to empanel an impartial jury. She contends the trial court violated her constitutional rights when it denied her pre-trial motion for a change of venue. The principles that govern this change of venue issue derive from the fourteenth amendment's due process clause, "which safeguards a defendant's Sixth Amendment right to be tried by 'a panel of impartial, "indifferent jurors."'" See Coleman v. Kemp, 778 F.2d 1487, 1489 (11th Cir. 1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 730, 106 S. Ct. 2289 (1986), quoting Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961); see also Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417 (1963). Where pretrial publicity has so inflamed and saturated a community that it is impossible to draw an impartial jury from that community, due process requires that the trial court grant a motion of the defendant for a change of venue for trial or a continuance of the trial. See Coleman, 778 F.2d at 1489; citing Rideau, 373 U.S. at 726; Murphy v. Florida, 421 U.S. 794, 799, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1975). A defendant tried and convicted by a jury prejudiced against him, is denied a fundamentally fair trial. At a minimum, due process requires a unbiased decision maker.

There are at least two different standards for judging the effects of prejudicial pretrial publicity. One standard is that used in cases such as Irvin and Jordan v. Lippman, 763 F.2d 1265 (11th Cir. 1985). There, prejudice is shown when the pretrial publicity has created a significant possibility of prejudice and the trial court has failed to conduct an adequate voir dire to unearth and eliminate the prejudice from the jury. See Jordan, 763 F.2d at 1274-79.

Prejudice may be presumed, however, where a petitioner proffers evidence of inflammatory, prejudicial pretrial publicity that has so pervaded or saturated the community, that jury prejudice may presumed. In such a case, there is no further duty on the petitioner to establish bias. See Coleman, 778 F.2d at 1490, quoting Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980), cert. denied, 451 U.S. 913, 68 L. Ed. 2d 303, 101 S. Ct. 1986 (1981). Cases of presumed prejudice are rare. See Coleman, 778 F.2d at 1490 (and cases cited therein).

In Rideau, the defendant's confession to a bank robbery, kidnapping, and murder was videotaped and subsequently broadcast three times by a local television station. The three broadcasts were seen respectively by 24,000, 53,000, and 29,000 in a community that had a population of 150,000. See id., 373 U.S. at 724. The Supreme Court held that the denial of the defendant's motion for change of venue constituted a denial of due process. Although the Court noted that three of the venire persons had seen the broadcast, the Court stated that prejudice was to be presumed, "without pausing to examine a particularized transcript of the voir dire examination of the members of the jury." Id., 373 U.S. 727.

In Coleman, four defendants were charged with a brutal execution-like murder of six members of a family. Seminole County, the venue of trial was a community of approximately 7,000. The extensive, prejudicial, and inflammatory pretrial publicity in the case was reviewed by the court in 45 pages of the Federal Reporter. See id. at 1491-1536. The publicity tracked the defendants from their arrest through trial, including the reporting of the detailed testimony of one of the defendants who had turned state's evidence. The publicity was reflective of a community roused with hostility and largely convinced that death was the only appropriate remedy. Id. at 1538-40. The court found the pretrial publicity equal to Rideau, presumed the existence of prejudice, and held that the grant of habeas relief was warranted. The court there in dicta noted that it assumed that in an appropriate case the presumption of prejudice might be rebutted by the respondent, through a showing that the voir dire was adequate to eliminate any actual prejudice from the jury. The court, however, found no occasion to resolve that issue because the voir dire in that case was inadequate and did not rebut the presumption of prejudice.

In this case, the pretrial publicity so pervaded and saturated Whitfield County that prejudice must be presumed under Coleman and Rideau. Nevertheless, the Court finds the presumption of prejudice rebutted by an examination of the voir dire. The voir dire shows that the jury actually empaneled was not so infected by the publicity that the jurors could not lay aside any preconceived opinions about the case and render a verdict solely upon the evidence. Habeas corpus relief on this issue therefore must be denied.

1. The Pretrial Publicity.

Following the approach of the Eleventh Circuit in Coleman, this Court shall review the pretrial publicity in some detail. Several demographic facts were brought out in the pre-trial proceedings which are relevant to the inquiry. The trial court found at a pre-trial hearing on the issuance of a "gag order" that the population of Whitfield County at the time of the trial was between 60,000 and 70,000. This population is roughly a median between the population of Seminole County, at issue in Coleman, and of Calcasieu Parish, at issue in Rideau. Further, at a pre-trial hearing on Buttrum's motion for change of venue, Dr. Lawrence E. Noble, a professor of political science and expert in media analysis summarized the media coverage in Whitfield County:

The Dalton daily newspaper, the Daily Citizen-News, began the publicity with a front page story on September 4, "Girl, 19 Murdered; 2 Suspects Jailed." It reported,

After viewing the repeatedly stabbed nude body of a 19-year-old woman at Country Boy Motor Inn, Sheriff Jack Davis said Wednesday it was the most brutal murder he had investigated in Whitfield County.

The story reported that the coroner, as well, could not recall a more brutal murder. A report of the Chattanooga Times the same day dubbed the crime a "sex-torture-slaying case." "Police said the woman had apparently been tortured before her death. Officers also found a four-inch to five inch slash across her stomach. The stab wounds, according to [detective] Gribble, covered the stomach, chest, breast and neck of the victim." It reported that the room was in disarray with blood over large areas of the walls and floor.

On September 4, radio station WBLJ reported that Ms. Parker's "nude and butchered body" had been discovered in a pool of blood, and that Ms. Parker had been stabbed 95-100 times and was sexually tortured. Also on that day, radio and television stations reported that "an escapee from the Cobb County Georgia work camp and his wife" had been arrested in the "multiple stabbing." They reported that Sheriff Davis had stated that the Buttrums and the victim were acquaintances, that the couple was driving the victim's car when arrested, and that the motive was believed to have been "sex-related." WBLJ radio reported that Janice Buttrum had helped Danny escape from state custody.

The Daily Citizen-News reported on September 5 that "toys and clothing belonging to a child were among the hastily abandoned items left in an apartment reportedly occupied by the Buttrums, just a few doors down from where the murder occurred." The Chattanooga News-Free Press and the Chattanooga Times reiterated the same details of the crime.

Because of the amount of pretrial publicity, the defense sought a continuance of the presentment before the Grand Jury to provide for a "cooling off period" on the grounds that no impartial panel could be seated. The Daily Citizen-News published an article about the motion brought by the "defense lawyers who succeeded in obtaining a gag order preventing lawmen from talking about the murder."

She is a big one. Even with the baggy institutional overalls rolls of fat bulge. Her brown hair is unkept. Scraggly even. Her face is plain. Colorless. Her bottom lip is somewhat larger than the other. Her eyes are small, close together. Emotionless, until she laughs at her own joke.

. . . .

It continued:

Seemingly, they are both oblivious of the court proceeding. Never asking question of their attorneys. . . . A whirlwind storms around them and they display outward calmness.

Is it they do not understand that the State is trying to take their lives? Or do they care? could it be their lives have been so miserable they secretly wish for death?

Or are they just stupid?

. . . .

Is that the fear in his eyes? The fear not of death or dying, but the fear that he will not die.

The fear that the Book is right. You can cry out for death and it will not come. The fear of Eternal Damnation.

The fear of the Abyss.

On October 16, the court held a hearing on whether to lift the gag order. The court indicated it believed that there was little about the case not already known and that the gag order motions had "done more to create publicity that they have not." Respondent's Exhibit 13 at 33. The next day the Daily Citizen-News and the Chattanooga Times reported on the hearing and reviewed the details of the crime.

The Court lifted the gag order on October 17 and released for public inspection most of the preliminary hearing transcript, with the defendant's post-arrest statements omitted. The Daily Citizen-News, the Chattanooga Times, and the electronic media all announced the judge's decision. A few days later, the Daily Citizen-News recounted on October 21 some of the evidence:

Screams of the dying 19-year-old Demetra Parker were heard by guests at the Country Boy Motel where her beaten and repeatedly stabbed body was discovered . . . .

Questioning of motel guests secured witnesses who indicated Miss Parker screamed during a savage knife attack which left over 90 wounds, testimony in a preliminary hearing revealed.

The FBI took a statement from the Buttrums . . . after their arrest . . . . Copies of the statements have never been made public and defense lawyers say they will continue to resist efforts to open hearings to the news media before a trial date is set.

The Chattanooga Times October 21 story about the preliminary hearing revealed several additional facts. It noted that the post-arrest statements of the Buttrums were deleted from the transcript "apparently in anticipation of defense motions to keep information on confessions by the couple from the jury." It also revealed the following:

[Detective] Gribble said he interviewed Leon Busby, who had gone for a ride with the couple the day before the slaying. When Buttrum was questioned about his wife's reaction to statements that he was looking for a woman with whom to spend that evening, the man reportedly made a statement indicating that his wife was bisexual, according to the testimony.

Radio station WBLJ aired a lengthy newscast on October 21 summarizing the evidence at the preliminary hearing, including that the Buttrums made statements to the authorities during their first days in custody, that the day before the murder they had been seen trying to pick up two to three girls, that Busby had been told by Danny Buttrum that his wife would not mind because she was bisexual, and that the Buttrums became suspects because a search of their room suggested that they had checked out while having paid rent for 3 or 4 more days.

From November through January 1981, the Buttrums were in Milledgeville, Georgia, undergoing psychiatric evaluation. The media continued to report on the case. At least six stories, by the Daily Citizen-News, the Chattanooga Times, the Chattanooga News-Free Press, and the Valley Observer printed articles on the coming competency hearing and repeated the details of the crime. The Valley Observer published a long article entitled "Portrait of the Accused: Crime Was 3 Months Ago, But Suffering Still Lingers."

testifying that she once went to bed with two 27-year-old men when but 14 years of age because of being starved for affection.

The Chattanooga Times and the Chattanooga News-Free Press reported on the result of the hearing on February 7, the Chattanooga Times reminding the readers that "the Buttrums . . . are accused of stabbing Miss Parker 95-100 times, that shortly before the murder Danny Buttrum had escaped from jail, and that the two were staying at the motel where Miss Parker's body was discovered at the time of the murder.

On February 11, the Chattanooga Times summarized the evidence at Danny Buttrum's competency trial:

Three years before he was charged with the brutal sexual-torture-murder of a 19-year-old West Tennessee woman, Danny Buttrum checked into a regional psychiatric facility in Rome, Ga., and told officials he was preoccupied with sex and was afraid he would rape someone, according to testimony at Buttrum's competency hearing Tuesday.

Evelyn Buttrum, the defendant's mother, testified Tuesday that her son was an alcohol abuser and suffered from "spells" during which he became violent and destructive.

She acknowledged to District Attorney Steve Williams that Buttrum had even attacked her with a butcher knife and scissors.

Jessie Collette, a former counselor at the regional mental health center, interviewed Buttrum when he was voluntarily checked into the hospital and said the defendant told him he had a preoccupation with sex and an urge to rape. Buttrum also reported homicidal feelings toward his mother.

The Daily Citizen-News published a similar story. WTVC Channel 9 reported that the jury took less than one hour to find Buttrum competent and reminded the viewers that the victim had been "raped . . . and then stabbed almost a hundred times." WBLJ radio also reported the verdict and reported on the evidence suggesting that Buttrum "kept having ideas about raping someone." On February 13, the Daily Citizen-News and the Chattanooga Times published additional stories on the hearings.

Pre-trial Motions.

Within a week, the local media informed Whitfield County of the next developments in the case. A Daily Citizen-News story of February 24 reported that the court had held a hearing on a motion for change of venue. See Respondent's Exhibit 17. At the hearing, the court permitted the defense to question three of its witnesses who had recently been called for jury service. The first witness revealed that she held opinions that Danny and Janice Buttrum had stabbed Ms. Parker, that she could not recall a crime which received more publicity in Whitfield County, and that her opinions were firmly held. Two other witnesses expressed similar views. The court refused to allow the defense to call any other of the 43 subpoenaed witnesses. The parties then entered into a stipulation:

The balance of the 43 . . . subpoenaed witnesses will have an opinion that Danny and Janice Buttrum were guilty, or at least involved in the killing of Demetra Faye Parker, and certain facts that have been brought out in the newspaper, television, and radio, but that probably they can set aside if they were called as Jurors in the case."

Respondent's Exhibit 17 at 72-73.

Articles on the hearing followed. The Chattanooga Times on February 25 summarized the hearing and noted:

The murder of Miss Parker has become Whitfield County's most infamous crime in recent years. The former Beauty pageant contestant had moved from near Dyersburg, Tenn., to work in Dalton-area carpet mills several months before her semi-nude body was found in a motel room she had rented.

An autopsy showed that Miss Parker had been stabbed 95-100 times and had been sexually molested, police said.

On February 25 the Daily Citizen-News published an article on the denial of the motion to quash the indictment reported that $ 28,000 had already been spent on the defense.

Terms used in the media describing the crime include: brutal; sexual torture; some one hundred wounds; mutilated; sex murder. These emotive figures were repeated over and over.

In this case, the media consumer in the county, a high percentage of which are prospective jurors, were showered with inflammatory material that had a high likelihood of causing opinions to be formed about the guilt of the defendants.

Id. Finally, Noble found that "jurors often are not aware of the degree to which their opinions about guilt have been influenced by the media, and further that prospective jurors responding to the authority figure of the judge are not apt to reveal their full feelings about their pretrial exposure . . . ." Id. at 4. He concluded that "prospective jurors in a jurisdiction so thoroughly contaminated with pretrial publicity have too heavy a burden to bear to meet the demands of impartiality." Id.

Maureen McLaughlin, a jury consultant, concurred in the conclusions of Dr. Noble. Id., Defendant's Exhibit 9 to March 6 Hearing. She testified that jurors are not aware of how much preconceived opinions about a case affect their judgment. Based upon the extensive amount of pretrial publicity in the Buttrums' case, she concluded, it would be very difficult for jurors to put aside their preconceived views. Id. at 56.

The court ruled that it would allow sequestered voir dire on the publicity issue but made no final ruling on the motion for change of venue.

On March 6, the Daily Citizen-News reported that Danny Buttrum's trial was scheduled for the following Monday, March 9. The article reviewed the latest events and recounted many of the details about the crime. On the eve of trial, the Chattanooga News-Free Press published a long story, summarizing many of the events of the preceding seven months and reviewing the details about the crime.

The Trial of Danny Buttrum.

The publicity most prejudicial to Janice Buttrum's trial was that covering her husband's trial. The media reported Danny Buttrum's confessions which in great detail told how the pair committed the crime and often cast Janice as the more perverse of the pair.

The first account was from the Daily Citizen-News on March 9: "Testimony is not expected to begin until Tuesday in the trial of the rape and murder of the Tennessee teenager as an expert opposing the death penalty is helping the defense." It noted that television stations from Atlanta and Chattanooga were covering the jury selection and included a sketch artist representing Channel 2 in Atlanta.

The Atlanta Constitution on March 10 published a long article that depicted a small community deeply upset about the death, "Girl's Slaying Stirs Anger, Shock In N. Georgia Town."

Today didn't come soon enough for some residents of this carpet mill town that sits in the shadow of Lookout Mountain.

"If this thing had happened 40 years ago, folks would have gone and got them out of the jail and made sure justice was done quick," explained the grizzled cashier of a self-service gas station. "And I'd have been with them. . . ."

"The tragedy that led to this day has had tongues wagging and tempers "hot hereabouts for half a year now."

In addition to profiling Demetra Parker as a shy, modest, pretty teen-ager, who sang in the choir, the story also recounted the crime, the arrest, the prior record of Danny Buttrum, his escape from the work camp, and that it had become evident that "Janice Buttrum -- who could face execution if convicted - was pregnant." It outlined the prosecution's theory of the case, including that the Buttrums "wrestled [the victim] to the floor, [and] stabbed her. She was repeatedly raped while still alive and bleeding. Then the Buttrums took her car and drove to Florida." All of the media followed the voir dire carefully, and at its conclusion noted that the court denied the motion for change of venue.

March 11.

The Daily Citizen-News reported on March 11, "Danny Buttrum today admitted to stabbing Demetra Parker numerous times in her motel room and having sex with her as [the court] ruled his confession could be admitted into evidence." It reported the contents of the confession:

The Chattanooga News-Free Press also published an article on March 12 headlined "FBI Agent Says Buttrum Confessed Murder." It detailed the findings of the pathologist, noting the depth of the wounds, the finding of teeth wounds on her neck, a "gaping hole" across her abdomen, that the doctor was of the opinion that the young woman died either after or at the very end of the stabbing, and that she was alive when she was raped and sodomized. WTVC TV-9 in Chattanooga and WQTM radio also aired reports about the confession.

District Attorney Steve Williams thundered in reply that Buttrum was like a shark feeding in a tank and acting with a sexual frenzy when he helped stab Demetra Parker 97 times and raped her.

The story pointed out that Williams asked the jury to consider the pain of Ms. Parker's family during its deliberations.

Ray Parker, the girl's father, bowed his head and wept as Williams pointed to him in the courtroom and noted that murder had taken a daughter that couldn't be replaced.

The article on the family recounted with pathos the grief and loss the father, the mother, and the family.

The Atlanta Journal published a story on March 14 summarizing the trial, headlined "Buttrum Found Guilty of Murder and Rape."

In the six months since the nude and bloody body of Miss Parker was found in her $ 50-a-week room at the Country Boy Inn, the slaying has been a frequent topic of conversation in this north Georgia carpet-mill town. The courtroom was crowded each day of the trial as farmers in bib overalls, secretaries in high heels, teen-aged girls in jogging suits and an assortment of other spectators listened to the grisly story.

It noted that the "Buttrums confessed to the crime shortly after they were captured in Demetra Parker's car." It reported that Ms. Parker's father "hung his head and wiped tears from his ruddy cheeks" as the District Attorney told the jury that "this man will never again know the love of his daughter," and that while several members of the Parker family attended trial, the victim's mother "just couldn't bring herself to come over."

The Chattanooga Times and the Chattanooga News-Free Press published similar articles on March 14. On its 6:00 news program, WTVC TV-9 from Chattanooga reported on the progress of the sentencing trial. Near the conclusion of its newscast, a late bulletin was broadcast:

Late word just in from Dalton . . . the defense team has introduced a letter written by Danny' wife Janice . . . in which she admits she forced Danny to take part in the crimes.

According to the letter, read to jurors . . . jealousy was the motive. And she . . . quote . . . loves him too much to let him die.

Late that night WQMT radio reported that the jury deliberated only 35 minutes before returning a death sentence. It also reported that defense lawyers had introduced a letter from "Danny's wife Janice, saying she was responsible for the crime."

March 15.

In its March 15 story, the Chattanooga News-Free Press reported on the events of the previous day in an article headlined "Mrs. Buttrum Letter Denies Spouse's Guilt." The article recounted the contents of the letter "absolving her husband of all responsibility in the . . . slaying." It quoted Janice in the letter, "I killed Demetra Parker as an act of jealousy. I was afraid he (Danny) was having sex with her . . . she was prettier than I was . . . . I made Danny do everything . . . my husband is guiltless." WTVC TV-9 summarized the trial in a final report on the jury's decision. "Jurors went along with prosecutor Steve Williams . . . who argued for the death penalty saying depraved is a weak word for how the defendant acted. . . What does society need with a pervert coward like Danny Buttrum?" He argued that Janice "admitted she forced Danny to take part [and] told jurors Danny was a ticking time bomb . . . which his wife knew how to detonate." Other electronic media also broadcast reviews of the week-long trial.

March 16.

On March 16, the print media published their concluding stories on the trial. The Daily Citizen-News published a front page story announcing the verdict, "Buttrum Receives Death Penalty." The story gave extensive coverage to the letter of Ms. Buttrum. "She claimed 'unwarranted jealously' . . . prompted her to use her influence to get her husband to rape and kill the helpless teenager . . . ." The article also identified each juror who sat on the case.

The Chattanooga News-Free Press published a story, headlined "Automatic Appeal Likely To Delay Buttrum Death." It informed readers that the execution date would be postponed due to mandatory appeals. The report revisited the evidence at trial, including that "Buttrum had signed a confession and had admitted he and his 19-year-old wife had killed the young woman." It quoted the district attorney's comments about the verdict:

2. Analysis of the Pretrial Publicity.

The picture that emerges is that of a community saturated with prejudicial and inflammatory publicity and predisposed as to the Buttrums' guilt. Under such circumstances, it would be unlikely to think that Janice Buttrum "received an impartial assessment of [her] guilt or innocence on the basis of the evidence, and the detached weighing of aggravating and mitigating circumstances which the Georgia death penalty system contemplates." Id. at 1539.

The showing made by Petitioner Buttrum is equal to that made in Coleman and Rideau. Whitfield County was larger than Seminole County (the venue in Coleman), but is was much smaller than Calcasieu Parish (the venue in Rideau). And similar to Rideau and Coleman, here, the media disseminated essentially verbatim a confession about the crime, that of the petitioner's own husband. As in Coleman, many of the widely publicized facts were inadmissible at Janice Buttrum's trial and sentencing, such as the personal qualities of the victim and the effects of the murder on the victim's family. In consideration of the totality of the circumstances, the Court concludes that the "petitioner has adduced evidence of inflammatory and prejudicial pretrial publicity that so pervaded the community as to render virtually impossible a fair trial before an impartial jury." Coleman, 778 F.2d at 1540. The Eleventh Circuit has held that "'where a petitioner adduces [such] evidence . . . [jury] prejudice is presumed and there is no further duty to establish bias. '" Coleman, 778 F.2d at 1490, quoting Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980).

3. Rebuttal of the Presumption of Prejudice.

There remains the question of whether the presumption of prejudice can be rebutted. While the Court has found no binding authority that such a presumption can be rebutted, there is dicta in Coleman and in Mayola to that effect. Assuming there could be such rebuttal, the court in Coleman examined the voir dire and found the presumption not rebutted. Coleman, 778 F.2d at 1541-43 & n. 25. The court however expressly declined to decide whether there could be rebuttal in an appropriate case. Id. at 1541 n. 25.

This Court concludes that the respondent should have the opportunity to rebut the presumption of prejudice, for if it can be shown that despite the saturation of the community with inflammatory publicity, the trial court succeeded in seating an impartial jury, there is no reason for upsetting the verdict. The burden nevertheless will be heavy. In Mayola, in dicta the court explained:

Although the state's burden would be very difficult to carry, it would not be insurmountable. Of course, it could not be satisfied merely by the juror's assurances on voir dire of their own impartiality. [citation omitted.] On the other hand, a showing that none of twelve jurors impanelled had ever been exposed, first or second hand, to the inflammatory publicity, would probably suffice to negate the presumption of prejudice flowing from that publicity.

Id. at 1001.

The burden is heavy because of the difficulty in determining prejudice by asking the jurors themselves whether they can lay aside their preconceived opinions. In Irvin, the Court found prejudice despite the fact that every juror questioned positively stated that he or she could render an impartial verdict. See id., 366 U.S. at 720, 724. "[A] 'juror is poorly placed to make a determination of his own impartiality. Instead the trial court should make this determination.'" Jordan v. Lippman, 763 F.2d 1265, 1274 (11th Cir. 1985) (citation omitted).

Since Mayola, however, the burden has been lightened somewhat. The Supreme Court in Patton v. Yount held that the trial court's determination of the impartiality of a juror is a finding of fact entitled to the presumption of correctness of 28 U.S.C. ? 2254(d). Id., 467 U.S. 1025, 1036-37, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984).

In this case, the presumption of prejudice is rebutted by the voir dire. The voir dire, while not perfect, was adequate to unearth the prejudice of the venire persons, and the errors made by the court were not so serious as to vitiate the presumption of correctness accorded the trial court's findings. Perhaps the most important factor that distinguishes this case from Coleman and Irvin, is that, here, individual jurors were questioned in sequestration. This was appropriate and made more likely the jurors' candor. See Irvin, 366 U.S. at 728; Patton v. Yount, 467 U.S. at 1036; Coleman, 778 F.2d at 1542.

All of the jurors had been exposed to the publicity to some degree, but the amount of exposure varied widely. The jurors' testimony reveals little or no passion or inflamed feelings about the case. A year had passed since the crime was first reported and five months since Danny Buttrum's trial. Cf., Yount, 467 U.S. at 1032-35. Moreover, of the seven jurors with the greatest exposure, four expressed skepticism about what is reported in the media."

Only one juror, Juror Ten, stated that she had an opinion that Janice Buttrum was guilty. Her testimony far exceeds any of the other jurors in approaching entrenched bias. If examining her testimony in the first instance, this Court would have excused her for cause. Nevertheless, her testimony does not show opinions so entrenched as to overcome the presumption of correctness that must be accorded the trial court's finding. See 28 U.S.C. ? 2254(d)(1)-(8).

A. Well, I can understand there's two sides to it.

The Court: Well, do you think going through this voir dire process has reinforced the opinion you had, or lessened the opinion you have?

A. I guess it would lessen the opinion I have.

The Court: Do you think they'd have to overcome that opinion?

A. No, I don't think so.

The Court: Do you think you can put all that out of your mind and start fresh?

A. Uh-huh.

The Court: Is there any doubt that you could do that?

A. No, none whatsoever.

The Court: Could you base any decision that you might have to make solely upon the evidence you'd hear in Court and arrive at a verdict based on that evidence, as applied to the Law as Charged by the Court?

A. Yes, I could.

The Court: You think you could do that regardless of anything you may have read or heard, and not let anything you've previously read or heard sway you?

A. Uh-huh.

The Court: Is there any doubt in your mind as to that ability?

A. No sir, no doubt.

The Court: I find the juror qualified.

Respondent's Exhibit 2 at 843-53.

While this Court views with some skepticism her attestations of her capability to lay aside her opinions, in cases of ambiguity, the Court must defer to the finding of the state court. See Yount, 467 U.S. at 1040. That finding was not without adequate factual support in the record, 28 U.S.C. ? 2254(d) (8), or flawed for any of the other reasons set forth in ? 2254(d)(1) - (8).

Petitioner contends that the voir dire was inadequate for two basic reasons. First, the trial court restricted defense counsel from asking open-ended questions about what the jurors had read or heard. This limitation forced the voir dire to be conducted through leading questions only. This was error. There is no reason why counsel should not be allowed to inquire with open-ended questions into what the jurors had heard. The Jordan Court explained:

The court should [determine] what in particular each juror [has] heard or read and how it affected his attitude toward the trial, and . . . [determine] for itself whether any juror's impartiality had been destroyed.

Jordan, 763 F.2d at 1274 (citation omitted). The court there held that the absence of a probing voir dire that focussed upon what each juror had been exposed to an how the exposure would affect their impartiality denied Jordan his right to an impartial jury. Id. at 1281; see also Coleman, 778 F.2d at 1543 & n. 26 (criticizing "conclusory" voir dire questions).

Nevertheless, while not permitting open-ended questions, the trial court in this case did not limit the range or scope of the leading questions, and a review of the entire 1222-page transcript of the voir dire, shows that counsel was permitted to inquire as to whether jurors had heard reports or held opinions essentially about any fact of the case. Thus, while it was error to limit the voir dire to leading questions, the error did not prevent the defense from examining in detail the jurors' exposure to the media and their opinions.

Second, Buttrum contends that the court began each individual session with an improper instruction. Initially, defense counsel was prevented from asking the jurors whether based upon what they had read or heard, they had formed an "opinion" about particular aspects of the case. The court erroneously ruled that such questions were tantamount to asking them to "prejudge" the case. See Respondent's Exhibit 2 at 151-61. The court decided to give the following instruction:

Let me explain something to you right here. When the attorneys or I ask you about opinions and beliefs and stuff like that, make sure -- there's a difference between reading something and remembering it, and reading or finding out about something and making it your opinion or belief. Now, make sure that distinction, as to whether it's just something you read or heard, or whether you've got a firm, fixed opinion.

Respondent's Exhibit 2 at 238-39. Defense counsel objected to this admonishment on that ground that it had a "chilling effect upon the Juror, in the sense that it perhaps instills in their mind the impression that having an opinion is incorrect and improper." Id. at 321-22. Petitioner is correct that such an instruction would tend to communicate that having a firm, fixed opinion was incorrect or improper, as defense counsel objected. The very purpose of the voir dire is to determine the existence of such opinions. Nevertheless, the court soon began adding that there were no right or wrong answers and that the jurors should simply be candid in their answers. And before long, the Court was permitting and even insisting that counsel use the word "opinion" rather than "feeling" or "belief." Finally, it is apparent that the jurors did disclose when they had an opinion or a belief about the aspects of the case when inquired into by defense counsel.

In conclusion, the Court holds that while the voir dire was not without error, it was adequate to reveal the jurors who had entrenched opinions, and those twenty-four jurors were excused for cause. The one juror seated who had a firm, fixed opinion as to guilt positively affirmed she could lay it aside, and the trial court's finding of impartiality is entitled to a presumption of correctness. Her testimony reveals insufficient bias to overcome that presumption. The Court concludes that the respondent has overcome the presumption of jury prejudice. The voir dire shows that entrenched prejudice did not infect the jury which ultimately found Buttrum guilty and sentenced her to death.

Accordingly, the petition for the grant of habeas corpus relief on this ground is DENIED.

B. The Charge to the Jury at Buttrum's Competency Hearing.

Prior to her trial, Buttrum requested a court-ordered evaluation of her competency to stand trial. After her psychological evaluation, the court empaneled a jury and held a hearing to determine her competency. In accordance with Georgia law, the court instructed the jury that Buttrum bore the burden to prove incompetency. Buttrum contends that the placement of the burden of proof on the defendant to prove incompetence by a preponderance of evidence is unconstitutional. Buttrum's contention is without merit.

The Georgia Supreme Court has held:

The trial on the issue of mental competency contemplated by O.C.G.A. ? 17-7-130(a) is in the nature of a civil proceeding and the defendant has the burden to prove incompetency by a preponderance of the evidence.

Partridge v. State, 256 Ga. 602, 603, 351 S.E.2d 635 (Ga. 1987).

This placement of the burden upon the defendant by the state legislature does not violate due process. Lowenfield v. Phelps, 817 F.2d 285, 294-95 (5th Cir. 1987) (declining to follow United States Ex. Rel. Bilyew v. Franzen, 686 F.2d 1238, 1246 (7th Cir. 1982)), aff'd on other grounds, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988); cf. Spencer v. Zant, 715 F.2d 1562, 1567 (11th Cir. 1983) (while not addressing a due process challenge to the placement of burden, the court held that "Spencer wholly failed to establish any substantial or bona fide doubt that he was competent to stand trial."), on reh'g en banc, relief granted on other grounds, sub nom., Spencer v. Kemp, 781 F.2d 1458 (11th Cir. 1986) (en banc); see also Wallace v. Kemp, 581 F. Supp. 1471, 1478 (M.D.Ga. 1984) (Georgia placement of burden on defendant not unconstitutional), rev'd on other grounds, 757 F.2d 1102 (11th Cir. 1985); contra, United States ex rel. Bilyew v. Franzen, 686 F.2d 1238, 1244-45 (7th Cir. 1982) (burden constitutionally required on the prosecution); Brown v. Warden, 682 F.2d 348, 351-52 (2d Cir. 1982) (same), cert. denied, 459 U.S. 991, 74 L. Ed. 2d 388, 103 S. Ct. 349 (1982). This Court adopts the reasoning of the Fifth Circuit in Lowenfield and concludes that this issue is without merit.

Respondent's Exhibit 8, Transcript at 625-28. While the Court used the terms "sane" and "insane," it is apparent that a reasonable jury would have understood that the issue to be decided was the mental capacity of the defendant to understand the nature of the proceedings against her and to assist in conducting her defense. This issue accordingly is without merit.

C. Justice of the Peace Billy Broom's Issuance Of the Arrest Warrant and Presiding Over the Preliminary Hearing.

Justice of the Peace Billy Broom issued Janice Buttrum's arrest warrant, charging her with murder, and served as presiding judge at her preliminary hearing. Buttrum contends that these judicial acts were unconstitutional because he was at the time also a deputy sheriff. Second, she contends that he was operating within an unconstitutional "fee system" then in operation in Georgia.

Respondent contends that the instant claim presents only a Fourth Amendment claim precluded from federal habeas review by Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976). While these issues are not limited to Fourth Amendment concerns and are not barred by Stone v. Powell, habeas relief is not warranted because any error committed by Justice of the Peace Broom was subsequently corrected by the grand jury.

In Vaughn v. State, 160 Ga. App. 283, 284, 287 S.E.2d 277 (1981), the Georgia Court of Appeals overturned a conviction, finding that Justice of the Peace Broom was

"per se" disqualified as a neutral and detached magistrate. . . . At the time of the issuance of the search warrant in this case, Judge Broom was ostensibly authorized to exercise both executive functions in his capacity as justice of the peace. This was not proper and negates any possibility of a finding that Judge Broom was a neutral and detached magistrate.

Id. at 284. This Court concurs in the decision of the Georgia Court of Appeals that Justice of the Peace Broom could not act as a neutral and detached magistrate given his executive position as deputy sheriff. "Whatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement." Shadwick v. City of Tampa, 407 U.S. 345, 350, 32 L. Ed. 2d 783, 92 S. Ct. 2119 (1972)

1. The Preliminary Hearing.

The Supreme Court has held that the preliminary hearing is a "critical stage" in the criminal process for purposes of the right to counsel. Coleman v. Alabama, 399 U.S. 1, 9-10, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970). It follows that if the defendant is entitled to counsel, at a minimum he is entitled to a an unbiased decision maker. "The accused is as entitled at [a] preliminary hearing to an impartial decision maker as in a guilt trial." Tucker v. City of Montgomery Bd. of Com'r., 410 F. Supp. 494, 506 (M.D.Ala. 1976) (Godbold, J., for three judge court) (holding unconstitutional Alabama fee systems for magistrates). Thus, Buttrum was denied due process at her preliminary hearing.

Buttrum contends that when a defendant is denied an impartial adjudicator reversal is automatic, citing Rose v. Clark, 478 U.S. 570, 579, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986) (biased trial judge). Petitioner cites no other authority for her position, and the Court has located none to the effect that such error at a preliminary hearing requires automatic reversal. Rose v. Clark and similar cases involved unbiased decision makers at trial.

The denial of an unbiased decision maker at a preliminary hearing is different. The function of the preliminary commitment hearing in Georgia is to determine if probable cause exists to authorize the keeping in custody of one accused of committing a crime, pending determination by the grand jury that probable cause exists for the suspect to stand trial. Blake v. State, 109 Ga. App. 636, 640, 137 S.E.2d 49 (Ga.Ct.App. 1964), cert. denied, 379 U.S. 924, 13 L. Ed. 2d 337, 85 S. Ct. 281 (1964). Subsequently, the grand jury determines whether sufficient evidence exists to try the defendant, and a trial by jury determines whether the defendant has committed the crime alleged.

Given this procedure, a showing of prejudice is required before habeas relief can be granted on a claim of a biased adjudicator at a preliminary hearing. Otherwise a conviction would be set aside because of a tainted preliminary hearing even though subsequently a grand jury properly found sufficient evidence for the defendant to stand trial. Such a result defies common sense. It is true that the Supreme Court has held that the possibility of appeal is an inadequate remedy for a biased adjudicator at trial. See, e.g., Ward v. Village of Monroeville, 409 U.S. 57, 61-62, 34 L. Ed. 2d 267, 93 S. Ct. 80 (1972) ("Petitioner is entitled to a neutral and detached judge in the first instance."). Nevertheless, the grand jury examines the issue of probable cause de novo. The likelihood that it will cure any harm caused by a disqualified preliminary hearing judge compels a showing of prejudice before habeas relief may be granted.

In this case, Buttrum has alleged no impropriety or other error in the grand jury's determination that probable cause existed for her to stand trial. With no such error being shown or found by the Court, any harm sustained by the disqualified preliminary hearing judge was cured. This issue therefore is without merit.

2. The Issuance of the Arrest Warrant.

The claim that Buttrum is entitled to habeas corpus relief because of Justice of the Peace Broom's issuance of her arrest warrant resolves similarly. First, as contended by respondent, to the extent that the issue raises a Fourth Amendment claim, it is barred by Stone v. Powell. To the extent that the claim raises a Fourteenth Amendment issue, that the warrant was issued by a disqualified Justice of the Peace, it is dissolved by the preceding analysis. The purpose of having an arrest warrant properly issued is to ensure the existence of probable cause for an arrest. Subsequently, the grand jury determines, on evidence, that probable cause exists for the defendant to stand trial. Accordingly, as with the preliminary hearing issue, any defect in the issuance of the warrant that violated due process requires a showing of prejudice to warrant the grant of habeas corpus relief. Buttrum has shown no prejudice, and this ground for habeas relief thus fails.

Buttrum originally contended that the prosecution had suppressed evidence favorable to her in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). She contended that the state had indicated that at least one of its witnesses had a prior criminal conviction, and the trial court did not require the state to disclose such information. During this habeas action, the Court ordered these documents turned over to the petitioner. After receipt of the documents, Buttrum admits she has no evidence of any Brady violation. This issue accordingly is without merit.

E. The Admission of the Defendant's Post-Arrest Inculpatory Statements.

Buttrum contends that the trial court unconstitutionally admitted into evidence certain inculpatory statements made after her arrest. She contends her Fifth Amendment right to counsel was violated when incriminating statements were made after her arrest in the absence of a knowing and intelligent waiver of her right to counsel. Similarly, she contends her Sixth Amendment right to counsel was violated because additional statements were made in the absence of counsel after the attachment of her right to counsel. Both of these contentions are without merit.

1. The Fifth Amendment Challenge.

The jurisprudence of the Fifth Amendment on the admissibility of custodial statements requires that a waiver of the Fifth Amendment right to counsel must be freely and voluntarily given, and must be knowingly and intelligently made. See, e.g., Fare v. Michael C., 442 U.S. 707, 725, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979). The question before this Court is whether, as a matter of law, Petitioner Buttrum executed a valid waiver of her Fifth Amendment rights prior to making her post-arrest inculpatory statement.

The respondent incorrectly urges as conclusive the findings of the state habeas corpus court as to the voluntary and intelligent nature of petitioner's statement. While findings of fact made by a state court, generally, must be accorded a presumption of correctness by a federal habeas court, the issue of the voluntariness of a confession is a mixed question of law and fact for which the Court must make an independent inquiry. Miller v. Fenton, 474 U.S. 104, 112, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985); Mincey v. Arizona, 437 U.S. 385, 398, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1977); Williams v. Johnson, 845 F.2d 906, 909 (11th Cir. 1988).

A confession is voluntary if, under the totality of the circumstances, it is a product of free and rational choice. Paxton v. Jarvis, 735 F.2d 1306 (11th Cir.), cert. denied, 469 U.S. 935, 83 L. Ed. 2d 271, 105 S. Ct. 335 (1984). A confession is not voluntary if it is extracted through use of improper influence, such as threats or violence or is obtained by promises. Harris v. Dugger, 874 F.2d 756, 761 (11th Cir. 1989).

The petitioner, who has the burden of proof, has failed to establish that her post arrest confession of September 4 was given in violation of her Fifth Amendment rights. A pretrial suppression hearing revealed the following facts: After the murder, the petitioner and her husband took the victim's car and drove to Pensacola, Florida. Upon learning of the Buttrum's likely destination, the G.B.I. secured an unauthorized flight complaint from the United States Attorney's Office in Atlanta, and a U.S. Magistrate issued an arrest warrant for the Buttrums. Immediately upon her arrest, Janice was advised of the murder charges against her, Respondent's Exhibit No. 21 at 33-36, and of her Miranda rights, Respondent's Exhibit No. 3 at 1293. Three law enforcement officers were present at the time. Id. at 1294. The arrest and admonishment of rights occurred at approximately 10:00 a.m. on the morning of September 4, 1980.

Petitioner also asserts that the Sixth and Fourteenth Amendments required the suppression of inculpatory statements of September 5, 1980. On that date as well, Buttrum implicated herself in the murder, and her statement was introduced into evidence. Petitioner contends that when this statement was made, the state had committed itself to prosecute her for murder, her right to counsel accordingly had attached, and interrogation in the absence of counsel was thus improper.

It is well settled that "absent a valid waiver, the defendant has the right to the presence of an attorney during any interrogations occurring after the first formal charging proceeding, the point at which the Sixth Amendment right to counsel initially attaches." Moran v. Burbine, 475 U.S. 412, 425, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986); United States v. Gouveia, 467 U.S. 180, 187, 81 L. Ed. 2d 146, 104 S. Ct. 2292 (1984). The Sixth Amendment right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. Gouveia, 467 U.S. at 187; Estelle v. Smith, 451 U.S. 454, 469-70, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981); Kirby v. Illinois, 406 U.S. 682, 688-89, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972); Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55 (1932). A waiver of the right must be knowing and intelligent, and the accused must be "sufficiently aware of his right to counsel" and "of the consequence of a decision to forgo the aid of counsel." Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 272, 108 S. Ct. 2389 (1988).

Petitioner strenuously contends that her Sixth Amendment right to counsel attached upon her appearance before the federal magistrate on September 4, 1980, in Florida. As a result, she maintains, the September 5 statement was inadmissible at trial because it was made without the attendance of an attorney for the accused. Assuming arguendo that her right to counsel had attached at the hearing before the magistrate, her Sixth Amendment argument still must fail.

The Supreme Court in Patterson, held that where the defendant is admonished with Miranda warnings after the right to counsel attaches, and then voluntarily makes inculpatory statements, the statements need not be suppressed. Id. at 272 The proper execution of a valid waiver of those rights serves as a voluntary, knowing, and intelligent waiver of the right to counsel. Id. "The fact that petitioner's Sixth Amendment right came into existence . . . does not distinguish [her] from the preindictment interrogatee whose right to counsel is in existence and available for his exercise while he is questioned." Id. at 271. Thus, Patterson defeats Buttrum's argument that after the right attaches, any subsequent incriminatory statements made in the absence of counsel must be suppressed. A valid waiver makes such statements admissible.

Did Buttrum execute a valid waiver of her right to counsel before she gave her statements of September 5, 1980? On that date, Whitfield County officers travelled to Pensacola, Florida, to transport the petitioner and her husband back to Whitfield County. The officers took her in custody at 8:45 a.m. on September 5, 1980. Before beginning the trip back to Georgia she was advised of her Miranda rights by Agent Johnson of the G.B.I. Respondent's Exhibit No. 3 at 1336.

On arriving in Whitfield County, she was taken to the county jail for interrogation. Id. at 1339. Prior to questioning, Agent Johnson again informed her of her rights. He also produced a "Waiver of Rights" form, read it to her, and asked her to read it herself. Id. She replied that she knew her rights and then signed the form. Id. There is no evidence that Agent Johnson or anyone else made any threats or promises, or held out the hope of reward to induce her to sign the form. After signing the waiver form, she voluntarily admitted her role in the murder and that she felt no remorse about the death of Ms. Parker.

All the evidence indicates that Buttrum was fully aware of her rights prior to signing the waiver form. The waiver form indicated that she had a right to counsel and the right to refuse to answer questions or make statements without first consulting an attorney. She stated she fully understood her rights. No evidence suggests that her confession was anything other than voluntary.

Petitioner Buttrum contends this testimony was inadmissible hearsay, was "highly prejudicial," and violated her right to confrontation under the Sixth Amendment because it was not shown to be trustworthy and it precluded her right to cross-examine the declarant. In support she cites Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). In Roberts, an out-of-court declarant's statement was held admissible because it met strict standards of reliability and trustworthiness because it had been subject to cross-examination at a preliminary hearing. The respondent contends that Busby's testimony was admissible under an exception to the hearsay rule as a statement of a co-conspirator made in the defendant's presence, citing Sprouse v. State, 242 Ga. 831, 252 S.E.2d 173 (1979); Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (Ga. 1976), cert. denied, 429 U.S. 1029, 50 L. Ed. 2d 632, 97 S. Ct. 654 (1976). The Georgia Supreme Court so held in Buttrum, 249 Ga. at 654-55. Further, respondent contends that an improper admission of hearsay evidence warrants habeas relief only where the evidence was "material in the sense of a crucial, critical, highly significant factor." Shaw v. Boney, 695 F.2d 528, 530 (11th Cir. 1983).

1. Analysis of the Issue.

In this case, the challenged statement was inadmissible because it lacked the necessary indicia of reliability required by the confrontation clause. While the Supreme Court has not indicated that the right to confrontation is exactly coextensive with the hearsay rules, it is rare that evidence which is not hearsay or is admissible under a hearsay exception is held violative of the confrontation clause. Collins v. Francis, 728 F.2d 1322, 1336 (11th Cir. 1984) (citation omitted), cert. denied, 469 U.S. 963, 83 L. Ed. 2d 297, 105 S. Ct. 361 (1984). The crucial concern behind the confrontation clause is the "trustworthiness of [the] testimony." Id.

Two requirements must be met . . . before confrontation may be dispensed with. First, the prosecution must show that the out-of-court declarant is unavailable to testify despite its good faith efforts to obtain his presence at trial. Second, the prosecution must show that the out-of-court statements bear sufficient indicia of reliability to provide the jury with an adequate basis for evaluating their truth.

United States v. Chapman, 866 F.2d 1326, 1331 (11th Cir. 1989), (petition for certiorari filed June 17, 1989), citing, inter alia, Roberts, 448 U.S. at 66. Here, there was no showing of the unavailability of Danny Buttrum.

The second requirement -- that the out-of-court statement bear sufficient indicia of reliability -- presents more difficulty in this case. The Supreme Court has noted that reliability "can be inferred without more in a case where the evidence falls within a firmly-rooted hearsay exception." Roberts, 448 U.S. at 66.

In this case, the Georgia Supreme Court found the statement admissible under the Georgia co-conspirator exception to the hearsay rule. See Buttrum, 249 Ga. at 654-55; see also Sprouse v. State, 242 Ga. 831, 252 S.E.2d 173 (Ga. 1979); Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (Ga. 1976). Under the federal rule, however, the statement would not have been admissible. The federal rule, Fed.R.Evid. 801(d)(2)(E), requires that the statement be made during the pendency of the conspiracy: "A statement made by a co-conspirator is admissible if evidence independent of [the] hearsay statement[] shows that the conspiracy existed, that persons challenging admission were members of the conspiracy, and that the statement [was] made during the course of and in furtherance of the conspiracy. United States v. Caporale, 806 F.2d 1487, 1512 (11th Cir. 1986), cert. denied, 483 U.S. 1021, 97 L. Ed. 2d 763, 107 S. Ct. 3265 (1987).

In this case, there was insufficient evidence that the statement was made during the pendency of a conspiracy. The evidence showed only that at the time the statement was made the Buttrums were riding around with Busby, going to get beer. No independent evidence suggested that the Buttrums had at that time entered a conspiracy to commit any crime.

Thus, the state rule allowed admission while the federal rule would not. In such a case, where "the state's co-conspirator exception is more expansive than the federal, the proper approach for federal courts on habeas corpus review" is to consider "whether the testimony meets the more general tests of reliability outlined in [the confrontation clause] opinions." Park v. Huff, 493 F.2d 923, 930 (5th Cir. 1974), cert. denied, 423 U.S. 824, 46 L. Ed. 2d 40, 96 S. Ct. 38 (1975).

The more general tests for reliability are the following:

(1) whether the truth of the out-of-court statements is corroborated by other evidence [citation omitted]; (2) the extent of the out-of-court declarant's personal knowledge of the defendant's identity and role in the crime; (3) the possibility that the statements are founded on faulty recollection; and (4) the circumstances under which the statements were made.

Chapman, 866 F.2d at 1330 (citations omitted).

The challenged statement in this case does not meet those standards of reliability because of the first and fourth factors. First, no other evidence corroborated the statement that Janice would not mind Danny picking up a woman as long as she could have sex with the woman first. And under the fourth factor, the circumstances undermined the statement's reliability. The statement could have been made in jest, or could have been a lie to persuade Busby to help Danny find a woman, and Janice could have been afraid to cross Danny and deny the statement. Numerous interpretations could be made from the statement. Cross-examination could have clarified the statement's ambiguity. It clearly lacked the necessary indicia of reliability required by the confrontation clause.

2. Harmless Error

In Delaware v. Van Arsdall, 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986), the court held that "the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman [v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967)] harmless-error analysis." Id., 475 U.S. at 684. The Chapman standard has most recently stated by the Supreme Court as follows: A Constitutional error may be held harmless "if the prosecution can prove beyond a reasonable doubt that [it] did not contribute to the verdict." Satterwhite v. Texas, 486 U.S. 249, , 100 L. Ed. 2d 284, 293, 108 S. Ct. 1792 (1988). The Court must "make an intelligent judgment about whether the erroneous [comment] might have affected [the] jury." Id., 486 U.S. at , 100 L. Ed. 2d at 295.

Here, the prejudice of Busby's testimony far outweighed its probative value. See Collins v. Francis, 728 F.2d 1322, 1336 n. 12 (11th Cir. 1984), cert. denied, 469 U.S. 963, 83 L. Ed. 2d 297, 105 S. Ct. 361 (1984), citing 4 Weinstein's Evidence para. 801(d) (2) (B) [01] (1981) (in determining whether silence may be construed as adoption of statement of coconspirator made in defendant's presence, federal courts should make Fed.R.Evid. 403 prejudice evaluation).

The prejudice did not sufficiently infect the guilt-innocence phase to require a new trial, but it spilled over and contaminated the sentencing phase so as to require a new sentencing hearing. The evidence of guilt, that Janice Buttrum knowingly and intentionally participated in the murder of Demetra Parker, including the evidence of her confession, was overwhelming. Even absent the admission of the hearsay statement, the Court can confidently say, beyond a reasonable doubt, United States v. Hasting, 461 U.S. 499, 510-11, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983), that the jury would have found her guilty of the murder of Demetra Parker.

The statement, however, prejudiced Buttrum in the sentencing phase. The defense at sentencing was essentially that Janice Buttrum, while participating in the murder, acted under the domination of her husband and played a less culpable role than he, one not warranting death. Busby's testimony implied that Janice Buttrum wanted to have sex with Danny's "pick-up" before Danny had sex with her. It portrayed her not as a dominated follower of her husband, but as a willing participant in a plan of perverse sexual activity that ultimately led to the death of Demetra Parker. Moreover, the statement portrayed her as having unusual or aberrant sexual desires. This portrayal was in accord with Dr. Adams's diagnosis of her as sexually perverted. It portrayed her as one with a "depraved" mind, which portrayal tended to satisfy the element of one of the aggravating circumstances, depravity of mind, argued by the prosecution for imposition of death. Further, it was the only evidence introduced by the state subject to interpretation that her participation in the murder may have been premeditated and not an act of passion or done under the domination of her husband. In this sense, the statement was a "critical" and "highly significant factor." Its introduction therefore was not harmless beyond a reasonable doubt and requires a new sentencing hearing.

G. The Admission of Gruesome Photographs.

Buttrum contends that the introduction of several gruesome photographs of the victim's body deprived her of her Eighth and Fourteenth Amendment rights. These photographs were introduced both at the guilt and penalty phases of the trial. Generally, the introduction of evidence involves only state law and is cognizable on habeas review only if it rendered the trial fundamentally unfair. See Amadeo v. Kemp, 816 F.2d 1502, 1504-05 (11th Cir. 1987) (citations omitted), rev'd on other grounds, sub nom., Amadeo v. Zant, 486 U.S. 214, 100 L. Ed. 2d 249, 108 S. Ct. 1771 (1988). Buttrum contends that the photographs of the victim were unduly prejudicial and inflammatory and were not relevant to any issue of guilt or punishment.

For the sake of argument, the Court will assume that the introduction of the photographs was improper at the guilt phase of the trial because no issues were raised by the defense as to, for example, the cause of death, the repeated stabbing, Buttrum's participation in the murder, accident, etc. The gruesome nature of the photographs thus could only have inflamed the emotions of the jury. Nevertheless, the evidence of guilt in this case, including the petitioner's post-arrest confessions, was sufficiently overwhelming that the introduction of the photographs was not so prejudicial as to result in a fundamentally unfair trial.

Buttrum contends that the photographs also were not relevant to any issue of punishment. The respondent, however, correctly contends they were relevant to the aggravating circumstance that the murder was wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. O.C.G.A. ? 17-10-30(b) (7). The photographs were clearly relevant to show the (b) (7) circumstance. The location, number, and extent of the wounds were clearly relevant to these factors. Accordingly, habeas corpus relief is not warranted on this issue.

H. Prosecutorial Misconduct.

Buttrum contends that several remarks of the prosecutor during closing argument violated her constitutional rights. She contends first that the prosecutor violated her Fifth Amendment right against compulsory self-incrimination by commenting on her right not to take the witness stand:

Defense? There is none. There has not been one iota of evidence to indicate that this defendant did not do what she is charged with . . . .

Tr. 1713. She contends that this remark violated the rule that the prosecutor may not comment of the defendant's failure to testify during trial.

1. Legal Principles.

The Fifth Amendment prohibition against compulsory self incrimination insures the right of all criminal defendants not to testify at trial. From this derives the proscription that the prosecution may not comment on its exercise. Griffin v. California, 380 U.S. 609, 611-15, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965). "Prosecutorial comment is improper if the defense can demonstrate either that '(1) the prosecutor manifestly intended to comment on the defendant's silence, or (2) that the character of the comment was such that a jury would naturally and necessarily construe it as a comment on the defendant's silence.'" United States v. Griggs, 735 F.2d 1318, 1322 (11th Cir. 1984) (citation omitted). While it is improper for the prosecution to comment on the defendant's failure to testify, "it is not error 'to comment on the failure of the defense, as opposed to the defendant, to counter or explain the evidence.'" Id. at 1321, quoting United States v. Bright, 630 F.2d 804, 825 (5th Cir. 1980) (emphasis added by Bright court); see also United States v. Johnson, 713 F.2d 633, 650-51 (11th Cir. 1983) (where defendants chose not to testify at trial but records available to the defense might have existed which would have contradicted the government's theory of the case, prosecutorial comment on the failure of the defense to produce any evidence or testimony in rebuttal to the espoused theory held permissible), cert. denied, sub nom., Wilkins v. United States, 465 U.S. 1081, 79 L. Ed. 2d 766, 104 S. Ct. 1447 (1984). Nevertheless, "where the rebuttal testimony or evidence could come only from the defendant, a failure of the defense to present evidence is equivalent to the failure of the defendant to testify." Griggs, 735 F.2d at 1322 (emphasis in original); see also Griffin v. California, 380 U.S. 609, 610-15, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1963) (comment on defendant's failure to provide evidence on matters that only he could have been expected to deny or explain violated 5th Amendment).

2. Analysis.

In this case, the state habeas court found the following:

The thrust of the prosecutor's case was that the Petitioner was an active, willing and aggressive participant in a conspiracy to commit murder. Through its line of questioning and cross-examination throughout the trial, the defense tried to show that the murder was planned and executed solely by Danny Buttrum. Thus viewed in the context of the charges against Petitioner, this Court finds that the prosecutor's statements were made for the purpose of arguing Petitioner's involvement in the crime.

Respondent's Exhibit No. 35 at 7. This finding of fact as to the prosecutor's purpose is entitled to presumptive weight by this Court. 28 U.S.C. ? 2254(d). This finding resolves the inquiry about the first possible basis for finding improper conduct: whether the prosecutor intended the statement as a comment on the defendant's right to silence.

Further, the crime occurred in a motel room where only Janice and Danny Buttrum, their baby, and the victim were present. The defense never claimed Janice was not present in the room. If she had made such a claim, the prosecutor's comment might be taken as a proper attack on her defense, because the jury could assume that if she was not present at the crime, she would have presented alibi evidence. See Duncan v. Stynchcombe, 704 F.2d 1213, 1215 (11th Cir. 1983) (prosecutor's comment that "there has been no evidence in this case from the defense at all that Duncan was not in that house" held a proper reference to failure of the defense to offer any alibi evidence as to the defendant's whereabouts at the time of the burglary). The defense here was that Buttrum played a more minor role and acted under the influence of her husband. The person who naturally would be expected to explain the role she played in that motel room was Janice Buttrum herself. The prosecutor's remarks thus "naturally and necessarily" would have been taken as a comment on her failure to testify. Accordingly, Buttrum's Fifth Amendment right not to be subjected to prosecutorial comment on her failure to testify was violated.

3. Harmless Error.

The conclusion, however, does not end the inquiry. The Supreme Court has held that such a violation of the defendant's Fifth Amendment right is subject to analysis of whether the improper comment was harmless beyond a reasonable doubt. United States v. Hasting, 461 U.S. 499, 507-512, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983), citing Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). The Chapman standard for harmlessness of a constitutional error has most recently stated by the Supreme Court as follows: A constitution error may be held harmless "if the prosecution can prove beyond a reasonable doubt that [it] did not contribute to the verdict." Satterwhite v. Texas, 486 U.S. 249, , 100 L. Ed. 2d 284, 293, 108 S. Ct. 1792 (1988). The Court must "make an intelligent judgment about whether the erroneous [comment] might have affected [the] jury." Id., 486 U.S. at , 100 L. Ed. 2d at 295. In Hasting, the Court stated the test as, "absent the prosecutor's allusion to the failure of the defense to proffer evidence . . ., is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?"

The test of whether a comment on the failure to testify might have contributed to a verdict requires a kind of post-hoc speculation many would consider to be of dubious dependability. Where the evidence of guilt is overwhelming the test is more easily applied. Here, Buttrum's confession presented overwhelming evidence of her guilt. But the confession may have been given undue weight if the jury concluded that her failure to explain her confession meant there was no explanation. Nevertheless, applying the Hasting formulation of the standard, the Court can say beyond a reasonable doubt that absent the unconstitutional comment, given the strong evidence of the state, including Buttrum's confessions, the jury would have found her guilty of murder and theft by taking. This issue therefore does not warrant the grant of habeas relief.

The petitioner's challenges to other comments of the prosecutor have been carefully examined and determined to be without merit. While several constituted improper prosecutorial comment, viewed in the context of the entire trial, they were not so egregious as constitute a denial of fundamental fairness. See Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974); Brooks v. Kemp, 762 F.2d 1383, 1400 (11th Cir. 1985), cert. denied, 478 U.S. 1022, 92 L. Ed. 2d 742, 106 S. Ct. 3337 (1986). The strength of the evidence at trial left little doubt about Buttrum's participation in the crime. Absent these additional allegedly improper comments, it can be said beyond a reasonable doubt the verdict would have been the same.

I. The Trial Court's Charge on Conspiracy.

Buttrum next contends that she was indicted for malice murder and theft by taking, but the trial court charged that the jury could convict on vicarious liability theories: conspiracy, aiding and abetting murder, and felony murder. She contends the court effectively amended the indictment from a murder count, to one much broader, in violation of her constitutional rights. She contends this Amendment deprived her of her right to notice of the charges against her and subjected her to conviction on a charge not made.

In its charge, the trial court defined conspiracy:

I will define what the Law means by "Conspiracy." A person is involved in a conspiracy to commit a crime when that person, together with one or more other persons, conspires to commit any crime, and that any one or more of such persons does an overt act to effect the object of the conspiracy. To show a conspiracy -- and I Charge you that it is sufficient for two or more persons, in any manner, positively or tacitly came [sic] to a mutual understanding that they will accomplish an unlawful design or a criminal act. Anyone after a conspiracy is formed who knows of its existence and purposes and joins therein becomes as much a party thereto as if he had been an original member.

Respondent's Exhibit 3 at 1740. Later, the court charged the jury that if they found the existence of a conspiracy, they were permitted to consider statements of any coconspirator of the defendant against her.

An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or the court after the grand jury has last passed upon them. United States v. Salinas, 654 F.2d 319, 324 (5th Cir. Unit A August 1981) (citation omitted), overruled on other grounds, United States v. Adamson, 700 F.2d 953 (5th Cir. 1983), cert. denied, 464 U.S. 833, 78 L. Ed. 2d 116, 104 S. Ct. 116 (1983). A constructive amendment to the indictment occurs where a jury instruction "so modifies the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury's indictment." United States v. Lignarolo, 770 F.2d 971, 981, n. 15 (11th Cir. 1985), cert. denied, 476 U.S. 1105, 90 L. Ed. 2d 358, 106 S. Ct. 1948 (1986); United States v. Johnson, 713 F.2d 633, 643 (11th Cir. 1983), cert. denied, 465 U.S. 1081, 79 L. Ed. 2d 766, 104 S. Ct. 1447 (1984); see also Stirone v. United States, 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960).

In this case, no constitutional error was committed by the charging court. "Statements of a coconspirator may be introduced into evidence even though the government has not charged [the defendant] with conspiracy[,] as long as the existence of the conspiracy has been properly established." United States v. Salisbury, 662 F.2d 738, 740 (11th Cir. 1981), cert. denied, 457 U.S. 1107, 73 L. Ed. 2d 1316, 102 S. Ct. 2907 (1982), citing United States v. Freeman, 619 F.2d 1112, 1123 (5th Cir. 1980), cert. denied, 450 U.S. 910, 67 L. Ed. 2d 334, 101 S. Ct. 1348 (1981). If the trial court may instruct the jury that it may consider a coconspirator's statements if it finds a conspiracy, the trial court, a fortiori, must be permitted to define what is a conspiracy. No more was done at Buttrum's trial.

Similarly, a charge of aiding and abetting need not be specifically pleaded, since it is not a separate offense, and a defendant indicted for the substantive offense can be convicted as an aider and abettor upon proper demonstration of proof so long as no unfair surprise results. United States v. Kasvin, 757 F.2d 887 (7th Cir. 1985), cert. denied, 474 U.S. 1032, 88 L. Ed. 2d 572, 106 S. Ct. 592 (1985). Clearly the evidence in this case on the facts of the crime eliminated any possibility of surprise to the defense. Finally, the trial court made no charge on felony murder. Accordingly, the petitioner's attack on the jury charge is without merit.

J. The Challenge to the Unified Appeal Procedure.

The Unified Appeal Procedure, O.C.G.A. ? 17-10-36 (UAP), comprises rules promulgated by the Georgia Supreme Court that prescribe certain procedures utilized by the trial court, defense counsel, and the prosecutor prior to, during, and after trial. These procedures are intended to insure that all matters that could be raised by the defendant are raised, or are waived, to prevent and correct error in the proceedings, and to provide proper transcripts of these matters for utilization on the unified appeal of a death sentence. See O.C.G.A. ? 17-10-36; Unified Appeal Procedure, 246 Ga. A-5 (Ga. 1980). Much of the procedure entails holding hearings or conferences among the trial court, the defendant, defense counsel, and the prosecutor, which focus on various rights and matters that could be asserted by the defendant.

The Georgia Supreme Court has upheld this statutory scheme against constitutional attack both on its face, Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 (Ga. 1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657 (1982), and as applied in this case, Buttrum v. State, 249 Ga. 652, 293 S.E.2d 334 (Ga. 1982), cert. denied, 459 U.S. 1156, 74 L. Ed. 2d 1004, 103 S. Ct. 801 (1983).

Buttrum presents the following alleged constitutional deficiencies in the UAP: that it abridged her right to due process by "upsetting the balance of power between the accused and the prosecution," that it abridged her right against self-incrimination, her right to counsel, and her equal protection rights through its selective application only to capital defendants.

Without expressing any opinion on the merit of these issues in a proper case, they are without merit in this case. Buttrum fails to show how any of these alleged violations caused harm that would warrant habeas corpus relief. None of the violations alleged are ones that merit habeas relief without a showing of prejudice from their violation. Few are the constitutional errors that permit such relief without a showing of harm. See, e.g., Payne v. Arkansas, 356 U.S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844 (1958) (introduction of coerced confession); Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963) (complete denial of right to counsel); Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927) (adjudication by biased judge). Since Buttrum's alleged errors are not ones that permit relief without a showing of harm, and since she has alleged no harm, her attack on the UAP is without merit.

III. THE SENTENCING PHASE.

A. The Constitutionality of Executing One Who Was Seventeen at the Time of the Crime.

At the time of the crime, Janice Buttrum was 17 years old. Evidence was submitted that she had the emotional maturity of one 12 or 13. She contends that killing her would be cruel and unusual because of her age and because, in the history of the United States, only 9 females who committed crimes before their 18th birthday have been executed. The last was in 1912. At present, of over 2,000 persons on death row, only two were minor females at the time of the crime.

These facts certainly suggest that the execution of Janice Buttrum would be "unusual." Nevertheless, the Supreme Court has foreclosed this issue by its recent decision, Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989). There the Court held that it does not violate the Eighth Amendment to execute one who was 17 at the time of the crime. Buttrum cites no authority for her contention that her death penalty is unconstitutional because she was emotionally 12 or 13 at the time of the crime. This claim is foreclosed by the Supreme Court's decision that execution of those mentally retarded at the time of the crime is not per se unconstitutional. See Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989).

Buttrum also contends that her death sentence is cruel and unusual because she acted under the domination of her husband, eleven years her senior. Further, her history of repeated neglect and abuse by her parents, continuous childhood ridicule and abuse by peers, and involuntary commitment to state institutions without having committed any crime, she maintains, render her execution cruel and unusual. These facts, however, were properly presented to the jury at the sentencing phase of her trial in mitigation. No case has been cited, and none has been found, that holds that these mitigating factors can override the jury's decision and constitutionally prohibit her death. In accordance with the mandatory authority of the Supreme Court, this issue is without merit.

B. The Admission of a Prior Uncounseled Conviction Without Prior Notice to the Defendant.

At the sentencing phase, after the defense examined its last witness, Janice Buttrum, the prosecution sought introduction of a prior conviction of hers for simple assault. She contends that its admission was unconstitutional, first, because the prosecution never gave prior notice of its intention to use it, as required by O.C.G.A. ? 17-10-2, and, second, because it was a prior uncounseled conviction.

The first basis, that the introduction was in violation of O.C.G.A. ? 17-10-2, is without merit. That statute provides that the prosecution must provide prior notice to the defendant of its intention to introduce any prior conviction of the defendant into evidence. See id. While the respondent contends this is merely a matter of state law, Buttrum maintains that when the state has provided for the imposition of criminal punishment subject to certain procedural protections, the violation of those protections rises above the realm of state law. The defendant has a legitimate expectation that punishment will not be meted out other than in accordance with those protections. She further contends that the Eleventh Circuit has held that O.C.G.A. 17-10-2 "promotes reliability by allowing the defendant time to prepare a defense to the prosecution's evidence." Brooks v. Kemp, 762 F.2d 1383, 1406 n. 36 (11th Cir. 1985) (en banc).

Petitioner's argument is correct as far as it goes. But in this case the Georgia Supreme Court on direct appeal affirmatively held that the admission of the conviction was not in error since it was admitted as character evidence in rebuttal. Buttrum, 249 Ga. at 655-56. The court thus effectively held that the state procedural protection was not violated. This Court must defer to a ruling of the Georgia Supreme Court on an issue of state law. Buttrum's expectation that she would not be punished other than through compliance with that state procedural protection therefore was not frustrated. Because the statute was not violated, Buttrum's due process rights were not violated, and her argument is without merit.

Respondent has not addressed in its briefs the issue that the introduction of the conviction was unconstitutional as an uncounseled conviction. Nevertheless, in this Circuit, it is not improper to introduce at the penalty phase of a criminal trial a prior uncounseled misdemeanor conviction where the defendant was not imprisoned. See Wilson v. Estelle, 625 F.2d 1158, 1159 (5th Cir. 1980), cert. denied 451 U.S. 912, 68 L. Ed. 2d 302, 101 S. Ct. 1985 (1981), citing for comparison Baldasar v. Illinois, 446 U.S. 222, 223-24, 64 L. Ed. 2d 169, 100 S. Ct. 1585 (1980) (plurality opinion) (uncounseled misdemeanor conviction may not be used under an enhanced penalty statute to convert a later misdemeanor into a felony with a prison term); see also United States v. Peagler, 847 F.2d 756, 757-79 (11th Cir. 1988); Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir., Unit A, April 1981). This issue therefore must fail.

C. The Trial Court's Provision of Psychiatric Assistance And the Testimony of Dr. Adams.

Buttrum contends that the trial court violated her constitutional rights when it denied her funds to obtain private psychiatric assistance after the prosecution had obtained its own private psychiatric assistance. She also contends the testimony of the prosecution's psychologist at the sentencing phase of the trial violated her constitutional rights. The Court agrees.

1. Factual Background.

Prior to trial, the defense filed a motion for funds for expert psychiatric assistance. It argued that counsel had no experience in locating and preparing witnesses for a death sentence penalty phase and that the testimony of psychological experts was essential. The defense submitted affidavits from three criminal defense lawyers with experience in capital cases who stated that access to private psychiatric services was indispensable to an effective defense in the case.

The court denied the motion and, instead, offered that Buttrum be evaluated for sanity and competency by doctors at state facilities. The defense responded that these would be inadequate because it needed "an extensive, clinical examination in an atmosphere that is conducive to rendering appropriate medical results." Respondent's Exhibit 14 at 9. Also, the defense argued that such facilities, being state facilities, were probably "State or Prosecution oriented on the questions [at hand]." Id. at 10. Third, the defense expressed its concern about the lack of confidentiality because the psychiatrist-patient privilege did not apply in court-ordered evaluations. Nevertheless, having had the motion denied, defense counsel consented to the competency and sanity evaluations at state facilities. Buttrum was examined by Dr. Bullard at Northwest Regional Hospital in Rome, Georgia, and was evaluated for over two months at Central State Hospital in Millidgeville.

After she was found competent to stand trial, Buttrum unsuccessfully reasserted her motions for a comprehensive private psychiatric evaluation. Shortly before trial, the prosecution announced its intention to present at the penalty phase of the trial the testimony of Dr. Henry Adams, a psychologist from the University of Georgia. The prosecution filed a "Notice of Further Disclosure," and attached a letter from Dr. Adams which revealed Adams's opinion and expected testimony. Respondent's Exhibit 1 at 437-49. Adams's clinical impression was that of anti-social personality disorder, paraphilia, and sexual sadism. He characterized these conditions as including "stimulus hunger," a need of ever increasing stimulation and excitement, which in sexual matters often lead to sadism, "where they become sexually excited by the suffering and pain of others." He concluded: "There is little doubt that she is an extremely dangerous person, and that if she is released, the possibility of her committing similar acts is high." Id.

Upon receiving the notice, the defense immediately moved for a continuance and renewed its motion for funds to retain an expert who was a peer to Dr. Adams. The defense informed the court that the testimony of Dr. Adams could have a devastating effect on the outcome of the trial. It argued that the provision to the state of a specialist outside the state system without providing the defense similar services denied fundamental fairness. The defense explained that it had spoken with the doctors involved in the competency evaluations but maintained that the defense needed and was entitled to the assistance of a private psychiatrist. The court voiced concerns about the expense involved. The defense argued that the prosecution was using public funds to hire its psychologist. The court denied the motion, indicating that the defense had available professionals in the state system.

Psychiatrist Robert L. Sadoff, M.D., also found Adams's clinical impression seriously flawed. He noted that by definition, a sexual sadist or paraphiliac is defined by repeated sexual aberrations. According to DSM III (Diagnostic and Statistical Manual, 3rd Edition - the American Psychiatric Association's authoritative reference source for diagnosis) there must be at least two or more occasions in order to call it repeated. No such repeated tendencies were present in Janice's case. Sadoff noted that the materials reviewed by Adams included "no indication that [Buttrum had] had prior aggressive or hostile sadistic sexual behavior." Id., Affidavit of Robert L. Sadoff at 3. He noted that "[Danny Buttrum's] history is replete with his concern about his sexual needs and his fear of urges of raping women. Janice's history is not replete with sexual problems or concerns of sexual violence." Id. at 4. He noted that DSM III reserves diagnoses of "anti-social personality" for "people who are 18 years of age or older." Id. Sadoff found it "inconceivable" for Adams to make "such a blatant statement about her 'dangerousness' and her probability of committing similar acts of this type." Respondent's Exhibit 34 at 42.

In this federal petition for habeas relief, Buttrum relies principally on two Supreme Court cases, Barefoot v. Estelle, 463 U.S. 880, 77 L. Ed. 2d 1090, 103 S. Ct. 3383 (1983), and Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), for her contention that the trial court's denial of funds for psychological assistance denied her constitutional rights. Specifically, she contends that it was unconstitutional to allow Dr. Adams's opinions of future dangerousness to stand unopposed by a defense psychologist.

In Barefoot, the petitioner claimed that the constitution forbids altogether the admission of psychiatric opinion of one's propensity for future dangerousness at the penalty phase of a capital trial. With the backing of the American Psychiatric Association, which argued that predictions of future dangerousness are wrong two-thirds of the time, he claimed that such opinion is unreliable and prejudicial. The Court rejected a per se exclusion of such testimony:

We are unconvinced, however, at least as of now, that the adversarial process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness, particularly when the convicted felon has the opportunity to present his own side of the case.

Id. at 901. The Court concluded Barefoot never contended "the court refused to provide an expert for petitioner," id. at 899 n. 5., and held that the admission of opinion testimony on future dangerousness does not violate the Constitution.

In Ake, the Court held that indigent defendants have a due process right to competent psychiatric assistance when an adequate showing is made that sanity will be a significant issue at trial. It further held that indigent defendants have the right to psychiatric assistance when the issue of future dangerousness is raised at the sentencing hearing. Where such issue is raised by testimony of a prosecution witness, the defendant must be provided a competent psychiatrist "who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." The Court reasoned:

Psychiatry is not . . . an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis . . . on cure and treatment, and on likelihood of future dangerousness.

Id. at 81.

This Court has upheld the practice in many States of placing before the jury psychiatric testimony on the question of future dangerousness, [citation omitted] at least where the defendant has had access to an expert of his own. [citation omitted.] In so holding, the Court relied, in part, on the assumption that the fact finder would have before it both the views of the prosecutor's psychiatrists and the "opposing views of the defendant's doctors" and would therefore be competent to "uncover, recognize, and take due account of . . . shortcomings" in predictions on this point. [citation omitted.] Without a psychiatrist's assistance, the defendant cannot offer a well-informed expert's opposing view, and thereby loses a significant opportunity to raise in the jurors' minds questions about the State's proof of an aggravating factor. In such a circumstance . . . due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.

Id. at 84 (emphasis added).

Where the defendant raises the defense of insanity, an affirmative defense, the Court held that the defendant must make an adequate showing of need for the psychiatric assistance. See also Moore v. Kemp, 809 F.2d 702, 712 (11th Cir. 1987) (examining the minimum required showing), cert. denied, 481 U.S. 1054, 95 L. Ed. 2d 847, 107 S. Ct. 2192 (1987). The Court required no such showing on the issue of future dangerousness. See Ake, 470 U.S. at 83, 86. The Court merely stated that when the issue is raised by a prosecution witness at sentencing, the defendant has the right to psychiatric assistance.

3. Applicability to Buttrum's Case.

In this case, immediately upon learning of the prosecutor's plan to call Dr. Adams, the defense moved for a continuance and renewed its motion for funds to hire its own psychiatric assistance. The letter of Dr. Adams filed with the prosecution's "Notice of Disclosure" was before the court, and the issue of future dangerousness was raised therein. With the issue of future dangerousness raised, and Buttrum's motion renewed, the right to the assistance protected by Ake was triggered. Ake, 470 U.S. at 83, 86. The court, however, failed to provide the defendant the kind of assistance contemplated by Ake.

a. Private vs. Public Assistance.

Defense counsel argued it needed a private examination from a psychiatrist who could meaningfully assist the defense. It argued that Adams's testimony would be devastating if the defense could not counter Adams's diagnosis with its own doctor's diagnosis.

In Ake, the Court noted:

This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purposes we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right.

Id. at 83.

Here, the trial court denied the motion for funds to hire a private doctor to assist in the defense but ruled that the defense could use the services of the doctors at the state facilities. The petitioner asserts that these sources were inadequate to effectively oppose Dr. Adams for the same reasons she stated those doctors were inadequate initially.

It is true that where a court orders a psychiatric examination to determine the competency of a defendant, the privilege does not apply. See Moody v. State, 244 Ga. 247, 250, 260 S.E.2d 11 (Ga. 1979); Massey v. State, 226 Ga. 703, 704-05, 177 S.E.2d 79 (Ga. 1970), cert. denied, 401 U.S. 964, 28 L. Ed. 2d 248, 91 S. Ct. 984 (1971); see Kimble v. Kimble, 240 Ga. 100, 101, 239 S.E.2d 676 (Ga. 1977). The rationales for the nonapplicability of the privilege are first that the evaluations are not made for treatment, which is required for operation of the privilege, and, second, in such cases, the psychiatrist is a witness for the court, not for the defense.

Both rationales work against Buttrum. Under the first rationale, if the trial court appointed a public doctor to provide the assistance contemplated by Ake, the Georgia privilege would likely apply, because the doctor would be a witness for the defense, not for the court. Under the second rationale, whether a public doctor were appointed or funds granted for a private doctor, the examinations would not be strictly for treatment; therefore, the applicability of the privilege under the second rationale would be the same whether the doctor was public or private. Thus, Buttrum's contention that the psychiatrist-patient privilege would not apply is without merit.

The Court concludes that the services of a psychiatrist from the public sector of the state are not per se inadequate under Ake. A psychiatrist or psychologist who works in the public sector may be utilized, as long as the professional's position is not related to the criminal justice system or the prosecution. The state doctors offered by the trial court were not inadequate merely because they were state doctors.

b. The Ake Violation.

The trial court violated Buttrum's due process right under Ake for a different reason: The court failed to provide the scope of psychiatric assistance contemplated by Ake. Under Ake the defendant is entitled to "a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase." Ake, 470 U.S. at 84. The Court explained that "without a psychiatrist's assistance, the defendant cannot offer a well-informed expert's opposing view, and thereby loses a significant opportunity to raise in the jurors' minds questions about the State's proof of [future dangerousness]." Id. It is essential for the "'defendant's doctors'" to be "competent to 'uncover, recognize, and take due account of . . . short comings' in predictions on this point." Id., quoting Barefoot, 463 U.S. at 899. While Buttrum may go too far in arguing that the Ake psychiatrist must be "part of the defense team," it is clear that Ake contemplates a psychiatrist who will work closely with the defense by conducting an independent examination, testifying if necessary, and preparing for the sentencing phase of the trial. This assistance the trial court failed to provide.

Buttrum also contends that the admission of Adams's testimony violated her Fifth and Sixth Amendment rights under Estelle v. Smith, 451 U.S. 454, 462, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981). Smith provides that the state may not use evidence from a psychiatric interrogation in a capital sentencing proceeding unless the defendant received proper Miranda warnings prior to the examinations. Buttrum contends that she was never given proper Miranda warnings prior to her competency examinations and that the reports of these examinations were used by Adams in his testimony at the sentencing trial. The respondent contends that because the defense requested the competency evaluation, she consented to use of the reports and waived her Fifth and Sixth Amendment rights.

Respondent is incorrect on this point. The court in Battie v. Estelle, 655 F.2d 692 (5th Cir. Sept. 1981), held that a request for competency and sanity evaluations do not permit the examining psychiatrist to testify on the issue of future dangerousness upon which the defendant never consented to being examined. See id. at 702. In open court, prior to being examined, Janice Buttrum explicitly stated that she waived her privilege only as to examinations of competency and sanity, not as to other issues. Respondent's Exhibit 14 at 34-35. Thus, the evaluating psychiatrist could not use results of those evaluations to testify on her future dangerousness.

The issue in this case is slightly more complicated because Dr. Adams and not the examining psychologists used the reports as a basis for his opinion. Adams testified that his opinion was based upon FBI reports, Ms. Buttrum's confessions, reports from Central State Hospital, the autopsy report and some photographs of the victim. Of the reports from Central State, he reviewed Ms. Buttrum's social history, the psychiatric reports, the psychological evaluations, and the ward notes. Respondent's Exhibit 4 at 1817-18.

It is clear from Smith and Battie that the original doctors could not have testified on future dangerousness from their evaluation of Buttrum. While no binding precedent directly on point has been located or cited to the Court, the Court has no difficulty in holding that, just as the examining doctors could not use the evaluations to give an opinion on future dangerousness, a different doctor could not take those same reports and use them for the same purpose. Buttrum's Fifth and Sixth Amendment rights as a result were violated by the admission of Adams's testimony, and a new sentencing hearing on this ground is warranted.

E. The Exclusion of Mitigating Evidence.

Buttrum next contends that the trial court's exclusion of certain mitigating testimony violated her Eighth Amendment right to a fair sentencing hearing. The mitigating testimony would have been that of a social worker, Jesse Collette, about Danny Buttrum's violent history. Buttrum sought to introduce Collette's testimony to counter the State's portrayal of Janice Buttrum as the primary actor in the murder. Collette treated Danny Buttrum in 1977 in a crisis intervention session and determined that he required inpatient psychiatric care because he was becoming schizophrenic.

The proposed testimony was that Danny Buttrum had complained that he was preoccupied with sex and at times felt uncontrollable urges to rape; that he had a drinking problem and nightmares that someone was trying to kill him; that he had homicidal feelings toward his mother, and had attacked her with a butcher knife and scissors.

On hearsay grounds, the prosecution objected to Collette revealing any statements of Danny Buttrum about his prior history. While the objection was based on the hearsay rule, the court sustained it on relevancy grounds. Finding the testimony related to Danny Buttrum and not to Janice, the court ruled it no more relevant than the personal history of any other person on death row.

In Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), the Court held that the sentencer may "not be precluded from considering, as mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id. at 604 (first emphasis by Lockett Court, second by this Court). Moreover, "family background and personal history" have long been treated as mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 117, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982) (O'Connor, J., concurring).

Different degrees of culpability among co-defendants are relevant to the individualized sentencing mandated by the Eighth Amendment. See Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982). In Thompson v. Wainwright, 787 F.2d 1447 (11th Cir. 1986), cert. denied, 481 U.S. 1042, 95 L. Ed. 2d 825, 107 S. Ct. 1986 (1987), the court held counsel's failure to investigate a codefendant's more violent background fell outside the range of reasonably effective assistance. "In a capital case, where a defendant's life may well depend on the extent and nature of his participation, the background of a codefendant could be crucial." Id. at 1450. While the court in Thompson found the error not prejudicial, in the instant case, the question of who was the primary actor was central to the defense theory of the case.

At sentencing Janice Buttrum's defense was twofold. She asserted that her age, lack of prior record, horrendous upbringing, and personal history placed her outside the group of offenders for whom the Georgia death penalty is intended. Second, she argued that Danny Buttrum played the dominant role in the murder, rendering her culpability less than that warranting death. The state portrayed Janice Buttrum as the primary perpetrator.

The trial court's exclusion of Collette's testimony as irrelevant was erroneous. The testimony clearly was relevant. It was relevant as family background information; it concerned her husband. During the two years prior to the crime, her life was intrinsically linked to his. It also was relevant to the defense that Danny Buttrum was the initiator and that Janice acted under his domination and influence. Danny Buttrum was eleven years her senior, divorced, and beat his teenage wife fifteen to twenty times during their two-year marriage. Collette's testimony about his hostility toward women and his violent, abusive personality were highly relevant to show that she was abused by him and that this abuse could have led her to be submissive toward him and his desires. His urges to rape and his attack on his mother directly countered the prosecution's statements that he "never did anything like this before he got with her." This evidence would have helped prove the defendant's theory of the case.

The respondent contends that any error was harmless because the jury had already heard about Danny Buttrum's prior convictions and violent nature and that Collette's testimony would have been merely cumulative. No other evidence, however, revealed Danny Buttrum's prior urges to rape women, his belief that someone was trying to kill him, and his violent attack on his mother. This evidence was unique; it strongly showed, like no other, that Danny Buttrum could have been the dominant actor in this crime. Where the exclusion of evidence in mitigation "may have affected the jury's decision to impose the death sentence," the exclusion is "sufficiently prejudicial" to require a new sentencing hearing. Skipper v. South Carolina, 476 U.S. 1, 8, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986).

F. Prosecutorial Misconduct.

1. The Caldwell Argument.

Janice Buttrum contends that several remarks of the prosecutor during closing argument violated her constitutional rights. She contends the prosecutor violated Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985), by suggesting that the responsibility for the sentencing decision lay elsewhere than with the jury. She contends the prosecutor violated this rule in two ways. First, the prosecutor minimized the jurors' responsibility by telling them that the sole responsibility for the death sentence lay on Janice Buttrum who "signed her own death warrant." He then told them that they were not individuals, but a group that was "merely a cog in the criminal process." To this, defense counsel objected and moved for a mistrial. The court overruled the objection and denied the motion without explanation. The prosecutor also quoted from the Bible: "He is the servant of God to execute his wrath on the wrongdoer." Buttrum contends that these statements by the prosecutor denied her constitutional rights.

The respondent cites to the well-established rule that for prosecutorial comments to warrant relief, they must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986); see also Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974). The respondent points out that just prior to the challenged statements the prosecutor clearly set out the law of Georgia as to imposition of the death penalty, which made clear that the jury had the responsibility to determine whether Janice Buttrum should be put to death.

In Caldwell, the Supreme Court held a death sentence invalid because "it is unconstitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell, 472 U.S. at 328-29. There the jury had been told that their decision was automatically reviewable," thus shifting the sense of responsibility from the jury to the appellate courts. When objection was made to this comment, the court affirmed the propriety of the comment.

In Tucker v. Kemp, 802 F.2d 1293 (11th Cir. 1986) (en banc), cert. denied, 480 U.S. 911, 94 L. Ed. 2d 529, 107 S. Ct. 1359 (1987), the court reiterated that the proper standard for evaluating prosecutorial misconduct is "whether the proceeding at issue was rendered fundamentally unfair by the improper argument." Id. at 1295 (citation omitted). In making this fundamental fairness determination, the court borrowed the prejudice standard from Strickland v. Washington, 466 U.S. 668, 693-94, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984): whether there exists "'a reasonable probability that, in the absence of the offending remarks, the sentencing outcome would have been different.'" Tucker, 802 F.2d at 1295 (citation omitted). The court explained that in that case, the fundamental fairness standard was the proper one, not the Eighth Amendment's "heightened requirement of reliability in a capital case." The latter was employed in Caldwell because there the trial judge approved of the prosecutor's comments, while in Tucker no such approval was voiced. Id.

This statement was modeled on the 19th Century Eberhart quotation, see Eberhart v. State, 47 Ga. 598, 609-10 (1873), which has been condemned by both the Eleventh Circuit and the Georgia Supreme Court. See Drake v. Kemp, 762 F.2d 1449, 1459 (11th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020, 92 L. Ed. 2d 738, 106 S. Ct. 3333 (1986); Wilson v. Kemp, 777 F.2d 621 (11th Cir. 1985), cert. denied, 476 U.S. 1153, 90 L. Ed. 2d 703, 106 S. Ct. 2258 (1986); Potts v. Zant, 734 F.2d 526, 535-36 (11th Cir. 1984), cert. denied, 475 U.S. 1068, 89 L. Ed. 2d 610, 106 S. Ct. 1386 (1986).

The Court in Potts and Drake held use of the quotation in closing to be unconstitutional both because of the content of the quote and because it was attributed to a Justice of the Georgia Supreme Court. In Wilson, however, the court found the quotation improper even though it was attributed not to the Georgia Supreme Court but to a "noted legal scholar in the 1800's [of whom] I think the Court is well aware." The Wilson court held the quotation improper because "it is not a correct representation of the law that controls capital sentencing." Wilson, 777 F.2d at 624. Thus the rule as applied in Wilson is based on "the content of the Eberhart language and does not depend on the source to which the passage was attributed." Id. (emphasis added). The language is improper because its import is that

Look at Demetra; look at the Defendant. She, summarily, slowly, surely murdered and participated in the rape of Demetra Faye Parker without any due process of law. Demetra Faye Parker had no lawyers; Demetra Faye Parker had no public hearing; Demetra Faye Parker had no right to counsel; Demetra Faye Parker had no verdict based upon law.

Tr. at 2167.

The Supreme Court has "reject[ed] the contention that the presence or absence of emotional distress of the victim's family, or the victim's personal characteristics are proper sentencing considerations in a capital case." Booth v. Maryland, 482 U.S. 496, 507, 96 L. Ed. 2d 440, 107 S. Ct. 2529 (1986) (footnote omitted). The references to the personal characteristics of Ms. Parker in this case, however, were sufficiently brief that one "cannot conclude that they injected prejudicial or irrelevant material into the sentencing decision." See Brooks v. Kemp, 762 F.2d 1383, 1409 (11th Cir. 1985) (en Banc), cert. denied, 478 U.S. 1022, 92 L. Ed. 2d 742, 106 S. Ct. 3337 (1986).

The other challenges to the prosecutor's closing arguments have been carefully examined and found to be without merit.

G. The Charge on Aggravating Circumstances.

Petitioner Buttrum contends that the trial court improperly instructed the jury with regard to the four aggravating circumstances asserted by the prosecution in favor of the death penalty. The jury recommended imposition of the death penalty after finding the existence of all four of the asserted factors.

Buttrum first contends the court improperly charged the jury on the aggravating circumstance of O.C.G.A. ? 17-10-30(b) (2). The Court charged the jury as follows:

The first is: that the offense of murder was committed while the Defendant was engaged in the commission of another felony, to-wit: Rape. Georgia Law defines Rape as follows: 'a person commits rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in Rape occurs when there is any penetration of the female sex organ by a male sex organ.

Transcript at 2206-07. Buttrum contends that this charge was improper because it deflected attention away from the petitioner's personal culpability and toward that of Danny Buttrum. The jury was thus permitted to recommend imposition of the death penalty, she maintains, upon vicarious liability theories of conspiracy and aiding and abetting. She contends the court improperly expanded the scope of the (b) (2) circumstance when she did not and could not have raped Demetra Parker.

This contention is without merit. Petitioner has cited no case in support of her argument, and none has been found by the Court. The one case cited by the petitioner, Pickens v. Lockhart, 714 F.2d 1455, 1463-64 (8th Cir. 1983), examined an instruction given at the guilt phase of a trial, and is not relevant to this issue. While it is true that Janice Buttrum could not personally rape Demetra Parker, she could be convicted of rape as an aider and abettor. See O.C.G.A. ? 16-2-20 (a) & (b)(3) (person who intentionally aids or abets in the commission of a crime may be charge with and convicted of commission of the crime). Thus the jury could properly find that she committed murder during the commission of the rape. The jury was in no way precluded from focussing solely on her conduct. While it knew she personally could not commit rape, it was instructed that she nevertheless could be guilty of rape as an aider and abetter. The jury was properly instructed that it could find the (b) (2) circumstance with the underlying predicate crime of aiding and abetting rape. This issue is without merit.

Janice Buttrum next contends that the (b) (7) aggravating factor was improperly explained to the jury. The (b) (7) circumstance provides that a death sentence may be recommended where the murder "was outrageously or wantonly vile, horrible or inhuman in that it involved [a] torture, [b] depravity of mind or [c] an aggravated battery to the victim." O.C.G.A. ? 17-10-30(b) (7). Each of these three bases was presented to the jury.

Buttrum contends that the trial court failed to guide the jury as to what would support a finding of torture. This contention is meritless. The only element of the (b) (7) circumstance that must be defined so as to adequately guide the jury in its deliberations is that of "aggravated battery." See Morgan v. Zant, 582 F. Supp. 1026, 1035 (S.D.Georgia 1984), aff'd in relevant part, rev'd on other grounds, 743 F.2d 775, 781 (11th Cir. 1984). The instruction on torture was adequate, and sufficient evidence clearly existed for the jury to find torture in this case.

Buttrum also contends that while the trial court properly charged the jury on the "aggravated battery" circumstance, the circumstance does not apply because no member of the victim's body was rendered useless prior to death. This contention is also meritless. The proper definition, as given by the court, is in the disjunctive. One basis for the finding is that the murder was committed by "seriously disfiguring the body or member thereof." A glance at the photographs of the victim in this case reveals the existence of this factor and the meritlessness of this ground for relief.

Buttrum correctly contends, however, that the court improperly defined the term "depravity of mind." The trial court used a definition from Black's Law Dictionary which was different from the definition approved by the Georgia Supreme Court in West v. State, 252 Ga. 156, 313 S.E.2d 67 (Ga. 1984). There the court presented an example of a proper instruction of "depravity of mind as a reflection of an utterly corrupt, perverted or immoral state of mind." Id. at 161. The court there held that while no instruction on depravity of mind is required, if the court undertakes to give such instruction, "it should do so correctly." Id. at 159. Here, the instruction broadened the scope of the aggravating circumstance. The jury was instructed it could find the (b) (7) circumstance merely on a finding of "deficiency in moral sense and rectitude" rather than a finding of "utterly corrupt, perverted or immoral." The instruction more broadly defined depravity of mind and required a much lower threshold than the proper definition. The instruction therefore was improper.

The improper instruction, nevertheless, does not require reversal. The instructions on the other aggravating circumstances were proper, and petitioner has not shown that the evidence was insufficient to find those circumstances. Because of the existence of other valid and legally appropriate circumstances to support the death penalty, relief is not warranted where one basis is found invalid. See Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983).

H. The Charge on Mitigating Evidence.

Buttrum contends that the court carefully explained each of the aggravating circumstances claimed by the state; but on mitigating circumstances, the court, near the end of the charge, in a perfunctory manner, gave a brief and "wholly unilluminating" charge on mitigating circumstances. She contends that the charge whole emphasized the importance of aggravating circumstances and minimized the importance of mitigating circumstances.

The standard to be applied upon a challenge to the adequacy of an instruction on mitigating circumstances is whether any reasonable juror could have failed to understand the challenged instructions and the role of mitigation. High v. Kemp, 819 F.2d 988, 991 (11th Cir. 1987), cert. denied, 487 U.S. 1233, 108 S. Ct. 2896, 101 L. Ed. 2d 930 (1988); citing, inter alia, Peek v. Kemp, 784 F.2d 1479 (11th Cir. 1986) (en banc), cert. denied, 479 U.S. 939, 93 L. Ed. 2d 371, 107 S. Ct. 421 (1986). "The ultimate question is whether there is a reasonable possibility that the jury understood the instructions in an unconstitutional manner." Peeks, 784 F.2d at 1479.

In Spivey v. Zant, 661 F.2d 464 (5th Cir. Unit B 1981), cert. denied, 458 U.S. 1111, 73 L. Ed. 2d 1374, 102 S. Ct. 3495 (1982), the court held that failure to mention and define mitigating circumstances in a capital case violates the constitution. The court noted that the jury must be explicitly instructed about mitigating circumstances and established the following standard:

So long as the instruction clearly communicates that the law recognized the existence of circumstances which do not justify or excuse the offense, but which, in fairness or mercy, may be considered as extenuating or reducing the degree of moral culpability and punishment . . ., this portion of the constitutional requirement is satisfied.

Id. at 471 n. 8. In Peek, the court the court approved of a sentencing instruction that had been given in Tucker v. Zant, 724 F.2d 882, 891 (11th Cir.), vacated on other grounds, 724 F.2d 898 (11th Cir. 1984), reinstated in relevant part sub nom. Tucker v. Kemp, 762 F.2d 1480, 1482 (11th Cir 1985) (en banc), vacated on other grounds, 474 U.S. 1001, 88 L. Ed. 2d 452, 106 S. Ct. 517 (1985), reinstated, 802 F.2d 1293 (11th Cir. 1986), cert. denied, 481 U.S. 1073, 96 L. Ed. 2d 364, 107 S. Ct. 2472 (1987). The Peek court held that the instruction given in Tucker was "manifestly desirable." Id. at 1490 n. 12. The court paraphrased the instruction as follows: "[A] mitigating circumstance is a factor which, while not constituting a legal excuse or justification for the offense, could be considered in fairness and mercy as extenuating or reducing the degree of moral culpability or blameworthiness." Id. This paraphrase of the Tucker instruction, approved by the court, is nearly identical to the instruction given in Buttrum's case. Buttrum's contention that the instruction in her case was inadequate is meritless.

Buttrum also contends that an instruction similar to one proposed by the defense should have been given. This instruction outlined a number of specific mitigating circumstances about which the defense had submitted evidence. Petitioner's argument however, is foreclosed by Tucker :

The victim

Dematra Faye Parker, 19.