Filed: February 24, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-4017

(CA-93-2361-3-6BD)

Ronnie Howard,

Petitioner - Appellant,

versus

Michael W. Moore, etc., et al,

Respondents - Appellees.

ORDER

The Court amends its opinion filed December 9, 1997, as

follows:

On page 2, first paragraph of opinion, line 9 -- the reference

to § 106 is corrected to read "§ 10 4."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RONNIE HOWARD,

Petitioner-Appellant,

v.

MICHAEL W. MOORE, Director of

No. 95-4017

South Carolina Department of

Corrections; CHARLES M. CONDON,

Attorney General of the State of

South Carolina,

Respondents-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Charles E. Simons, Jr., Senior District Judge.

(CA-93-2361-3-6BD)

Argued: April 8, 1997

Decided: December 9, 1997

Before WILKINSON, Chief Judge, RUSSELL, WIDENER, HALL,

MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, LUTTIG,

WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the majority

opinion, in which Chief Judge Wilkinson and Judges Russell, Widener, Wilkins, Niemeyer, Hamilton, and Luttig joined. Judge Michael

wrote a dissenting opinion, in which Judges Hall, Murnaghan, and

Motz joined.

_________________________________________________________________
COUNSEL

ARGUED: Sheri Lynn Johnson, CORNELL LAW SCHOOL, Ithaca,

New York, for Appellant. Donald John Zelenka, Assistant Deputy

Attorney General, Columbia, South Carolina, for Appellees. ON

BRIEF: H.W. Pat Paschal, Jr., Greenville, South Carolina; Barney O.

Smith, Jr., Greenville, South Carolina, for Appellant. Charles Molony

Condon, Attorney General, John W. McIntosh, Deputy Attorney General, W. Edgar Salter, III, Senior Assistant Attorney General, Lauri J.

Soles, Assistant Attorney General, Columbia, South Carolina, for

Appellees.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

In June 1986, Ronnie Howard was convicted of capital murder by

a South Carolina jury and sentenced to death. After exhausting his

state appeals, he petitioned the federal district court for habeas corpus

relief. The district court denied his petition and Howard appeals, raising numerous constitutional challenges to the state court proceedings.

After oral argument before a panel of this Court, we voted to hear

Howard's appeal en banc to address the important procedural and

substantive issues raised. These issues included whether the more deferential habeas standards of review set forth in § 104 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), signed

into law on April 24, 1996, and codified at 28 U.S.C.A. § 2254(d)

(West Supp. 1997), apply to this appeal; whether the prosecutor's

peremptory challenges violated Batson v. Kentucky, 476 U.S. 79

(1986); whether questioning by Howard's federal probation officer

after Howard's invocation of his Fifth Amendment right to counsel

tainted his subsequent confessions; and whether the admission of

Howard's redacted confessions erroneously excluded exculpatory and

mitigating evidence from the jury's consideration.

The en banc court heard oral argument on April 8, 1997. On June

23, 1997, the United States Supreme Court issued its opinion in Lindh

v. Murphy, 117 S. Ct. 2059 (1997), in which it held that the new

 2
habeas standards of review, codified at 28 U.S.C.A. § 2254(d) (West

Supp. 1997), do not apply to habeas corpus petitions pending in federal court prior to the enactment of the AEDPA. Howard filed his

habeas petition in the district court prior to April 26, 1996, the effective date of the AEDPA. We, therefore, review Howard's claims

under pre-AEDPA law.1

Applying the proper standard of review to the substantive issues on

appeal, we conclude that (1) no Batson violation occurred; (2) Howard's oral confessions to FBI Special Agent Brendan Battle and Lieutenant William Hitchins of the Greenville County Sheriff's

Department were not "tainted fruits" of an improper custodial interrogation by Howard's federal probation officer, Haywood Polk; (3) the

redactions of his confessions were not violative of his Fifth and

Eighth Amendment rights; and (4) the other assignments of error

raised by Howard have no merit. Accordingly, we affirm the district

court's denial of habeas relief.

I.

The primary facts of the tragedy underlying this appeal are undisputed. Chinh Le disappeared on her way home from work in Greenville, South Carolina, on the evening of August 29, 1985. On

September 12, 1985, Howard was arrested on unrelated robbery

charges in Asheville, North Carolina, and detained in the Buncombe

County Jail. After Howard was appointed counsel and invoked his

_________________________________________________________________

1 Although the State contends that it became eligible for the procedures

outlined in § 107 of the AEDPA as of June 18, 1996, with the enactment

of the Effective Death Penalty Act of 1996, 1996 S.C. Acts 448, we need

not decide whether those procedures satisfy the statutory opt-in requirements of § 107 because, whatever the merits of South Carolina's appointment system, § 107 is inapplicable to this appeal since Howard's state

habeas petition was finally denied by the South Carolina Supreme Court

before June 18, 1996. See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th

Cir.) (concluding that Virginia was ineligible for the benefits of § 107 of

the AEDPA, regardless of the merits of Virginia's current appointment

of counsel procedures, because petitioner's Virginia habeas petition had

been finally denied by the Virginia Supreme Court prior to the passage

of Virginia's appointment of counsel procedures), cert. denied, 117 S.

Ct. 503 (1996).

 3
Fifth Amendment right to remain silent, Howard met with his federal

probation officer, Haywood Polk, on October 3. During this meeting,

Howard orally confessed to his involvement in numerous armed robberies and in two murders, including the murder of Le. At this meeting, Howard also asked to speak to the FBI about his crimes in the

hopes of negotiating a plea to lessen his punishment. As a result,

Howard met with Agent Battle on October 8, and, after signing a

waiver of rights form, orally confessed to, among other things, Le's

murder.2 Agent Battle immediately notified Lieutenant Hitchins of the

Greenville County Sheriff's Department of Howard's connection to

the Greenville murder. Lieutenant Hitchins contacted Howard and the

two met on October 16 at which time Howard, after orally waiving

his rights under Miranda v. Arizona, 384 U.S. 436 (1966), again

orally confessed to Le's murder.

In each confession, Howard revealed that he and Rickey Weldon

had formulated a plan to steal the automobile of a lone female driver.

On August 29, the two men spotted Le and followed her down a dirt

road where they "bumped" the rear of her vehicle. When Le exited her

automobile to inspect the damage, Howard forced her back into her

automobile at gunpoint. Howard then drove away in Le's vehicle, and

Weldon followed in the other car. Howard subsequently stopped in an

isolated area where the two men beat Le and eventually murdered her

by placing a piece of plastic over her head until she suffocated to

death. They again drove around until they found another isolated area

where they dumped Le's body into a clump of kudzu vines.3 Before

_________________________________________________________________

2 In addition to the murder of Le, Howard confessed to Polk and later

to Agent Battle that he had murdered Mary Duncan in Oconee County,

South Carolina. During the Duncan trial, Howard's confession to Agent

Battle was admitted into evidence over Howard's objections. On direct

appeal, Howard challenged the admissibility of the confession to Agent

Battle on numerous grounds, including an argument that the confession

was the "tainted fruit" of a custodial interrogation conducted by Polk in

violation of Miranda. The South Carolina Supreme Court affirmed Howard's conviction and life sentence, concluding that Polk's questioning of

Howard did not constitute a "custodial interrogation" triggering the safeguards of Miranda. See State v. Howard, 374 S.E.2d 284, 287-88 (S.C.

1988). This issue was not raised by Howard in the direct appeal of the

murder of Le.

3 Kudzu is a green leafy vine of Japanese origin found in the southeastern part of the United States. It is used primarily for forage and erosion

control. In August, kudzu provides a thick vegetative cover over many

fields and wooded areas in South Carolina.

 4
disposing of her body, however, Howard and Weldon removed all her

clothing and washed her body, first with soda and then in a mud puddle, to remove any fingerprints. Howard and Weldon then abandoned

Le's automobile in Columbia, South Carolina. Howard, however,

retained possession of some of Le's personal belongings and traveled

to Charlotte, North Carolina, where he disposed of the items in various garbage dumpsters. As a result of Howard's confession, South

Carolina authorities recovered Le's body and her automobile several

weeks after her death.

Howard and Weldon were tried jointly for Le's murder. The State

introduced Howard's confessions into evidence through the testimony

of Agent Battle and Lieutenant Hitchins, both of whom had taken

meticulous handwritten notes of their conversations with Howard.

Polk did not testify. In compliance with Bruton v. United States, 391

U.S. 123 (1968), the trial court directed Agent Battle and Lieutenant

Hitchins not to reveal those portions of Howard's confessions inculpating his codefendant Weldon during direct or cross examination. On

June 5, 1986, a jury found both defendants guilty of murder, kidnapping, armed robbery, and conspiracy. Howard and Weldon were each

sentenced to death for the murder, plus twenty-five years for the

armed robbery and five years for the conspiracy.

On direct appeal, the South Carolina Supreme Court upheld Howard's conviction and his death sentence. See State v. Howard, 369

S.E.2d 132 (S.C. 1988), cert. denied, 490 U.S. 1113 (1989).4 The state

_________________________________________________________________

4 On direct appeal, Howard challenged his conviction, claiming that the

trial court erroneously (1) refused to quash the jury panel pursuant to

Batson v. Kentucky, 476 U.S. 79 (1986); (2) refused to sever his trial

from that of his codefendant Weldon; (3) admitted Weldon's confession

in violation of Howard's right to confrontation; (4) submitted the case to

the jury when the State failed to present any proof of the corpus deliciti

aside from his confession; (5) admitted his confession when it was

obtained in violation of his right to counsel under both the Fifth and

Sixth Amendments; and (6) refused to provide Howard with two attorneys in compliance with S.C. Code Ann. § 16-3-26(b) (Supp. 1986).

Howard alleged that in the penalty phase the trial court erroneously (1)

refused to admit Howard's federal parole records as mitigating evidence;

(2) admitted portions of Howard's statements in which he confessed to

 5
court also affirmed Weldon's conviction, but reversed his death sentence and remanded for resentencing.5 The United States Supreme

Court denied Howard's petition for certiorari, see 490 U.S. 1113

(1989), and his petition for rehearing, see 492 U.S. 932 (1989). Howard then sought post-conviction relief (PCR) in state court.6 After con-

_________________________________________________________________

approximately 70 armed robberies and another murder; (3) admitted affidavits regarding Howard's participation in additional armed robberies;

(4) refused to declare a mistrial following the prosecutor's comments

concerning Howard's failure to testify; (5) admitted evidence regarding

the victim's background; (6) conducted the trial past midnight; and (7)

failed to admit Howard's complete confessions into evidence in mitigation of punishment.

5 On direct appeal, the South Carolina Supreme Court concluded that

Weldon was unduly prejudiced during the penalty phase of the trial by

the exclusion of his complete confession. The trial court had redacted

portions of Weldon's confession in compliance with Bruton v. United

States, 391 U.S. 123, 133-34 & n.10 (1968) (the introduction of a jointly

tried, non-testifying codefendant's statement violates the Sixth Amendment Confrontation Clause if the statement contains incriminating statements concerning a defendant). The State Supreme Court held that the

unredacted version of Weldon's confession supported his position that he

acted under Howard's domination, a statutory mitigating circumstance

charged to the jury. Because the State Supreme Court determined that

this information was erroneously excluded from the jury's consideration,

it vacated Weldon's death sentence and remanded for resentencing. The

State Supreme Court rejected Howard's argument that he was prejudiced

by the exclusion of portions of his confessions, concluding that his unredacted confessions, unlike Weldon's, contained no mitigating evidence.

6 In the state PCR court, Howard argued that (1) he received ineffective

assistance of counsel; (2) the trial court erroneously failed to admit Howard's complete confessions; (3) the trial court erroneously failed to

appoint experienced counsel; (4) the trial court erroneously admitted

Howard's unconstitutionally obtained confessions; (5) the trial court

erroneously failed to provide a meaningful psychiatric evaluation; (6) the

trial court erroneously denied Howard funds for a jury expert; (7) his trial

counsel had a conflict of interest; (8) the trial court erroneously admitted

Howard's guilty plea to the unrelated robbery charge in North Carolina,

because it was involuntary; (9) the prosecutor failed to disclose favorable

mitigation evidence prior to trial in accordance with Brady v. Maryland,

373 U.S. 83 (1963); (10) the trial court erroneously excluded the testi-

 6
ducting an evidentiary hearing, the state PCR court denied Howard

relief on September 3, 1991. The South Carolina Supreme Court

affirmed the denial of relief, and the United States Supreme Court

again denied certiorari, see 508 U.S. 917 (1993).

On September 17, 1993, Howard filed this federal habeas action in

the United States District Court for the District of South Carolina. The

petition was referred to a magistrate judge, who recommended denying Howard's motion for an evidentiary hearing and his petition for

habeas corpus relief. The district court adopted the findings of the

magistrate judge and granted the State's motion for summary judgment on June 16, 1995. Howard now appeals the district court's

denial of habeas corpus relief.

II.

Howard raises several issues in his petition to this Court. He argues

that his conviction should be reversed because (1) the prosecutor

improperly used peremptory strikes against six of the seven black

potential jurors in violation of Batson v. Kentucky, 476 U.S. 79

(1986); (2) the trial court erroneously admitted portions of Howard's

confessions made to Agent Battle and Lieutenant Hitchins; and (3) the

trial court erroneously excluded from the jury's consideration portions

of Howard's confessions which contained exculpatory evidence.

Howard also challenges his death sentence on the grounds that (1) the

trial court erroneously excluded mitigating evidence contained in

Howard's confessions in violation of Lockett v. Ohio, 438 U.S. 586

(1978), and Skipper v. South Carolina, 476 U.S. 1 (1986); (2) the trial

court erroneously failed to reinstruct the jury on the elements of

_________________________________________________________________

mony of his federal probation officer, Haywood Polk; (11) the trial court

erroneously instructed the jury so as to allow a finding of guilt below the

degree of proof required; (12) there was improper ex parte contact

between the prosecutor's office and the jury; (13) the trial court arbitrarily excluded women with children from the venire; (14) the trial court

erroneously instructed the jury regarding aggravating and mitigating circumstances and failed to reinstruct the elements of lesser included

offenses; and (15) the trial court erroneously admitted evidence regarding the victim's background.

 7
involuntary manslaughter when it repeated its instructions on murder;

(3) Howard's counsel was ineffective in failing to present certain mitigating evidence during the penalty phase of the trial; (4) the prosecutor improperly commented on Howard's failure to testify during

closing arguments; and (5) there was improper ex parte contact

between the prosecutor's office and the jury.

When considering a habeas petition, we review de novo the state

court's determinations of questions of law, see Savino v. Murray, 82

F.3d 593, 598 (4th Cir.), cert. denied, 117 S. Ct. 1 (1996), and of

mixed questions of law and fact, see Miller v. Fenton, 474 U.S. 104

(1985). However, the state court's factual findings underlying those

determinations are presumed to be correct and binding, as long as

they were made after a full, fair, and adequate hearing on the merits.

See 28 U.S.C.A. § 2254(d) (West 1994) (pre-AEDPA); see also

Sumner v. Mata, 449 U.S. 539, 546-47 (1981). The habeas petitioner

bears the burden of establishing by convincing evidence that a state

court's factual determinations were erroneous. See 28 U.S.C.A.

§ 2254(d) (pre-AEDPA); see also Sumner, 449 U.S. at 550. We now

address each of Howard's claims in turn.

A.

First, Howard, who is black, argues that the prosecutor's use of

peremptory strikes to exclude black venirepersons from the jury violated Batson v. Kentucky, 476 U.S. 79 (1986). We conclude, however,

that Howard has failed to rebut by clear and convincing evidence the

trial court's finding, affirmed by the South Carolina Supreme Court,

that the challenges were not exercised for racially discriminatory reasons. See Hernandez v. New York, 500 U.S. 352, 364 (1991) (plurality

opinion) (holding that the intent to discriminate under Batson is "a

pure issue of fact, subject to review under a deferential standard"); see

also id. at 369 (holding that the findings of the trial court on discriminatory intent in Batson challenge are reviewed for clear error);

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 534 (1979) (holding

that the finding of intent to discriminate is a factual determination

subject to the "clearly erroneous" standard of review); Jones v.

Plaster, 57 F.3d 417, 421 (4th Cir. 1995) ("A finding by the [trial]

court concerning whether a peremptory challenge was exercised for

 8
a racially discriminatory reason is given great deference by this court;

we review that finding only for clear error."). Accordingly, we affirm.

After voir dire, forty-two persons were qualified as jurors, only

seven of whom were black. The prosecutor struck six of the seven

black prospective jurors and four of the thirty-five white prospective

jurors, resulting in a jury of eleven white jurors and one black juror.

Howard moved to quash the panel pursuant to Batson. The trial court

found, and we agree, that the prosecutor's striking of six out of the

seven black prospective jurors constituted a prima facie case of

discrimination.7

Once the defendant establishes a prima facie case of discrimination, the burden shifts to the prosecutor to articulate race-neutral

explanations for the challenges. See Batson, 476 U.S. at 97. The prosecutor's "explanation need not be `persuasive, or even plausible,' as

long as it is neutral." Matthews v. Evatt, 105 F.3d 907, 917 (4th Cir.)

(quoting Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995)), cert. denied,

118 S. Ct. 102 (1997); see also Jones, 57 F.3d at 420 ("To satisfy this

burden, the party need offer only a legitimate reason for exercising

the strike, i.e., one that does not deny equal protection; the reason

need not be worthy of belief or related to the issues to be tried or to

the prospective juror's ability to provide acceptable jury service."). If

the prosecutor satisfies this requirement, the burden shifts back to the

defendant to prove that the explanation given is a pretext for discrimination. See Batson, 476 U.S. at 98. The ultimate burden always rests

with the opponent of the challenge to prove "purposeful discrimination." See Hernandez, 500 U.S. at 360 ("`"Discriminatory purpose"

. . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part "because of," not merely "in spite

_________________________________________________________________

7 To establish a prima facie violation of racial discrimination in the use

of peremptory challenges, a defendant must demonstrate that (1) "he is

a member of a cognizable racial group"; (2) "that the prosecutor has

exercised peremptory challenges to remove the venire members of the

defendant's race"; and (3) "that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to

exclude the veniremen from the petit jury on account of their race."

Batson v. Kentucky, 476 U.S. 79, 96 (1986).

 9
of," its adverse effects upon an identifiable group.'" (quoting

Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979) (internal footnote and citation omitted))); see also Jones, 57 F.3d at 420-21 ("[T]he

party challenging the selection process [must] prove[ ] that intentional

discrimination was a substantial or motivating factor in the decision

to exercise the strike."). The trial court must then determine whether

the challenge was exercised for a racially discriminatory reason. The

trial court's resolution of this issue rests largely on credibility determinations, and therefore, we give its findings great deference. See

Jones, 57 F.3d at 421 ("[T]he [trial] court is especially well-suited to

resolve challenges to peremptory strikes of jurors because it has

observed with its own eyes the very act in dispute.").

Howard first challenges the prosecutor's use of peremptory strikes

against black prospective jurors Edward Wood and Charles Copeland.

During the Batson hearing, the prosecutor explained that he struck

Wood "because he said he leans towards life every time. He was more

pro-life. He said he was not really for the death penalty." (J.A. at 536-

37.)8 The prosecutor further stated that Copeland was struck "because

he said . . . from a religious standpoint he would find it hard to vote

for the death penalty. He said he does not believe another man should

take another man's life. He also said it would have to be [a] very

extreme case for him to vote for the death penalty." (J.A. at 537.)

Although Howard admits that these reasons are race-neutral, he

argues that they were pretextual because the prosecutor failed to strike

white jurors expressing similar views. While this circumstance may

give rise to an inference of pretext, see Ford v. Norris, 67 F.3d 162,

169 (8th Cir. 1995), "Batson is not violated whenever two veniremen

of different races provide the same responses and one is excused and

the other is not," Matthews, 105 F.3d at 918. Both the prosecutor and

defense counsel must be allowed to make credibility determinations

when exercising peremptory challenges. For example, counsel may

consider "the `characteristics of the other prospective jurors against

whom peremptory challenges might be exercised; to reevaluate the

mix of jurors . . . and to take into account tone, demeanor, facial

expression, emphasis -- all those factors that make the words uttered

_________________________________________________________________

8 "J.A." indicates a reference to the Joint Appendix. "App." indicates a

reference to the State Supreme Court Appendix.

 10
by the prospective juror convincing or not.'" Id. (quoting Burks v.

Borg, 27 F.3d 1424, 1427 (9th Cir. 1994), cert. denied, 513 U.S. 1095

(1995)).

Moreover, the responses of the white jurors cited by Howard were

sufficiently dissimilar to those provided by the black jurors to show

that the prosecutor did not intentionally discriminate in the selection

of the jury. Although white jurors Richard Ashmore, Sharon Lunny,

and Floyd Rohm were ambivalent about the death penalty, Wood's

and Copeland's anti-death penalty sentiments were much stronger. As

a result, mindful of the deference we must give the trial court, we

affirm its finding that the prosecutor's reasons for striking Wood and

Copeland were not pretextual.

Howard also challenges the striking of Antonio Golden and

Amanda Fuller, arguing that the combination of factors relied upon

by the prosecutor to strike them was not supported by the record. The

prosecutor explained that he struck Golden because she had an "erratic" work history, her husband was "unemployed," and he was

attempting to reach the next juror whom he believed was a stronger

advocate of the death penalty. The prosecutor stated that he challenged Fuller due to her "unstable work history," her young age, and

her inability to "commit generally for or generally against the death

penalty." Employment status is a legitimate race-neutral factor that

may be relied upon by a prosecutor for challenging a potential juror.

See United States v. Day, 949 F.2d 973, 979 (8th Cir. 1991). Likewise, age is an acceptable race-neutral factor. See United States v.

Jackson, 983 F.2d 757, 762 (7th Cir. 1993). Again, we cannot say that

the trial court erred in concluding that Howard failed to prove that the

given reasons for striking these jurors were pretextual.

Finally, Howard argues that the prosecutor's comprehensive questioning of Gladys McElrath and his mischaracterization of Jeffrey

Dunbar's testimony demonstrate his discriminatory intent. We disagree. McElrath's statements that she did not believe in capital punishment and "would go for life" legitimately prompted extensive

questioning by the prosecutor, and the prosecutor's observation that

Dunbar had twice stated he could not vote for the death penalty was

accurate. Moreover, Dunbar's unique status as a recent high school

graduate was a race-neutral reason for striking him. See Jackson, 983

 11
F.2d at 762 (holding that age is an acceptable race-neutral reason for

striking a prospective juror). In sum, we hold that the trial court did

not err in concluding that the prosecutor's striking of the challenged

black venirepersons was not racially motivated.

B.

Next, Howard challenges the admission of his two confessions,

which were admitted in redacted form in accordance with Bruton v.

United States, 391 U.S. 123 (1968). First, he contends that the confessions should have been suppressed because they were the tainted

fruits of a custodial interrogation initiated by his probation officer in

violation of Edwards v. Arizona, 451 U.S. 477 (1981). Second, Howard argues that if the confessions were legally obtained, the failure to

admit each confession in its entirety was erroneous because the exclusions distorted the meaning of the confessions, created a materially

false impression of Howard's relative culpability, and excluded substantially exculpatory evidence. Third, he claims that the unredacted

version of his confessions contained statements admissible as mitigating evidence in the penalty phase of the trial under Lockett v. Ohio,

438 U.S. 586 (1978).

1.

Howard argues that his confessions to FBI Agent Battle and Greenville County Lieutenant Hitchins should have been suppressed

because they were the "tainted fruits" of a custodial interrogation initiated by his federal probation officer, Haywood Polk, in violation of

Edwards v. Arizona, 451 U.S. 477 (1981). Whether Howard's confessions are "tainted fruits" is a question of law reviewed de novo. See

United States v. Elie, 111 F.3d 1135, 1140 (4th Cir. 1997). After a

thorough review of the record, we conclude that the confessions were

properly admitted.

a.

On September 12, 1985, two weeks after Le's disappearance,

police in Asheville, North Carolina, arrested Howard on robbery

charges. On September 18, Attorney Gary Cash was appointed to rep-

 12
resent Howard on the North Carolina robbery charges. On October 2,

Asheville Detective Lee Warren and two South Carolina detectives

met with Howard and Cash to discuss a series of South Carolina robberies under investigation. Howard, following Cash's advice, declined

to make any statement. Cash then attempted to negotiate an immunity

agreement with South Carolina authorities in exchange for a statement from Howard. An agreement could not be reached, however,

and Cash notified the North Carolina and South Carolina authorities

that Howard would not make any statements.

On October 3, 1995, Howard met with Polk in Asheville, where

Howard remained in custody. At that time, Howard confessed to

numerous armed robberies and to two South Carolina murders,

including the murder of Le. Hoping to obtain lesser sentences for his

crimes, Howard asked Polk to arrange for him to speak to an FBI

agent about the crimes. Polk contacted Agent Battle, who met with

Howard on October 7 and October 8. Howard signed standard

Miranda waiver of rights forms on both October 7 and October 8

prior to speaking with Agent Battle. In addition, on October 7, Howard signed an addendum to the waiver of rights form specifically

acknowledging his desire to speak with the FBI without the benefit

of counsel.9 Having waived his right to counsel, on October 8 Howard

confessed in great detail to the Le murder and approximately seventy

other armed robberies.

Agent Battle immediately notified Lieutenant Hitchins of Howard's involvement in Le's murder. Lieutenant Hitchins met with Howard on October 16. Lieutenant Hitchins advised Howard of his

Miranda rights and requested that he sign a waiver of rights form.

_________________________________________________________________

9 Before Howard gave his oral statement to Agent Battle, he signed a

paragraph, handwritten by Agent Battle, which stated:

I, Ronnie Howard, have requested through my federal probation

officer, Mr. Haywood Polk, to be interviewed by the F.B.I. about

my involvement in criminal activities. I do not want the lawyer

present who is representing me on Asheville armed robbery

charges and understand that the F.B.I. agents will ask me no

questions about those charges. Signed Ronnie Howard.

(App. at 867.)

 13
Howard stated that "he preferred not to" sign the form, and gave an

oral statement to Lieutenant Hitchins confessing to the Le murder.

During their meetings with Howard, both Agent Battle and Lieutenant

Hitchins took notes that were later transcribed for their respective

reports. After reviewing these reports, the trial court ordered both witnesses to refrain from discussing Weldon's part in Le's murder,

except as it was corroborated in Weldon's own confession.

b.

The trial court conducted a hearing pursuant to Jackson v. Denno,

378 U.S. 368 (1964), prior to the admission of the statements during

both the guilt and penalty phases of Howard's trial. After considering

the testimony of Howard, Agent Battle, and Lieutenant Hitchins, the

trial court denied Howard's motion to suppress the confessions. The

trial court found that

the State has proven beyond a reasonable doubt and met its

burden that the Defendant was first advised of his constitutional rights, his Miranda rights, that he fully understood the

warnings and knowingly elected to waive his rights, that he

did indeed make a statement, and that the statement was

freely and voluntarily made under the totality of the circumstances, and also that all constitutional Miranda rights were

accorded him and complied with.

(J.A. at 551-52.) The South Carolina Supreme Court affirmed. During

his state PCR hearing, Howard again argued that his confessions

should have been suppressed because they were not voluntarily given

and that they were the "tainted fruits" of a custodial interrogation by

Polk made in violation of Miranda. The state PCR court rejected

Howard's argument, finding that Howard's "statements were freely

and voluntarily given and that none were taken in violation of [his]

Miranda and Edwards rights." (J.A. at 839.) None of the state courts

reviewing Howard's appeal have specifically found whether Polk or

Howard initiated their meeting, or whether their meeting constituted

a custodial interrogation.10

_________________________________________________________________

10 As previously discussed at n.2, supra, in Howard's direct appeal of

his conviction for the murder of Mary Duncan, Howard claimed that his

 14
The federal magistrate judge dismissed Howard's allegation that

Polk was acting on behalf of the FBI when he interviewed Howard

and that the interview constituted a custodial interrogation. The magistrate judge noted that Howard's allegations flatly contradicted his

earlier position in state court that his counsel was ineffective for not

calling Polk, Howard's friend as well as his probation officer, as a

favorable witness for Howard during the trial. The district court similarly concluded that because "[n]othing in the record demonstrates

that Polk was acting outside his role as probation officer in approaching petitioner," there was no "custodial interrogation" and therefore,

no Edwards violation.11 We review the district court's legal conclusions de novo. See Savino v. Murray, 82 F.3d 593, 598 (4th Cir.

1996).

c.

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court

outlined "concrete constitutional guidelines for law enforcement

agencies and courts to follow." Id. at 442. For example, "Miranda . . .

_________________________________________________________________

waiver of his right to counsel during his meeting with Polk was ineffective because Polk violated his Fifth Amendment right against selfincrimination when he questioned Howard at the Buncombe County Jail

on October 3, 1985. The South Carolina Supreme Court rejected Howard's claim, concluding that Polk did not "interrogate" Howard during his

visit to the jail. While Howard steadfastly challenged the admissibility of

the confessions to Agent Battle and Lieutenant Hitchins throughout his

trial for the murder of Le and on direct appeal on various grounds, he did

not argue that the confessions were "tainted fruit" directly resulting from

Polk's "custodial interrogation" until his state habeas proceeding. Therefore, Howard's Edwards claim is arguably procedurally defaulted by virtue of his failure to raise it on direct appeal. The State, however, has

waived the procedural default issue by failing to argue it before this

Court. See United States ex rel. Bonner v. DeRobertis, 798 F.2d 1062,

1066 (7th Cir. 1986).

11 Although Howard argues that the district court implicitly found that

Polk initiated the meeting with him, we conclude that neither the magistrate judge nor the district court made a specific finding on that issue. It

appears that both assumed, without deciding, that Polk initiated the meeting, but then rejected Howard's claim by finding that the meeting did not

constitute a "police-initiated custodial interrogation."

 15
declared that an accused has a Fifth and Fourteenth Amendment right

to have counsel present during custodial interrogation," Edwards, 451

U.S. at 482, and that if the accused asserts his right to counsel, "`the

interrogation must cease until an attorney is present,'" id. at 485

(quoting Miranda, 384 U.S. at 474). The Edwards rule, as enunciated

by the Supreme Court, provides

that when an accused has invoked his right to have counsel

present during custodial interrogation, a valid waiver of that

right cannot be established by showing only that he

responded to further police-initiated custodial interrogation

even if he has been advised of his rights. . . .[Rather,] an

accused, . . . having expressed his desire to deal with the

police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the

police.

Id. at 484-85; see also Minnick v. Mississippi, 498 U.S. 146, 153

(1990) (stating "that when counsel is requested, interrogation must

cease, and officials may not reinitiate interrogation without counsel

present, whether or not the accused has consulted with his attorney");

Savino, 82 F.3d at 599-600 (holding that "any confession obtained by

interrogation reinitiated by police in the absence of counsel is inadmissible" unless "the defendant reinitiates discussion with police and

then confesses").

Polk, to whom Howard initially confessed, did not testify at Howard's trial. The only confessions which Howard seeks to exclude are

those made to Agent Battle and Lieutenant Hitchins. Every reviewing

court has found that Howard initiated contact with Agent Battle

through his probation officer Polk, and that he voluntarily made selfincriminating statements to both Agent Battle and Lieutenant

Hitchins. See Howard v. State, No. 90-CP-23-3829 (S.C. 1991) (state

post-conviction relief court finding that Howard "requested to talk to

the F.B.I. about certain crimes"); Howard v. Evatt, C.A. No. 3:93-

2361 (D.S.C. 1993) (district court finding that Howard "told Polk that

he wanted to talk with the FBI" and that Howard's subsequent "October 7 and 8 statements were made voluntarily after initiation of com-

 16
munication by petitioner"). Even more telling, Howard concedes that

"[t]here is ample support in the record for the factual finding that" he

"initiated contact with [the] FBI." (Petitioner's Reply Br. at 1.) In

fact, he "does not contest that finding" on appeal. (Id.)

Based upon the aforementioned findings and Howard's concession,

it is not surprising that Howard does not contend that his confessions

to Agent Battle and Lieutenant Hitchins were made in violation of

Edwards.12 Rather, Howard's sole argument regarding the admissibil-

_________________________________________________________________

12 The dissent inexplicably criticizes the majority for failing to focus

upon whether Howard's confessions to Agent Battle and Lieutenant

Hitchins were made in violation of Edwards. See post at 44. The dissent,

however, blatantly disregards the state court's finding that Howard initiated contact with the FBI. In fact, Howard concedes that the state court's

finding is supported by ample evidence. (Petitioner's Reply Br. at 1.)

Howard's concession is undoubtedly based in no small part upon a statement he signed prior to his confessions. The statement provides that:

I, Ronnie Howard, have requested through my federal probation

officer, Mr. Haywood Polk, to be interviewed by the F.B.I. about

my involvement in criminal activities. I do not want the lawyer

present who is representing me on Asheville armed robbery

charges and understand that the F.B.I. Agents will ask me no

questions about those charges.

(App. at 867). Because Howard admits that he initiated contact with the

FBI, there was simply nothing upon which to "focus."

In addition, the dissent's assertion that "Polk convinced Howard to talk

to the FBI in an attempt to get a deal," see post at 41, is simply

unfounded. See Howard v. State, No. 90-CP-23-3829 (S.C. 1991) (state

post-conviction relief court noting that Howard's trial counsel, upon

investigation of the admissibility of the confessions, learned "that no

promises either oral or written were made to [Howard], that [Howard]

confessed to the authorities in the hope that he would get some type of

concession or recommendation and in the hope that they would not seek

the death penalty, and that for reasons only known to [Howard] he felt

compelled to reveal information"). A review of the record reveals, and

Howard does not dispute, that he initiated contact with the FBI, thereby

waiving his rights under Edwards. See Oregon v. Bradshaw, 462 U.S.

1039, 1047 (1983) (concluding that "questions which evinced a willingness and a desire for a generalized discussion about[an] investigation"

constitute initiation under the Edwards rule).

 17
ity of the confessions to Agent Battle and Lieutenant Hitchins is that

Polk's meeting with Howard, in which Howard initially confessed

constituted a "police-initiated custodial interrogation" in violation of

Edwards, i.e., a poisonous tree, and that the resulting confessions to

Agent Battle and Lieutenant Hitchins were inadmissible "tainted

fruit." Assuming, without deciding, that Polk's actions were on behalf

of law enforcement and that his questioning of Howard while he was

in custody constituted a "custodial interrogation" under Miranda,13 we

nevertheless reject Howard's claim.

_________________________________________________________________

13 As we previously noted, once a defendant invokes his Fifth Amendment right to counsel, any subsequent police-initiated custodial interrogation would violate Edwards. This circuit has not addressed whether

custodial questioning by a probation officer constitutes a police-initiated

interrogation under Edwards v. Arizona, 451 U.S. 477 (1981), or

Miranda v. Arizona, 384 U.S. 436 (1966). The district court held that

Polk's questioning of Howard did not violate Edwards because Polk was

acting simply in his capacity as a probation officer when he spoke with

Howard and not as an agent of the FBI. We need not decide whether

Polk was acting as a law enforcement officer or whether he interrogated

Howard because even if Howard's statements to Polk were obtained in

violation of Edwards, we conclude that the statements made to Agent

Battle and Lieutenant Hitchins were admissible.

Nevertheless, we address the dissent's apparent resolution of both of

these issues. According to the dissent, whether an Edwards violation

occurred turns upon who initiated the discussion between Polk and Howard. The dissent, therefore, necessarily finds, without any analysis or

explanation, both that Polk was acting as an agent of the police and that

the conversation between Polk and Howard constituted a "custodial interrogation" for Edwards purposes. Neither of these conclusions, however,

is self-evident.

First, it is far from clear that Polk, a federal probation officer, was acting as an agent of the police when he met with Howard, his probationer.

Unfortunately, the Supreme Court has not directly addressed this issue.

In Minnesota v. Murphy, 384 U.S. 436 (1984), the Court rejected a probationer's claim that incriminating statements he made to his probation

officer during a routine interview should have been suppressed because

the officer failed to advise him of his Miranda rights. The Court concluded that the interview did not constitute a custodial interrogation giving rise to the protections of Miranda because the interview was not

inherently coercive. Id. at 430-33. It is unclear from the Court's analysis,

however, whether it considered the probation officer, whose admitted

 18
Howard invoked his Fifth Amendment right to counsel prior to his

interview with Polk, thereby triggering the protections of Edwards.

_________________________________________________________________

primary purpose for arranging the interview was to obtain incriminating

statements from her probationer, to be acting as an agent of the police.

The circuit courts, however, have uniformly held that probation officers

fulfilling routine duties are not agents of the police, but agents of the

court, and therefore their probationers may not invoke the protections of

Miranda. See Williams v. Chrans, 945 F.2d 926, 951 (7th Cir. 1991)

(concluding that a probation officer conducting a custodial postconviction presentence interview is acting as "`a neutral information

gatherer for the court rather than [as an agent of] the police or prosecution, the parties most likely to coerce the defendant into relinquishing his

Fifth Amendment rights'" (quoting United States v. Cortes, 922 F.2d

123, 127 (2d Cir. 1990)); United States v. Rogers, 921 F.2d 975, 979

(10th Cir. 1990) (concluding that "[t]he purpose of the presentence report

. . . is neither prosecutorial nor punitive . . .[as t]he probation officer acts

as an agent of the court for the purpose of gathering and classifying

information"); United States v. Jackson, 886 F.2d 838, 842 n.4 (7th Cir.

1989) ("[W]e do not believe that a federal probation officer acts on

behalf of the prosecution.") Investigating a probationer's alleged noncompliance with the terms of his probation is certainly a regular duty of

a probation officer. Therefore, absent evidence that Polk stepped outside

his neutral role as a federal probation officer, we question the dissent's

assumption that Polk acted as an agent of the police.

Second, even assuming that Polk was acting on behalf of the police

when he met with Howard, an argument rejected by both the federal

magistrate judge, (J.A. at 213), and the district court, (J.A. at 301-02), the

dissent offers no factual support for its conclusion that Polk "interrogated" Howard. See Rhode Island v. Innis, 446 U.S. 291, 299 (1980)

(recognizing that not "all statements obtained by the police after a person

has been taken into custody are to be considered the product of interrogation"). In fact, as discussed at n.2 & n.10, supra, the South Carolina

Supreme Court examined the same events in Howard's direct appeal of

his conviction for the Duncan murder and found that Polk did not "interrogate" Howard. See State v. Howard, 374 S.E.2d 284, 288 (S.C. 1988).

Again, we do not attempt to decide these issues because they are not necessary to our resolution of the ultimate question of whether Howard's

confessions to Agent Battle and Lieutenant Hitchins are admissible. We

only point out these issues in response to the dissent's decidedly incomplete discussion of them.

 19
See Edwards, 451 U.S. at 485 (holding that an accused who has

invoked the right to counsel is not subject to further interrogation "unless the accused himself initiates further communication, exchanges,

or conversations with the police"). Howard claims that Polk initiated

the contact, approaching Howard in the hopes of extracting a confession from him. The State contends, however, that it was Howard who

initiated contact with Polk, thereby waiving his right to counsel, when

he asked Detective Warren of the Asheville Police Department to call

Polk.

During the suppression hearing at trial, Howard never refuted the

State's contention that he asked Detective Warren to allow him to

speak with Polk.14 Howard testified that "it was either a week and a

half or maybe two weeks before I talked to my parole officer, [Haywood Polk]. He was called up by [Detective] Lee Warren, I think. I'm

not sure about that. . . . And [Detective Warren] called Heywood [sic]

up or I think that was what happened, and Heywood[sic] came up,

and I talked to him." (App. at 1091.) Howard also testified that he and

Polk enjoyed "a real close relationship" in which he "considered

[Polk] not as a parole officer, but as my friend, and a person who I

could talk to at different times about things." (App. at 1088.) Howard

also consistently testified that at the October 3, 1985, meeting with

Polk in which he agreed to speak with the FBI, "I just told him. I

think I opened up to him about everything, and I tried to be as honest

as possible. . . ." (App. at 1092.) During Howard's state PCR hearing,

Polk testified that he was contacted by Detective Warren "on instructions from Ronnie Howard." (J.A. at 758.) The State also points to the

_________________________________________________________________

14 In his Reply Brief, Howard contends for the first time that his rights

under Edwards were initially violated by Detective Warren, prior to

Howard's meeting with Polk. This assertion is barred by his failure to

raise it earlier. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-12 (1992)

(holding that when a state has given petitioner a full and fair hearing on

a claim and he has failed to develop material facts to support it, he is not

entitled to develop further facts in a federal habeas evidentiary hearing

unless he demonstrates either cause for the failure and prejudice resulting

therefrom or a fundamental miscarriage of justice). Moreover, an examination of Howard's allegations convinces us that even if there was an

Edwards violation by Detective Warren, it would not bar the admission

of Howard's confessions to Agent Battle and Lieutenant Hitchins for the

reasons outlined in Part II.B.1.c. of the majority opinion.

 20
testimony of FBI Agent Drucilla Kurrle, who was present with Agent

Battle when Howard was questioned. At trial, Agent Kurrle stated that

the interviews with Howard began after "he contacted Mr. Polk and

. . . requested to speak to an FBI agent." (App. at 1361.) In fact, at

Howard's state PCR hearing, Howard's attorney attempted to use the

fact that Howard contacted Polk to show that Howard wanted to

cooperate with law enforcement.

We conclude, however, that it is immaterial whether Polk's interrogation of Howard constituted an Edwards violation (because either

Howard initiated contact with Polk and then invoked his right to

counsel, triggering his rights under Edwards anew, or Polk initiated

contact with Howard after he invoked his right to counsel) because

Howard's subsequent confessions to Agent Battle and Lieutenant

Hitchins are not inadmissible "tainted fruits."15 The "tainted fruits"

doctrine is simply inapplicable absent a constitutional violation. See

Oregon v. Elstad, 470 U.S. 298, 308 (1985) (concluding that the "fruit

of the poisonous tree" doctrine did not apply to a suspect's second

statement, made while in custody as a result of unwarned first statement obtained in violation of Miranda, because there was no actual

infringement of the suspect's constitutional rights); Michigan v.

Tucker, 417 U.S. 433, 445-46 & n.19 (1974) (refusing to apply

"tainted fruits" doctrine to the testimony of a witness whose identity

was discovered as a result of a statement obtained in violation of

Miranda); United States v. Elie, 111 F.3d 1135, 1141 (4th Cir. 1997)

(rejecting "application of the `fruit of the poisonous tree' doctrine to

physical evidence discovered as the result of a statement obtained in

violation of Miranda"); Correll v. Thompson, 63 F.3d 1279, 1289-91

(4th Cir. 1995) (refusing to apply "tainted fruits" doctrine to a third

confession obtained as a result of two earlier confessions obtained in

_________________________________________________________________

15 The dissent claims that we have "disembowel[ed] Edwards by dismissing [whether Howard initiated the discussion with his probation officer] as immaterial." See post at 42-43. Of course, we have done no such

thing. Whether Howard initiated the discussion with his probation officer

is material to whether his confession to Polk violated Edwards. Whether

Howard's confession to Polk violated Edwards, however, is immaterial

to the ultimate question of whether his subsequent confessions, which

were not made in violation of Edwards, must be suppressed as fruit of

the poisonous tree.

 21
violation of Edwards), cert. denied, 116 S. Ct. 688 (1996). An

Edwards violation, like a Miranda violation, is not itself a constitutional violation.16 In Arizona v. Roberson, 486 U.S. 675 (1988), the

Supreme Court explained that

the prophylactic protections that the Miranda warnings provide to counteract the "inherently compelling pressures" of

custodial interrogation and to "permit a full opportunity to

exercise the privilege against self-incrimination," are implemented by the application of the Edwards corollary that if

a suspect believes that he is not capable of undergoing such

questioning without advice of counsel, then it is presumed

that any subsequent waiver that has come at the authorities'

behest, and not at the suspect's own instigation, is itself the

product of the "inherently compelling pressures" and not the

purely voluntary choice of the suspect."

Id. at 681 (citations and quotations omitted)); see also id. at 682 ("The

Edwards rule . . . serves the purpose of providing `clear and unequivocal' guidelines to the law enforcement profession."); id. at 688 (Kennedy, J., dissenting) (noting that "the rule of Edwards is our rule, not

a constitutional command"); Correll, 63 F.3d at 1290 (concluding that

"[a] breach of the rule established in Edwards is [ ] a technical violation of Miranda, not a Fifth Amendment violation."). Accordingly,

even if we were to accept Howard's argument that his statement to

Polk, including his request to speak to the FBI, was obtained in violation of Edwards, the "fruit of the poisonous tree" doctrine would not

bar admission of Howard's confessions to Agent Battle and Lieuten-

_________________________________________________________________

16 The dissent claims that our analysis "misses the whole point of

Edwards," because "[t]he Edwards rule operates even absent a constitutional violation." See post at 43. Unfortunately, the dissent's criticism

misses the whole point of this case. We do not dispute that even a voluntary confession made in violation of Edwards must be suppressed. As a

result, Howard's confession to Polk, albeit voluntary, was inadmissible

if obtained in violation of Edwards. The question presented in this case,

however, is whether a statement made in violation of Edwards taints a

subsequent confession not made in violation of Edwards. It is the tainted

fruits doctrine, not the Edwards rule, that does not operate absent a constitutional violation.

 22
ant Hitchins. Only if Howard could show that his statement to Polk

was obtained in violation of his Fifth Amendment right against compulsory self-incrimination and that insufficient time had passed to dissipate the taint, might the "fruit of the poisonous tree" doctrine bar

admission of Howard's subsequent confessions to Agent Battle and

Lieutenant Hitchins. Cf. Correll, 63 F.3d at 1290 (holding that, under

Elstad, the first question that must be answered when determining

whether a subsequent confession is tainted by an earlier confession "is

whether the initial confession[ was] obtained in violation of [the

defendant's] Fifth Amendment rights -- i.e., whether [it was] involuntary -- or whether the confession[ was] voluntary but obtained in

technical violation of Miranda").

The Fifth Amendment guarantees that "[n]o person . . . shall be

compelled in any criminal case to be a witness against himself . . .

without due process of law." U.S. Const. Amend. V. Whether a statement is voluntary within the meaning of the Fifth Amendment is a

mixed question of law and fact subject to de novo review. See Miller

v. Fenton, 474 U.S. 104, 111-12 (1985); Fields v. Murray, 49 F.3d

1024, 1030 (4th Cir.) (en banc), cert. denied, 116 S. Ct. 224 (1995).

The Supreme Court has held "that coercive police activity is a necessary predicate to the finding that a [statement] is not `voluntary'

within the meaning of the Due Process Clause." Colorado v.

Connelly, 479 U.S. 157, 167 (1986); see also Elie, 111 F.3d at 1143.

Whether Howard's statement to Polk was the result of coercive conduct or activity can be answered only by reviewing the totality of the

circumstances under which the statement was made. See United States

v. Braxton, 112 F.3d 777, 781 (4th Cir.) (en banc), cert. denied, 118

S. Ct. 192 (1997).

Howard admitted that Polk did not promise him anything and specifically denied that Polk "coerced" him in return for his cooperation.

(App. at 1105.) In addition, Howard previously had numerous prior

encounters with federal, state, and local law enforcement authorities.

See United States v. Watson, 423 U.S. 411, 424-25 & n.14 (1976)

(noting that the absence of any indication that the defendant was a

"newcomer to the law" is an important factor in determining whether

consent was voluntary). He was a high school graduate and had

served in the military. Based on the totality of the circumstances, we

conclude that Howard's statements to Polk were not"involuntary"

 23
within the meaning of the Fifth Amendment, and therefore, the "fruit

of the poisonous tree" doctrine is inapplicable to Howard's subsequent confessions to Agent Battle and Lieutenant Hitchins. See

Correll, 63 F.3d at 1291 (concluding that a third confession "could

not have been tainted" by initial confessions because although the initial confessions were obtained in violation of Edwards, they were not

obtained in violation of the Fifth Amendment).17 Accordingly, we

affirm the trial court's denial of Howard's motion to suppress them.

2.

Howard next contends that when the trial court decided to admit

the confessions in the guilt phase of the trial, it violated his Fifth

Amendment right not to testify and the rule of completeness by failing to admit the statements in their entirety.18 Based on the same rea-

_________________________________________________________________

17 The dissent suggests that "Edwards is now all but gone in the five

states of the Fourth Circuit." See post at 39. It is safe to say, however,

that the reports of Edwards' demise have been greatly exaggerated. Notwithstanding today's decision, direct evidence obtained in violation of

Edwards is still inadmissible. As a result, had Howard not initiated contact with the authorities, his subsequent confessions would have been

inadmissible. What the dissent inexplicably ignores, however, is that

Howard initiated the discussions with Agent Battle and Lieutenant

Hitchins, thereby waiving his previously invoked rights. Therefore, as

clear Supreme Court and Fourth Circuit precedents dictate, these subsequent confessions were admissible absent a constitutional violation. See

Oregon v. Elstad, 470 U.S. 298 (1985); Michigan v. Tucker, 417 U.S.

433 (1974); United States v. Elie, 111 F.3d 1135 (4th Cir. 1997); Correll

v. Thompson, 63 F.3d 1279 (4th Cir. 1996).

18 In United States v. Wenzel, 311 F.2d 164 (4th Cir. 1962), we held

that ordinarily a defendant's entire statement should be admitted under

the rule of completeness:

When a confession is admissible, the whole of what the accused

said upon the subject at the time of making the confession is

admissible and should be taken together; and if the prosecution

fails to prove the whole statement, the accused is entitled to put

in evidence all that was said to and by him at the time which

bears upon the subject of the controversy including any exculpatory or self-serving declarations connected therewith.

 24
soning, he also challenges the trial court's limitation on his crossexaminations of Agent Battle and Lieutenant Hitchins which prevented them from relating to the jury any information regarding the

culpability of Weldon unless Weldon's own confession corroborated

it. We reject this argument because the trial court excluded only portions of Howard's confession that inculpated Weldon and did not

exculpate Howard.

Due to Bruton considerations, the trial court directed Agent Battle

and Lieutenant Hitchins to omit from their testimony any part of

Howard's confessions that inculpated Weldon, his codefendant. See

Bruton v. United States, 391 U.S. 123, 133-34 & n.10 (1968) (holding

that the introduction of a jointly tried, non-testifying codefendant's

statement violates the Sixth Amendment Confrontation Clause if the

statement contains incriminating evidence concerning a defendant).19

_________________________________________________________________

Id. at 168 (citations omitted). The rule enunciated in Wenzel, partially

codified as Rule 106 of the Federal Rules of Evidence, is simply an evidentiary rule, not a rule of constitutional law. See United States v.

Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996), cert. denied, 118 S. Ct. 341

(1997); Fed. R. Evid. 106 ("When a writing or recorded statement or part

thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded

statement which ought in fairness to be considered contemporaneously

with it."). State court trial rulings regarding the admission and exclusion

of evidence are cognizable in federal habeas corpus review only to the

extent that they violate specific constitutional provisions or are so egregious as to render the entire trial fundamentally unfair, thereby violating

the Due Process Clause of the Fourteenth Amendment. See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991); Spencer v. Murray, 5 F.3d 758, 762

(4th Cir. 1993). First, we note that Howard's confessions, although transcribed by Agent Battle and Lieutenant Hitchins from their notes of their

respective reports, were neither written by Howard, signed by Howard,

tape-recorded, nor introduced into evidence in written form. Therefore,

we question whether the rule of completeness even applies to this case.

See Wilkerson, 84 F.3d at 696 (holding that the rule of completeness "applies only to writings or recorded statements, not to conversations"). Furthermore, even if the rule were to apply, we would conclude as a matter

of law that the exclusion of portions of Howard's confessions did not rise

to the level of a constitutional violation.

19 Howard and Weldon were tried jointly over their motions to sever.

Because Howard chose not to testify in the guilt or penalty phase of the

 25
Howard's complete confessions, with their incriminating references to

Weldon, could have been used only if he and Weldon had been tried

separately or if Howard had been subject to cross-examination by

Weldon. The Supreme Court has clearly stated that separate trials are

not required under these circumstances:

It would impair both the efficiency and the fairness of the

criminal justice system to require, in all these cases of joint

crimes where incriminating statements exist, that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to

repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who

have the advantage of knowing the prosecution's case

beforehand. . . . Even apart from these tactical considerations, joint trials generally serve the interests of justice by

avoiding the scandal and inequity of inconsistent verdicts.

Richardson v. Marsh, 481 U.S. 200, 210 (1987). The Court also has

rejected the alternative of foregoing the use of a codefendant's confession because "[t]hat price also is too high, since confessions `are

more than merely "desirable"; they are essential to society's compelling interest in finding, convicting, and punishing those who violate

the law.'" Id. at 210 (quoting Moran v. Burbine, 475 U.S. 412, 426

(1986)). Therefore, when analyzing its alternatives, the trial court is

called upon to balance the rights of the defendant, the rights of the

codefendant, society's interest in convicting only the guilty, and the

efficient administration of justice. After comparing the original statements with the redactions, we agree with the district court that the

excluded statements were not exculpatory and that their exclusion did

not materially alter the meaning of the confessions. Thus, we find no

constitutional error and affirm.

_________________________________________________________________

trial, his confessions were admissible as statements against interest. His

statements inculpated Weldon, however, and so although the statements

were admissible against Howard, their admission in the absence of Howard's availability for cross-examination violated Weldon's rights under

the Confrontation Clause of the Sixth Amendment. The trial court

resolved the conflict by admitting Howard's statements, only after

redacting the portions implicating Weldon.

 26
Agent Battle took handwritten notes of Howard's October 8, 1985,

confession. He later memorialized these notes in a typed report as follows:

 HOWARD noticed that there was "a lot of plastic in the

car, like a seat cover or whatever." HOWARD "had the

bright idea of using that to put her out - not kill her, just put

her out."

 HOWARD placed the plastic over the female's head.

RICK [Weldon] hit her several times in the stomach. When

HOWARD "took the bag off, she was still, like maybe she

was `playing possum'." HOWARD thought that he felt a

pulse. RICK then "reapplied pressure." HOWARD"thought

she was knocked out" but added, "I don't think I really

cared, to be honest." He did not realize that she was dead

until he was driving around looking for a place to leave her.

At that time he touched her body, which felt cold, and realized that she was dead. HOWARD insisted "I'm being honest - I don't know if he killed her or I killed her."

(J.A. at 559.) Over Howard's objection, the trial court instructed

Agent Battle not to testify as to the portions of the confession inculpating Weldon, unless the inculpatory statement had been corroborated by Weldon's own statement. Agent Battle then testified:

Q. What did Mr. Howard do next?

A. Well, he said he noticed that there was a lot of plastic

in the car, like seatcovers or something like that, and

that he had the idea of using those plastic--that plastic

material to--to put her out. He said not to kill her, just

to put her out.

Q. What did Mr. Howard do at that point?

A. Well, he placed the plastic over the woman's head.

Q. According to Howard what did Rick do at that time?

 27
A. He told me that Rick hit the woman in the stomach several times.

Q. Did Mr. Howard eventually take the plastic off the victim's head?

A. Yes. He said he took the bag off her head or the plastic

off her head and that the woman was still. He thought

then that she was, and he used the words, I have them

in quote [sic], "playing possum." He thought at that

time that he had felt a pulse, that she was still alive. He

said he thought that she was knocked out, but he said,

"I don't think I really cared to be honest."

(J.A. at 626-27.) This modified version omits Howard's statement that

Weldon "reapplied pressure."

Lieutenant Hitchins also drafted a typed report of Howard's October 16, 1985, confession, based on his handwritten notes taken during

the interview. His report stated:

[Howard] grabbed the girl and pushed her into her car and

got in behind the wheel, and Rickey was driving their car.

He stated that he drove to a place that had no houses around,

and parked on the side of the road where he put a plastic bag

over her head, and was going to make her pass out. He

stated that he was holding the bag until she quit fighting and

was going to turn [her] loose but Rickey grabbed the bag

and held it. He stated that he got in the back seat and he

grabbed and pulled her over the seat into the back while

Rickey was helping him get her over the seat. They started

to drive and that is when he noticed she was not breathing,

and they stopped.

(J.A. at 553.) At trial, however, Lieutenant Hitchins, following the

trial court's redaction instructions, testified as follows:

Q. What did they do when they got to the area where there

were no houses around? Did they stop or keep going or

--

 28
A. They stopped the vehicles, and at that point in time Mr.

Howard placed the plastic bag over the victim's head.

Q. Did he ever release the plastic bag from over the victim's head?

A. Yes, sir. He said that he held the bag over her head

until she quit fighting, and then he released the bag.

Q. What did they do or what did Mr. Howard say he did

with the victim after he--after she quit fighting and he

took the plastic bag off her head?

A. Said that he got into the back seat of the victim's vehicle, started pulling the victim into the back seat, and at

that time Mr. Weldon helped him put the victim in the

back seat of her vehicle.

(J.A. at 573.) The redaction excludes Howard's statement that he

"was going to turn [the bag] loose but Rickey grabbed the bag and

held it."

Howard argues that the unredacted portions of both statements

show that Howard lacked the intent to kill because he released the

plastic when he thought that Le was still alive. Moreover, Howard

claims that the jury could have concluded from his original statements

that Weldon, not Howard, actually killed Le. Even accepting Howard's argument that the jury could have concluded from his complete

confessions that Howard did not intend to, and in fact did not, kill Le,

this assertion would not in any way diminish Howard's culpability for

Le's murder. As the trial court charged the jury under South Carolina

law:

When one does an act in the presence of and with the assistance of another, the act is considered to have been done by

both, and where two or more acting with a common design

or intent are present at the commission of the crime, it matters not by whose immediate agency the crime is committed,

all are guilty. The hand of one is the hand of all.

 29
(J.A. at 656.) In other words, the State had to prove only that Howard

and Weldon, working together and with malice aforethought, were

jointly responsible for Le's death. See S.C. Code Ann. § 16-3-10

(Law Co-op. 1985) (defining murder as "the killing of any person

with malice aforethought, either express or implied"). Therefore,

because South Carolina does not require that a defendant have specific intent to commit murder, nothing in Howard's original confessions was exculpatory for Fifth Amendment purposes and in no way

diminished Howard's legal blameworthiness for the murder. See State

v. Foust, 479 S.E.2d 50, 51 (S.C. 1996) (holding that wrongful intent

to injure another may give rise to finding of malice to support verdict

of murder) (citing State v. Johnson, 352 S.E.2d 480, 481 (S.C. 1987)).

Nor did the redaction distort the meaning of the confessions. Accordingly, we affirm the admission of the testimony concerning Howard's

confessions during the guilt phase of the trial.

3.

Although we have determined that the redactions did not violate

Howard's Fifth Amendment right not to testify, a different issue

arises when we consider whether the exclusion of the redacted statements during the sentencing phase violated Howard's Eighth Amendment rights. A defendant may present all relevant mitigating

circumstances to the sentencer for its consideration of whether to

impose the death penalty. See Lockett v. Ohio, 438 U.S. 586, 604

(1978). In Skipper v. South Carolina, 476 U.S. 1 (1986), the Supreme

Court held that the Eighth and Fourteenth Amendments require

admission of relevant mitigating evidence in the penalty phase of a

defendant's capital trial. Skipper, 476 U.S. at 4. The Court stated that

"in capital cases the `"sentencer . . . [may] not be precluded from considering, as a 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. (quoting

Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett, 438

U.S. at 604)). In other words, "the sentencer may not refuse to consider or be precluded from considering `any relevant mitigating evidence.'" Id. (quoting Eddings, 455 U.S. at 114); see also Hitchcock

v. Dugger, 481 U.S. 393, 399 (1987) (a jury in a capital case must

consider not only statutory mitigating evidence, but also nonstatutory

factors as well).

 30
Howard argues that the omitted portions of his confessions implicate Weldon as Le's actual murderer, and therefore, although these

omitted portions may not be exculpatory under South Carolina law,

they nonetheless constitute mitigating evidence that Howard should

have been allowed to present to the jury during his cross-examination

of Agent Battle and Lieutenant Hitchins in the penalty phase of his

trial. Whether the trial court's rulings limited the jury's consideration

of mitigating evidence is a mixed question of law and fact. See

Kennedy v. Herring, 54 F.3d 678, 682 (11th Cir. 1995) (whether a

trial court's instructions to the jury improperly limited its consideration of mitigating evidence is a mixed question of law and fact). As

such, we defer to the state court's findings of fact, but review its legal

conclusions de novo. After reviewing the record, we find ourselves in

complete agreement with both the South Carolina Supreme Court and

the district court. Both courts rejected Howard's claim, finding that

nothing in his confessions could be construed as mitigating. See State

v. Howard, 369 S.E.2d 132, 138 (S.C. 1988) (finding that "Howard's

unredacted confession contained no mitigating evidence," and therefore, that there was "no prejudice from its exclusion at the penalty

phase of the trial"); (J.A. at 299 (district court opinion) (concluding

that "there is nothing truly exculpatory or mitigating about the unredacted statement[s]").) Therefore, we conclude that Howard's Eighth

Amendment rights were not violated.

In his confession to Agent Battle, Howard stated that he placed the

plastic over Le's head and held her until "she was still." He thought

Le was just "playing possum" and claimed that he "felt a pulse." He

said that after "Rick [Weldon] then reapplied pressure," he continued

to think that "she was knocked out." (J.A. at 559.) Only later, when

Howard and Weldon were looking for a place to leave Le's body, did

Howard realize that Le was dead. Howard then conceded "I'm being

honest -- I don't know if he killed her or I killed her." (J.A. at 599.)

When considered as a whole, Howard's unredacted confession in no

way suggests that he believed Weldon killed Le. Rather, he admitted

that even after Weldon's assault, Howard thought that Le was still

alive. Moreover, although Howard said that he thought she was only

unconscious when he released his grip and Weldon grabbed her, he

plainly conceded that he did not know whether he or Weldon actually

killed Le.

 31
Similarly, in the unredacted version of Howard's confession to

Lieutenant Hitchins, Howard stated that "he put a plastic bag over

[Le's] head, and was going to make her pass out." Again, he claimed

that he held "the bag until she quit fighting and was going to turn

loose but Rickey [Weldon] grabbed the bag and held it." (J.A. at 553.)

Howard did not tell either Agent Battle or Lieutenant Hitchins that

Weldon actually killed Le. Rather, he simply stated that it was not

until they drove away, after both men had assaulted her, that he realized she was not breathing. (J.A. at 553.)

Howard extracts two single phrases from the nine typed pages of

notes transcribed by Agent Battle and Lieutenant Hitchins and construes them as a statement that Weldon, not Howard, actually killed

Le. To accept this characterization of the record requires a tortured

and speculative interpretation of two phrases lifted out of Howard's

confessions and complete disregard of the remainder of the statements

and the context of the phrases within them. In determining whether

the extracted phrases constitute "relevant mitigating evidence," we

cannot ignore the rest of Howard's account. When both statements are

reviewed in context, the alleged assertion of innocence is completely

negated by Howard's admission that he did not know whether he or

Weldon killed Le and that he thought she was "just knocked out,"

even after Weldon assaulted her. Moreover, Howard admitted to

Agent Battle that he drove the car that "bumped" Le; that he brandished the .357 magnum handgun and forced Le back into her automobile; that he had the "bright idea" to cover Le's face with plastic

to "put her out"; that he put the plastic over Le's face; that he stated,

"Maybe it was because of the black beauties,20 but her death didn't

really bother me at all"; that he and Weldon removed all of Le's

clothes, washed her body with soda to remove any fingerprints, and

left her body in a deserted area among kudzu vines after again washing it in a mud puddle; and that he returned to Charlotte to dispose

of Le's personal effects. (J.A. 558-61.) In sum, we agree with the

South Carolina Supreme Court that Howard's confession, rather than

providing any mitigating evidence, clearly demonstrates that Howard

"actually was the leader and decision-maker." Howard, 369 S.E.2d at

138.21 We are firmly convinced that no reasonable juror could have

_________________________________________________________________

20 "Black beauties" are the street name for a type of amphetamine drug.

21 The South Carolina Supreme Court's finding that Howard's confessions indicated that "Howard played the major role" in Le's murder was

 32
found that the unredacted portions of Howard's confession were evidence that Weldon, rather than Howard, actually killed Le.22 Nothing

in the redactions altered Howard's personal culpability for Le's death.

Moreover, nothing in the redactions could be construed as mitigating

evidence in Howard's favor.

And finally, in response to Howard's argument that it was important for the jury to know who actually killed Le, a reading of Howard's unredacted confession readily reveals Howard's own

uncertainty as to whether he or Weldon committed the final act of

murder. (J.A. at 559 ("Howard insisted `I'm being honest - I don't

know if [Weldon] killed her or I killed her.'").) There is simply no

evidence upon which a reasonable juror could conclude who killed Le.23

_________________________________________________________________

not inconsequential. As a result of this finding, the court vacated Weldon's sentence, concluding that the exclusion of the statements at issue

prevented Weldon from presenting relevant evidence in mitigation.

22 The only possible mitigating circumstance that could be inferred

from Howard's confession is that he lacked the intent to kill Le. In other

words, that he wanted only to render her unconscious and he released her

when he thought she was still alive. Howard presented his alleged lack

of intent to kill Le to the jury numerous times through the testimony of

Agent Battle and Lieutenant Hitchins. Agent Battle testified that Howard's original plan was merely to steal Le's car and not to harm her.

Agent Battle further stated that Howard reported that he intended to use

the plastic bag "`not [to] kill [Le], [but] just to put her out.'" (J.A. at

636.) Similarly, Lieutenant Hitchins testified that both Howard and Weldon consistently stated that their only purpose in coming to Greenville

that night was to steal a car and that neither man had any intention of

harming anyone. Based on the foregoing, we conclude that any error in

the exclusion of the statements regarding Howard's alleged lack of intent

was harmless because it could not have had a "substantial and injurious

effect or influence" on the jury's decision to recommend a sentence of

death for Howard. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Howard's alleged lack of intent to kill Le was thoroughly presented to the

jury. See Buchanan v. Angelone, 103 F.3d 344, 349 (4th Cir. 1996) (finding no constitutional violation when excluded mitigating evidence

"would have had only cumulative probative value"), cert. granted in

part, 117 S. Ct. 1551 (1997).

23 At this point, we must take issue with the dissent's dramatic, yet

unfounded, assertion that the majority holds that the identity of the actual

 33
Moreover, contrary to the dissent's assertion that"anything that

makes Weldon look worse necessarily helps Howard," see post at 50,

Weldon's intent to kill Le is not mitigating evidence in favor of Howard. Weldon's state of mind is not relevant to the jury's determination

of the proper punishment for Howard because the Eighth Amendment

requires an individualized determination of sentencing in death penalty cases. See Lockett v. Ohio, 438 U.S. 586, 604 (1978). In conclusion, we agree with the South Carolina Supreme Court's finding that

his "unredacted confession contained no mitigating evidence," and

therefore, there was "no prejudice from its exclusion at the penalty

phase of the trial." State v. Howard, 369 S.E.2d 132, 138 (S.C. 1988).

Based on the foregoing, we reject Howard's Eighth Amendment

claims.

C.

Howard also contends that the trial court erroneously failed to

instruct the jury on the lesser included offense of manslaughter when

it recharged the jury on the elements of murder. The trial court originally charged the jury on both murder and manslaughter. During

deliberations the jury requested "the interpretation of the charge of

murder you previously provided." The trial court complied with the

request and repeated only the murder instruction. Howard did not

object. "Errors at trial not objected to, in contravention of State contemporaneous objection rules, are not cognizable in federal habeas

corpus proceedings, absent a showing of cause for non-compliance

and prejudice." Satterfield v. Zahradnick, 572 F.2d 443, 446 (4th Cir.

1978) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). We readily

dismiss Howard's claim, concluding that Howard was in no way prejudiced by the trial court's refusal to recharge a manslaughter instruction that was not requested and previously had been charged. See

_________________________________________________________________

killer in a crime involving multiple defendants is irrelevant for sentencing purposes. No one disputes that a defendant should be allowed to

present evidence demonstrating that he was not the "triggerman." However, in this case, as the dissent acknowledges, Howard admitted that he

did not know who actually killed Le. The dissent, therefore, argues that

evidence should have been admitted that simply does not exist, i.e., that

Weldon actually killed Le.

 34
Sturges v. Matthews, 53 F.3d 659, 661 (4th Cir. 1995) ("A judgment

will be reversed for error in jury instructions `only if the error is

determined to have been prejudicial, based on a review of the record

as a whole.'" (quoting Wellington v. Daniels, 717 F.2d 932, 938 (4th

Cir. 1983))).

D.

Next, Howard contends that he was denied effective assistance of

counsel in violation of the Sixth Amendment because trial counsel

failed to investigate and present mitigating evidence during sentencing concerning his adaptability to prison, his military record, and his

school performance. A claim of ineffective assistance of counsel is a

mixed question of law and fact which we review de novo. See

Strickland v. Washington, 466 U.S. 668, 698 (1984). To prove a constitutional claim for ineffective assistance of counsel, a defendant

must show both that his counsel's representation was deficient and

that he was prejudiced by the deficiency. See id. at 687. As to prison

adaptability, Howard's counsel offered into evidence several witnesses who testified that Howard was capable of adapting to prison

life. Although counsel failed to submit evidence regarding Howard's

prior incarceration for armed robbery, he presented three North Carolina law enforcement witnesses describing Howard's remorseful state

after Le's murder and his cooperation with the authorities surrounding

the instant charges. We agree with the state PCR court that Howard's

past prison record presented a "double[-]edge[d] sword" in that any

further evidence of Howard's prior federal prison experience may

have detrimentally highlighted his past criminal record. Regarding

counsel's failure to present evidence regarding his military record and

school performance, we agree with the other courts that have

reviewed the record that Howard's military and school history were,

at best, "checkered," and would have hurt him as much as helped him.24

Therefore, counsel's decision not to introduce his military and school

records into evidence was not deficient. See Bell v. Evatt, 72 F.3d

421, 429 (4th Cir. 1995) (noting that counsel's use of reasonable and

acceptable trial tactics does not constitute ineffectiveness), cert.

denied, 116 S. Ct. 2533 (1996).

_________________________________________________________________

24 For example, Howard was convicted of armed robbery while serving

as a military policeman.

 35
E.

Howard claims that he was unduly prejudiced when the prosecutor,

during closing arguments in the sentencing phase of Howard's trial,

violated his Fifth Amendment right against self-incrimination by

improperly commenting on his failure to testify. The prosecutor made

the following remarks:

 In order to rehabilitate it must come from the heart. It's

like an alcoholic. An alcoholic, you have to admit your

problem before you can get treated. You're half way there

if you admit your problem. For you to be able to rehabilitate, you must start with remorse. Where is the remorse in

this case? There is no remorse in this case. There is no

remorse in the actions of Dana Weldon and Ronnie Howard,

because one week later, they're out on another crime spree

in Asheville, North Carolina. Where is the remorse? There

is no remorse in Ronnie Howard. He told these witnesses,

"I don't think I really cared." He told Mr. Lee Warren, the

detective from Asheville, "Well, the first one bothered me

some, but after that I really didn't care." Where is the

remorse? There is none.

(App. at 1612-13.)

Although the Fifth Amendment forbids comment by the prosecution on a defendant's failure to testify, see Griffin v. California, 380

U.S. 609, 615 (1965), when a prosecutor's comments are merely "a

fair response to a claim made by defendant or his counsel," there is

no constitutional violation, see United States v. Robinson, 485 U.S.

25, 32 (1988). We agree with the South Carolina Supreme Court and

the federal district court, which both rejected Howard's claim, that

this statement was neither a direct nor an indirect comment on his

failure to testify. When considered in context, these remarks are a

simple repeat of the evidence demonstrating that Howard and Weldon

had robbed another store a mere week after murdering Le, and Howard's own statement that Le's death "really didn't bother him at all."

Moreover, these remarks were in direct response to defense counsel's

argument that Howard was remorseful for his actions. See id. Accordingly, we conclude that the comments did not violate Howard's con-

 36
stitutional rights and affirm the district court's denial of habeas relief

on this ground.

F.

Finally, Howard claims that his due process rights were violated

when the prosecution allowed the jury to use as scrap paper the

reverse side of outdated form letters, used by a previous prosecutor

to thank former jurors for their service. Howard claims that this action

was an impermissible ex parte communication between the prosecutor

and the jury. This argument is meritless.

In Remmer v. United States, 347 U.S. 227 (1954) (Remmer I), the

Supreme Court held that

any private communication, contact, or tampering directly

or indirectly, with a juror during a trial about the matter

pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known

rules of the court and the instructions and directions of the

court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests

heavily upon the Government to establish, after notice to

and hearing of the defendant, that such contact with the

juror was harmless to the defendant.

Id. at 229. In accordance with Remmer I, we have established a threestep process for analyzing allegations of ex parte juror contact. First,

the party attacking the verdict must introduce competent evidence that

there was an extrajudicial communication or contact, and that it was

"`more than innocuous interventions.'" United States v. Cheek, 94

F.3d 136, 141 (4th Cir. 1996) (quoting Haley v. Blue Ridge Transfer

Co., 802 F.2d 1532, 1537 n.9 (4th Cir. 1986)). If this requirement is

satisfied, the Remmer I presumption automatically arises. Then, the

burden shifts to the prevailing party to demonstrate"that there exists

no `reasonable possibility that the jury's verdict was influenced by an

improper communication.'" Id. (quoting Stephens v. South Atlantic

Canners, Inc., 848 F.2d 484, 488-89 (4th Cir. 1988)).

 37
Years prior to Howard's trial, a former prosecutor printed numerous copies of a form letter, which he sent to former jurors thanking

them for their service. Apparently in an effort to conserve resources,

the county clerk bound the unused form letters and used them, reverse

side up, for notepads. While the jury in Howard's trial was deliberating, they made notes on the scrap paper that had been provided. The

state PCR court, after conducting a full evidentiary hearing, found

that there was no evidence to suggest that any member of the prosecutor's office attempted to contact any juror, directly or indirectly, or to

influence them. Moreover, there was no evidence presented to show

that the prosecutor, at any time prior to the state PCR hearing, had

any knowledge that the reverse side of the form letters had been used

as scrap paper. Accordingly, the state PCR court dismissed Howard's

claim, finding that no improper ex parte contact occurred.

The state PCR court's factual findings are entitled to a presumption

of correctness. See Rushen v. Spain, 464 U.S. 114, 120 (1983) (per

curiam) (a state court's post-trial finding of the effect of ex parte communication on juror impartiality is a "fact" deserving "a high measure

of deference"); Johnson v. Maryland, 915 F.2d 892, 896 (4th Cir.

1990) (same). The substance of the ex parte communications and their

effect on juror impartiality are questions of historical fact entitled to

this presumption absent "convincing evidence" to the contrary. See

Rushen, 464 U.S. at 120. Here, the state court necessarily concluded

that the jury's deliberations were not biased. Howard has failed to

present evidence that the jurors even read the form letters, and thus

he fails to meet the first prong of the Remmer I test. Even assuming

that the jurors were aware of the form letters, we conclude that any

error was harmless as the form letters were nothing "more than innocuous interventions," Cheek, 94 F.3d at 141, that had no "`substantial

and injurious effect or influence in determining the jury's verdict,'"

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946)).

III.

In conclusion, finding no constitutional errors, we refuse to disturb

the conviction and sentence rendered against Howard by South Carolina's state court system. Accordingly, we affirm the district court's

denial of habeas relief to Howard.

 38
AFFIRMED

MICHAEL, Circuit Judge, dissenting:

Under Edwards v. Arizona, 451 U.S. 477 (1981), a suspect in custody only has to ask for a lawyer once. Thereafter, the suspect cannot

be questioned without counsel present unless he himself initiates the

contact with authorities. Here, Ronnie Howard invoked his Fifth

Amendment right to counsel one day before his federal probation officer came to see him. Howard's unwarned confession to the probation

officer prompted that officer to arrange a meeting between Howard

and the FBI, which, in turn, led to a meeting with a deputy sheriff.

Howard made separate Miranda-warned confessions to the FBI and

the deputy, and those two confessions were admitted at trial. The

majority holds that it is immaterial whether Howard initiated the

meeting with his probation officer because his confession to that officer was not actually coerced in a constitutional sense. Thus, according

to the majority, the resulting Miranda-warned confessions to the FBI

and the deputy were not tainted and were admissible. This holding is

in direct conflict with Edwards. Under Edwards, once a suspect asks

for a lawyer, there can be no police interrogation unless the suspect

initiates it. The majority has circumvented this rule, and Edwards is

now all but gone in the five states of the Fourth Circuit.

In addition, the majority ignores well-established Eighth Amendment precedent that governs the admission of mitigating evidence at

sentencing. The state trial judge allowed only part of Howard's later

confessions to be introduced. The redacted confessions were admitted

for their truth, both at trial and at sentencing. Because of the redactions, the jury never heard the climax of Howard's chilling story,

when he described how Weldon reapplied pressure to make sure the

victim died. The judge correctly excluded the redacted portions in the

guilt phase of the trial pursuant to Bruton v. United States, 391 U.S.

123 (1968), because they shifted blame to Weldon. In the penalty

phase, however, the full story should have come in: the Eighth

Amendment gives Howard the right to have the sentencing jury hear

any mitigating evidence about his personal history or the circumstances of the offense. The trial judge and the majority should have

recognized that any information that shifts ultimate blame to another

is, by definition, mitigating evidence about the circumstances of the

 39
crime. Because the majority errs twice with respect to the confessions,

circumventing Edwards and ignoring the Eighth Amendment, I must

respectfully dissent.

I.

On September 12, 1985, Howard was arrested and jailed in North

Carolina for a robbery unrelated to the Chinh Le murder. Immediately

thereafter, South Carolina authorities sought to question Howard, but

his lawyer told them on September 18 and 24 that Howard could not

be interrogated unless he (the lawyer) was present. Howard and his

lawyer did meet with the South Carolina authorities on October 2, but

after an unsuccessful attempt to obtain immunity, Howard invoked his

right to counsel and refused to talk. The very next day Howard's federal probation officer, Heywood Polk, came to the Buncombe County

Jail to see Howard. The majority claims it is immaterial whether

Howard or Polk initiated this meeting. In any event, Howard's lawyer

was not notified about the meeting, and Polk did not give Howard the

Miranda warnings. Howard proceeded to confess to Polk "about

everything," including the Le murder and several other crimes.1

Polk's advice to Howard was directly contrary to that given by his

_________________________________________________________________

1 The majority assumes for purposes of its own analysis that Polk's

questioning of Howard was custodial interrogation. Yet the majority

would deny me the same assumption. See ante at 18-19 n.13. The

assumption is sound because Miranda and Edwards protections should

apply when a probation officer interrogates a suspect in custody before

indictment or trial. See United States v. Andaverde, 64 F.3d 1305, 1311

(9th Cir. 1995) ("[C]ustodial statements made to probation officers are

subject to the same voluntariness analysis as statements made to other

law enforcement officers"). Of course, a probation officer does not have

to give Miranda warnings before a non-custodial meeting, see Minnesota

v. Murphy, 465 U.S. 420, 431 (1984), or before a routine presentence

interview, see United States v. Hicks, 948 F.2d 877, 885 & n.8 (4th Cir.

1991). Here, Howard was in jail, and Polk was definitely not conducting

a presentence interview. Polk, then, was engaging in custodial interrogation if his approach to Howard was "reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

Because Howard placed great trust and confidence in Polk, the meeting

predictably turned into a confessional. The premise of custodial interrogation is therefore reasonable.

 40
lawyer: Polk convinced Howard to talk to the FBI in an attempt to get

a deal.2 On October 8, five days after his meeting with Polk, Howard

confessed to FBI agent Battle after signing a Miranda waiver. A week

later, on October 16, Howard again waived his Miranda rights and

confessed to Lieutenant Hitchins, a South Carolina sheriff's deputy.

Howard's lawyer was not notified about any of these meetings, even

though Howard had invoked his right to counsel only a few days earlier, on October 2. At Howard's murder trial the state introduced

redacted versions of Howard's confessions to the FBI and the deputy.

The ultimate question is whether Edwards makes Howard's confessions to the FBI and the deputy sheriff inadmissible.3 Edwards estab-

_________________________________________________________________

2 The majority, ante at 20, quotes Howard (from the suppression hearing) on how he "opened up to [Heywood Polk] about everything." After

that testimony Howard continued as follows:

Q . . . And as a result of opening up everything to [Polk], did

part of that concern these charges that you are now on trial for

your life for?

A Yes, sir. I think--let's see, Heywood's exact words were,

"You need to try to get as less time as possible off of this stuff."

This is after I told him about the murders and other armed robberies and so forth, and he said that he had a friend in the F.B.I.

that he was going to call to come up and talk to me in Buncombe

County Jail.

App. at 1092.

3 The majority misreads Howard's briefs when it says that "Howard

does not contend that his confessions to Agent Battle and Lieutenant

Hitchins were made in violation of Edwards." Ante at 17. Howard builds

an argument based explicitly on Edwards, beginning with the following

summary:

Howard . . . invoked his right to counsel, a right that was not

respected when his federal parole officer approached and interrogated him while he was still in custody on those charges. In the

course of that interrogation Howard agreed to talk to other law

enforcement officials, and eventually made statements to FBI

Agent Battle and South Carolina Detectives Hitchins and Christie. . . . The admission of these statements violated Howard's

Fifth Amendment right against compulsory self-incrimination.

Appellant's Opening Brief at 49; see generally id. at 49-56; Appellant's

Reply Brief at 1-8.

 41
lished a bright line rule: once a suspect in custody invokes his right

to counsel, he cannot be questioned again without counsel present

"unless the [suspect] himself initiates further communication,

exchanges, or conversations with the police." Edwards v. Arizona,

451 U.S. 477, 485 (1981).

The rule of Edwards supplements Miranda with added protection

for exercising the Fifth Amendment privilege against selfincrimination. Before a jailed suspect has asked for a lawyer, he

receives only the basic Miranda protection, the irrebuttable presumption that any unwarned statement to the police is involuntary (for

Miranda purposes) and therefore inadmissible. Once the suspect

invokes the right to counsel, however, he receives the added Edwards

protection:

if a suspect believes that he is not capable of undergoing

[custodial] questioning without advice of counsel, then it is

presumed that any subsequent waiver that has come at the

authorities' behest, and not at the suspect's own instigation,

is itself the product of the "inherently compelling pressures"

and not the purely voluntary choice of the suspect.

Arizona v. Roberson, 486 U.S. 675, 681 (1988). Again, once a suspect

asserts the right to counsel, police-initiated reinterrogation without

counsel is prohibited. Any confession resulting from police-initiated

reinterrogation is barred by Edwards even if the suspect waived his

Miranda rights and even if the confession was voluntary under traditional due process analysis. See id. at 686; see also Minnick v.

Mississippi, 498 U.S. 146, 151 (1990).

In this case, we know little about what Howard was thinking as he

sat in the Buncombe County Jail. But we do know one thing: he

invoked his right to counsel on October 2, 1985, and he flatly refused

to talk to the police. Thus, unless Howard himself initiated further

discussions with the authorities, the confessions he made in response

to questioning by his probation officer, the FBI, and the deputy are

all inadmissible. That is the clear command of Edwards.

The first question is whether Howard initiated the discussion with

his probation officer. The majority disembowels Edwards by dismiss-

 42
ing this question as immaterial. As Justice Kennedy, writing for the

Court, has explained, "[t]he merit of the Edwards decision lies in the

clarity of its command and the certainty of its application." Minnick,

498 U.S. at 151. The majority ignores this guidance from the Supreme

Court and constructs a complex detour around the clear mandate of

Edwards. First, it says that Edwards is not a constitutional rule. Second, it assumes that Howard's statement to Polk, including his agreement to speak to the FBI, was obtained in violation of Edwards. Thus,

it does not matter if the probation officer initiated the meeting. Third,

the majority says that notwithstanding any Edwards violation, Howard's subsequent confessions to the FBI and the deputy are admissible

unless the "fruit of the poisonous tree" doctrine applies. In other

words, if Howard's October 3rd confession to Polk was voluntary

(not coerced) under traditional Fifth Amendment standards, there is

no "poisonous tree" and the subsequent (resulting) confessions are not

"tainted fruits." Using this analysis, the majority quickly finds that

"Howard's statements to Polk were not `involuntary' within the

meaning of the Fifth Amendment,"4 ante at 23-24, and concludes that

the later confessions were not "tainted fruits."

The majority's approach misses the whole point of Edwards. The

Edwards rule operates even absent a constitutional violation. See

Roberson, 486 U.S. at 681-82. Thus, the majority's focus on just the

voluntariness of Howard's statement to Polk is wholly misplaced.

Edwards emphasizes that whether a confession is voluntary and

whether a suspect has validly waived his already invoked right to

counsel "are discrete inquiries." Edwards, 451 U.S. at 484. In

Edwards, Robert Edwards asked for a lawyer the night of his arrest.

The next morning two detectives came to the jail to see Edwards and

advised him of his Miranda rights. They got a confession, and the

state courts held it to be voluntary and admissible. The Supreme

Court reversed on the admissibility point:

We now hold that when an accused has invoked his right to

have counsel present during custodial interrogation, a valid

waiver of that right cannot be established by showing only

that he responded to further police-initiated interrogation

even if he has been advised of his rights.

_________________________________________________________________

4 I repeat that Polk did not give Miranda warnings to Howard.

 43
Id. (emphasis added). Thus, even though Edwards' confession was

voluntary, it was inadmissible because he had not initiated the contact

with the police. With respect to Howard, it makes no difference that

the majority finds Howard's confession to Polk to be voluntary under

traditional Fifth Amendment standards. Voluntariness is still the

wrong inquiry. The only relevant question is whether Howard himself

initiated communication with Polk, thereby waiving his previously

invoked right to counsel.5

The whole problem with the majority's approach is that it never

focuses on whether any of Howard's confessions -- the first to Polk

and the second and third to Battle and Hitchins-- were made after

a valid waiver of his once-asserted right to counsel. Instead, the

majority holds that Edwards protection is broken with one "voluntary" (uncoerced) statement, made without Miranda warnings. The

practical consequence of this holding is quite significant. Even though

a jailed suspect has invoked his right to counsel, the police can now

send in an interrogator who gets a confession (without counsel present) that is not coerced under traditional Fifth Amendment analysis.

This allows the police to send in (still without counsel present) additional interrogators who get Miranda waivers and new, "untainted"

confessions. The later confessions are admissible because the first

was not coerced, even though all were obtained in blatant violation

of Edwards.

I am convinced that the Supreme Court did not intend for the bright

line rule of Edwards to be circumvented in this way. Indeed, the

Supreme Court has indicated that fresh sets of Miranda warnings in

subsequent police-initiated interrogation do not overcome the presumption that the suspect who has invoked his right to counsel

believes he cannot cope with interrogation without his lawyer at his

side. See Roberson, 468 U.S. at 686 ("[W]e . . . disagree with [the

state's] contention that fresh sets of Miranda warnings will `reassure'

_________________________________________________________________

5 The majority's resurrection of the "voluntariness" question tramples

on the simplicity of Edwards: "Edwards conserves judicial resources

which would otherwise be expended in making difficult determinations

of voluntariness, and implements the protections of Miranda in practical

and straightforward terms." Minnick v. Mississippi, 498 U.S. 146, 151

(1990).

 44
a suspect who has been denied the counsel he has clearly requested

that his rights remain untrammeled."). There is only one conclusion:

Miranda-warned confessions, such as those Howard gave to the FBI

and the deputy sheriff, are inadmissible if they are set up by an earlier

Edwards violation.

The majority's rationale for undermining Edwards appears to be

based on a misapplication of Oregon v. Elstad, 470 U.S. 298 (1985),

a case that is quite different from Edwards and Howard's case. In

Elstad, when the police went to the home of the accused (Elstad) to

arrest him, he admitted his involvement in the crime before he was

given his Miranda rights. After Elstad was taken to the station, the

police read him his rights; he then waived his right to counsel and

gave a full confession. The Court noted that Elstad's prior unwarned

statement, although inadmissible under Miranda, was not coerced. As

a result, the first statement did not "compromise[ ] the voluntariness

of [the] subsequent informed waiver," and the second statement was

held admissible. Id. at 312. In direct contrast to the situation in

Edwards, however, Elstad did not request counsel before making his

first incriminating statement to the police. This distinction is critical.

A defendant may give a statement to the police before receiving his

Miranda warnings out of lack of awareness of his rights. In that case,

"a careful and thorough administration of Miranda warnings serves to

cure the condition that rendered the unwarned statement inadmissible." Id. at 310-11. Any statement made after the Miranda warnings,

therefore, is not tainted by the fact of a prior unwarned statement. But

where the defendant requests counsel at the outset, the refusal to

honor this request creates an atmosphere conducive to coercion,

which the mere repetition of Miranda warnings cannot overcome. See

Roberson, 486 U.S. at 686. That is why a request for counsel gives

rise to a presumption of coercion that taints all future statements made

outside the presence of counsel, unless the accused himself initiates

later discussions with police.

Here the state maintains that Howard initiated the meeting with

Polk, and there appears to be support for that argument in the record

of state proceedings. Howard vehemently disagrees. In light of this,

instead of rushing to scuttle Edwards, I would remand this case to the

district court for it to determine who initiated the Howard-Polk meeting of October 3. If Howard initiated it, there is no Edwards violation.

 45
In sum, the majority's premature move to obliterate the bright line

rule of Edwards is contrary to clear precedent. The Supreme Court

has repeatedly affirmed the principle set out in Edwards that once a

defendant invokes his right to counsel, any later confession resulting

from police-initiated interrogation must be suppressed. See, e.g.,

Smith v. Illinois, 469 U.S. 91 (1984) (per curiam) (reversing conviction because police continued to interrogate defendant after he

invoked his right to counsel, even though his resulting confession was

voluntary and not the product of coercion); Arizona v. Roberson, 486

U.S. 675 (1988) (reversing conviction where police initiated interrogation and obtained incriminating statements after defendant had

invoked his right to counsel, even though questioning related to separate investigation); Minnick v. Mississippi, 498 U.S. 146 (1990)

(reversing conviction where defendant was interrogated without a

lawyer after he had invoked his right to counsel, even though his lawyer was "made available" outside interrogation room); Davis v.

United States, 512 U.S. 452, 458 (1994) ("But if a suspect requests

counsel at any time during the interview, he is not subject to further

questioning until a lawyer has been made available or the suspect

himself reinitiates conversation." (citing Edwards)). This unambiguous and continuing reaffirmance of the rule in Edwards means that

unless Howard initiated the meeting with Polk, the resulting confessions Howard made to the FBI and the deputy sheriff were inadmissible. The Supreme Court has left no room for maneuver when it comes

to Edwards.

The thrust of the majority's criticism of my dissent is that I "ignore[ ] . . . that Howard initiated the discussions with" the FBI. Ante

at 24 n.17. In making this criticism, however, the majority ignores the

full circumstances under which Howard "initiated" further contact

with the authorities. According to the majority's reasoning, it is

immaterial if Howard's "request" to talk with the FBI came in a statement (to Polk) obtained in violation of Edwards so long as the statement was "voluntary" in a constitutional sense. The majority's

approach thus allows police to violate Edwards in one interrogation

in order to get a waiver of Edwards for the next round of questioning.

That approach is wrong, and it obliterates the clarity and protection

of the bright line rule. The Edwards line of cases requires us to start

with the suspect's request for counsel -- a constitutionally significant

act -- and work forward from there. After the request for counsel is

 46
made, there can be no interrogation unless the suspect initiates it without any prodding from the authorities. If Howard did not initiate the

meeting with Polk, his entire statement to Polk, including his "request" to speak to the FBI, was obtained in violation of Edwards. The

Edwards rule is meaningless if the police can use a request gotten in

violation of Edwards to prove that a confession taken a few days later

satisfies Edwards.

II.

Even if the confessions (to the FBI and the sheriff's deputy) were

admissible, Howard should have been able to present the unredacted

versions at his sentencing. The sentencing jury was given the following, incomplete story of Howard's confession: Howard held the plastic bag over Ms. Le's head to make her pass out but not to kill her.

He then released the bag, believing that she had simply passed out

and that she still had a pulse. He later realized as he and Weldon

drove around that Ms. Le was dead. Howard admitted that he could

not say who actually killed her.

There is a big gap in Howard's brutal story that the jury never

heard. The jury was not told that when Howard released the bag, Weldon grabbed it, held it over Ms. Le's head, and reapplied pressure.

Because of this omission, the sentencing jury was not allowed to hear

Howard's assertion that Weldon likely committed the act that killed

Ms. Le. Howard argues that the jury was required to consider whether

this mitigated his own moral responsibility for the murder. Howard

is correct that moral culpability is always relevant to sentencing: "Our

capital cases have consistently recognized that`[f]or purposes of

imposing the death penalty . . . [the defendant's] punishment must be

tailored to his personal responsibility and moral guilt.'" South Carolina v. Gathers, 490 U.S. 805, 810 (1989) (quoting Edmund v.

Florida, 458 U.S. 782, 801 (1982) (alteration in original)).6

_________________________________________________________________

6 Howard and Weldon were, of course, acting together. I therefore

agree with the majority that Howard's statement about Weldon's final act

does not change Howard's legal culpability for the murder under South

Carolina law. In capital sentencing, however, the jury must make moral

judgments that go beyond the question of legal responsibility.

 47
The Eighth Amendment provides a capital defendant the broadest

latitude to offer evidence at sentencing to avoid the death penalty. The

general rule is that the jury must consider any mitigating evidence,

that is, "any aspect of a defendant's character or record or any of the

circumstances of the offense that the defendant proffers as a basis for

a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978)

(plurality opinion). The only question here, as the majority acknowledges, is whether any reasonable juror could have found the redacted

portion of the confession to be mitigating. See ante at 32-33 (holding

that "[w]e are firmly convinced that no reasonable juror could have

found that the unredacted portions of Howard's confession were evidence that Weldon, rather than Howard, actually killed Le").

Howard's effort to offer his full confession is a perfect example of

what the Supreme Court meant in Eddings v. Oklahoma, 455 U.S. 104

(1982), when it said that a capital defendant has the right to present

at the sentencing phase all evidence about the "circumstances of the

offense." The circumstances of the murder in this case are key. Of

course, it is true that Howard did not have to be the "triggerman" to

be eligible for the death penalty. See Tison v. Arizona, 481 U.S. 137

(1987). Eligibility, however, does not mean that capital punishment

must be imposed. A jury can sentence a person to death in accordance

with the Eighth Amendment only after it considers all of the mitigating evidence the defendant wishes to present. See Lockett, 436 U.S.

at 608 (holding that defendant's relatively minor participation in the

crime is a mitigating factor that sentencer must consider); Hitchcock

v. Dugger, 481 U.S. 393 (1987) (Scalia, J.) (holding for a unanimous

Court that sentencer in capital case must consider an extensive list of

non-statutory mitigating factors). Howard must be allowed to present

his side of the story.

The majority mistakenly assumes that the redacted evidence is only

relevant to Howard's intent to kill. But it has a broader relevance for

sentencing purposes: it sheds light on whether Howard or Weldon

committed the ultimate act that caused Ms. Le's death. Indeed, even

though Howard admitted he could not be sure who killed Ms. Le, a

jury could find that Howard is less blameworthy from a moral standpoint than Weldon. This is because Weldon committed a conscious

act to make sure Ms. Le would die. I readily concede that making a

moral distinction here is extremely difficult. Is a murderer who

 48
chokes a victim until she loses consciousness as culpable morally as

one who chokes her after she is unconscious, just to make sure she

is dead? What if he chokes the murder victim, but lets go when he

thinks she is just unconscious? What if he restrains the victim while

another chokes her to death? The law tells us who is legally responsible for the murder in each case. The law does not tell us whether the

death penalty should be imposed in each case. It tells us only that the

jury must have all the facts before making the sentencing decision.

A capital defendant is given broad latitude to offer mitigating evidence because "`the penalty of death is qualitatively different'" than

any other sentence. See Lockett, 438 U.S. at 604 (quoting Woodson

v. North Carolina, 428 U.S. 280, 304 (1976)). The death penalty's

irrevocable end has prompted the Supreme Court to require the sentencer in capital cases to consider a defendant's violent and troubled

youth, see Eddings v. Oklahoma, 455 U.S. 104 (1982); good behavior

in prison, see Skipper v. South Carolina, 476 U.S. at 1, 4-5 (1986);

history of child abuse and emotional problems, see Penry v. Lynaugh,

492 U.S. 302 (1989); ineligibility for parole, see Simmons v. South

Carolina, 512 U.S. 154, 162 (1994); poverty-ridden childhood, see

Hitchcock, 481 U.S. at 397; good deeds as an affectionate uncle, see

id.; and childhood habit of inhaling gas fumes, see id.

Thus, virtually no limits are placed on a capital defendant's ability

to introduce mitigating evidence concerning his personal circumstances and the circumstances of his crime. See Eddings, 455 U.S. at

112. The majority makes this court the first to hold that when two or

more are guilty of the same murder, evidence about the identity of the

actual killer is not relevant in mitigation at the sentencing phase. This

position is particularly questionable in light of the Supreme Court's

holding in Green v. Georgia, 442 U.S. 95 (1979) (per curiam). In that

case the trial court refused to admit a statement by a third party that

Green's partner in an abduction had murdered the victim outside of

Green's presence. The Supreme Court reversed Green's capital sentence because "the excluded testimony was highly relevant to a critical issue in the punishment phase of a trial," namely whether Green

participated directly in the murder. Id. at 97 (citing Lockett); see also

Chaney v. Brown, 730 F.2d 1334, 1357 (10th Cir. 1984) (upholding

conviction but vacating death sentence because "[t]he withheld

reports contained important mitigating evidence supporting the infer-

 49
ence that another person or persons were involved in the kidnappings

and murders, and that [the defendant] may not have personally killed

the victims").

One theme underlies the Lockett and Eddings line of cases: the sentencing jury alone, armed with the complete story, must decide the

question of the capital defendant's moral culpability. Yet here the

majority steps into the jury box, reviews the unredacted statements,

and decides the question of moral culpability against Howard. See

ante at 33 ("Nothing in the redactions altered Howard's personal culpability for Le's death. Moreover, nothing in the redactions could be

construed as mitigating evidence in Howard's favor."). The majority's

judgment is based on three determinations that must be left for a jury.

First, the majority indicates that the omitted assertion (Weldon likely

killed the victim) is negated by the rest of what Howard said. But the

state introduced most of what Howard said for its truth, suggesting

that he was not completely unreliable. Compare Green, 442 U.S. at

97 (noting that prosecution had introduced Green's confession in guilt

phase). It is the jury, and not this court, who should decide whether

the rest of what Howard said is reliable. Second, the majority notes

that the unredacted confessions reveal Howard's own uncertainty

about "whether he or Weldon committed the final act of murder."

Ante at 33. It is true that Howard could not be sure that he removed

the plastic bag in time. But a jury could decide that this uncertainty

makes him less culpable than Weldon, who was a calculated and

deliberate killer. Third, the majority suggests that the redacted portion

simply inculpates Weldon instead of helping Howard. In this case,

however, anything that makes Weldon look worse necessarily helps

Howard because relative blameworthiness could be important to the

jury in deciding whether to sentence one or both to death. Indeed, relative blameworthiness was important to one of the jurors on the panel

that voted to sentence Howard to death. This juror was asked in voir

dire about a murder case she was familiar with where three defendants were convicted of murder but only one was given the death penalty:

Q. And what did you feel about Pierce's sentence?

A. Well, I understand he was the only one that they

decided killed her, and the other two also participated

 50
in the crime, but I understood the reason that he was

sentenced to death was because he took the initiative to

kill.

Q. All right. And what was your feeling about Pierce's

sentence?

A. Well, like I said, I was not in the courtroom. I didn't

hear all the -- I read the paper, I kept up with it

through friends, and I'm sure that the -- I mean I

trusted the jury's decision.

Q. Did you have any question that they all should have

gotten the death penalty or none should have gotten the

death penalty?

A. I wasn't surprised that the other two didn't get the

death penalty. I can understand how they decided that.

Q. Why weren't you surprised?

A. Because Pierce was the one who killed her.

J.A. 368-69. This voir dire reveals that, if given a fully informed

choice, a jury could choose to execute only the most morally culpable

among a group of murderers. Howard's jury was prevented from

making that informed choice.7

_________________________________________________________________

7 The majority also claims that excluding these statements was merely

harmless error. The difficulty of reconstructing the moral decision that

capital sentencing demands suggests, at a minimum, that in order to be

deemed harmless, the evidence must be irrelevant or trivial. In Hitchcock

the unanimous Supreme Court held that the prosecution has the burden

to prove that the defendant was not prejudiced by the exclusion of mitigating evidence. See Hitchcock, 481 U.S. at 397; see also O'Neal v.

McAninch, 513 U.S. 432 (1995). The state has not even attempted to

meet that burden here. In any event, the voir dire demonstrates that we

cannot say with any confidence that the jury would have come back with

the same verdict of death if it had heard the full confession. When a court

is "in grave doubt about whether a trial error of federal law had a `sub-

 51
The jury sentenced Howard to death without hearing his whole

story to the authorities about the circumstances of the crime. The jury

never knew that he claimed it was Weldon who likely committed the

ultimate act of murder. Howard should not be put to death unless a

jury rejects the mitigating evidence that was barred from his sentencing.

III.

In sum, I respectfully dissent for two reasons. First, the majority

ignores Edwards and holds that it is immaterial whether Howard (who

had invoked his right to counsel) initiated the contact with authorities

that led to his confessions. Second, the majority ignores the Eighth

Amendment and cases such as Lockett and Eddings when it usurps the

jury's role and decides that it was not mitigating when Howard said

that Weldon took the final step to kill the victim. A jury must hear

that statement before it decides whether Howard should die.

Judges Hall, Murnaghan, and Motz join in this dissent.

_________________________________________________________________

stantial and injurious effect or influence in determining the jury's verdict,' that error is not harmless. And, the petitioner must win." O'Neal,

513 U.S. at 436. Sufficient doubt is created here because the voir dire

reveals that at least one juror might consider evidence that Howard did

not actually kill the victim to be mitigating.

 52