PEE WEE GASKINS IN THE COURTS: THE APPEALS, 1978-1990

On September 12, 1982, Rudolph Tyner was in his cell on death row at Central Correctional Institution in Columbia, South Carolina, waiting to be executed for the murders of Bill and Myrtle Moon, a Horry County couple shot in a robbery of their store. A device he had been told was an intercom, wired so that he could talk to the cell next door, went off in his hands. It was a bomb. The man who had built it and had it carried to his cell was Donald Henry Gaskins, a convicted murderer serving life sentences who worked as the maintenance man on the cell block, and who had been paid to do it by the Moons’ son, Tony Cimo. The state’s case, laid out in the 1985 opinion here, was that Cimo recruited a go-between, Jack Martin, that the three of them planned the killing over the prison telephone, that Gaskins first tried poison and then smuggled in explosives, and that another prisoner, the one who delivered the meals on death row, testified to what he saw that afternoon. At his sentencing Gaskins told the jury, “I am guilty of participating in it.”

The first opinion on this page is from four years earlier and concerns a different death sentence. In May 1976 a Florence County jury convicted Gaskins of shooting Dennis Bellamy and sentenced him to die under South Carolina’s 1974 capital statute. Six weeks later the United States Supreme Court struck down mandatory death penalty laws of that type, and when the appeal was called in January 1978 Gaskins tried to abandon it and asked to be sent back for resentencing. The court heard the argument anyway, affirmed the conviction, vacated the death sentence and returned him for a life term. Within months he had made a bargain with the Florence solicitor, Kenneth Summerford: a 341-page confession to seven more murders, given over four days, in return for life sentences and no prosecution for anything else. Doreen Dempsey and her infant daughter Michelle, John Henry Sellers, Jesse Judy, Avery Howard, Diane Neeley and Barnwell Yates were the seven people he admitted killing.

That confession is what came back to convict him of death the second time. Summerford read passages of it to the jury that sentenced Gaskins for Tyner, along with photographs of the earlier victims, and the South Carolina Supreme Court’s per curiam opinion of January 1985, working through twenty numbered claims, found no error in that or in anything else. The Fourth Circuit opinion of October 1990, by Judge Phillips, is the federal court’s review of the same trial; its longest passage asks whether a confession Gaskins now called coerced could constitutionally be used to argue for his death five years later, and answers that it could. Gaskins went to the electric chair at about one in the morning on September 6, 1991, hours after cutting his wrists and arms with a razor blade he had swallowed and brought back up.

Nothing in these opinions supports the numbers Gaskins later put on himself. The courts record one conviction for Bellamy, seven guilty pleas from the 1978 bargain, and the Tyner conviction; the 1985 opinion says he “had plead guilty to eight counts of murder and was serving life sentences” when Tyner died, and the 1978 bargain as the same court describes it covered seven. The hundred or more killings he claimed in the months before his execution are his own account, told to a writer, and they appear nowhere in the record. Where the opinions describe the bomb, the telephone calls and the poison, they are summarizing the testimony of a co-conspirator and of a prisoner witness, and the Fourth Circuit notes that the trial judge allowed the state considerable latitude with both.

Gaskins, Tyner, Cimo and Martin keep their names, as do the seven people he confessed to killing in 1978, Dennis Bellamy, Johnny Knight, and the Moons. The prisoner who was the state’s chief witness, a convicted murderer with limited freedom of movement on death row, is J.B. throughout, including in the passages about the two letters Gaskins wrote him from his cell trying to make him take the blame. A defense witness, a witness who refused to testify on Fifth Amendment grounds, a friend of Gaskins in the block, and the fourteen prospective and seated jurors the 1985 opinion discusses by name are initialled. One of those jurors is misnamed in the appellant’s own brief, and the court’s footnote saying so is kept. A state agent’s name reached us as “Lieutenant Tallón,” with an accent no South Carolina officer is likely to have carried; it is a scanning fault, and it stays.

Court opinions of a state supreme court and a federal court of appeals belong to everyone. The 1978 and 1985 South Carolina opinions arrived as clean text apart from the typesetter’s hyphens, which broke twenty-seven words across line ends (Gas-kins most often) and which we have closed where the whole word appears elsewhere in the file. The Fourth Circuit’s six footnotes are printed after its text under their own heading. We have not altered a word of what the courts wrote, and where the 1985 opinion says “The confessions was made a part of the court record,” that is how the reporter printed it.

270 S.C. 296, decided February 15, 1978

20608

The STATE, Respondent, v. Donald H. GASKINS, Jr., Appellant.

(242 S. C. (2d) 220)

284 S.C. 105, decided January 22, 1985

22217

The STATE, Respondent, v. Donald Henry GASKINS, Appellant.

(326 S. E. (2d) 132)

Supreme Court

W. Gaston Fairey and Jack B. Swerling, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Carolyn M. Adams, and Sol. James C. An- ■ ders, Columbia, for respondent.

Heard Sept. 12, 1984.

Decided Jan. 22, 1985.

[OPINION BY Per Curiam: type=majority]

Per Curiam:

This appeal is an appeal from the conviction and death sentence of Donald Henry “Pee Wee” Gaskins for the murder of Rudolph Tyner. Many errors of law are alleged to have been made by the trial judge. This appeal arises because of exceptions taken and because of our statutory mandatory review in all death penalty cases. We affirm both the conviction and the death sentence.

In 1979, Rudolph Tyner was tried and convicted of the murder of Mr. and Mrs. William B. Moon. He was sentenced to death by electrocution and was, at the time of his death, housed in a cell on death row at Central Correctional Institution at Columbia. The Appellant Gaskins had plead guilty to eight counts of murder and was serving life sentences on September 12,1982, when Tyner was murdered. Gaskins was also incarcerated at the Central Correctional Institute in Cell Block 2 (CB-2) and was acting as building or maintenance man for the death row area. This gave him considerable freedom to move about attending to chores in this cell block area. G.M. was also a prisoner and was a friend of Gaskins.

Tony Cimo was the son of Mr. and Mrs. Moon and was unhappy with the fact that Tyner continued to live. He inaugurated a plan to have Tyner killed on death row. Cimo procured the assistance of Jack Martin who lived in his same general area in Horry County. Gaskins, Cimo and Martin planned their strategy over the telephone for bringing about Tyner’s death. Gaskins had limited use of the telephone and recorded on tape cassettes several conversations which took place on February 23, 1982, July 9, 1982, July 14, 1982, and on one other unspecified date. In these conversations he discussed his unsuccessful efforts to poison Tyner and the possibility of killing Tyner with explosives concealed in a radio. In each of these telephone calls Gaskins wrongfully identified himself to the operator as G.M. Both Cimo and Martin referred to him in the conversation not as G.M., but as “Pee Wee” which is the nickname of Gaskins. The voice on the cassettes was identified as that of Gaskins.

The evidence revealed that Tony Cimo first contacted Jack Martin in an effort to hire an assassin of Tyner. Initially Martin contacted G.M. in August 1981. Thereafter, M. and Martin contacted Gaskins and developed a plan to poison Tyner. The poison did not accomplish its purpose and they thereafter resorted to smuggling explosives into the prison.

The State’s chief witness was prisoner J.B., a convicted murderer residing in the death row cell block. He was a “work out,” i.e. he had limited liberties for chores such as taking meals to prisoners in death row cells. He worked somewhat under Gaskins who designated him chores. He testified that on several occasions Gaskins directed him to deliver items to Tyner such as marijuana cigarettes. On September 12th Gaskins had prepared what appeared to be a radio-type speaker built into a plastic cup. In the bottom of the cup there was a female electrical socket adapted to be plugged in with an extension cord.

On this date, a few minutes before the explosion which caused Tyner’s death, Gaskins instructed B. to deliver the cup to Tyner and to give Tyner a message that “the wire was in the bottom vent in his cell.” B. further testified that Gaskins said Tyner would know what to do with the wire. Gaskins’ and Tyner’s cells adjoined such that one air circulation vent served both cells. One inmate could yell through the vent from his cell to the other. This is the vent referred to in the message sent by Gaskins to Tyner. It is the theory of the State that Tyner had been led to believe that connecting this cup-speaker to the wire would enable Gaskins to talk to Tyner without yelling through the vent. When Tyner plugged the wire into the bottom of the cup, an explosion occurred which blew off a portion of Tyner’s head and severed a hand from which he died soon after being transferred to the institution hospital.

B. testified that right after the explosion, he went to Gaskins’ cell and saw Gaskins pulling a wire from the bottom vent in his cell. A few moments later he heard Gaskin’s toilet flush. Gaskins came out of his cell and went downstairs.

Dr. E.W.C., a pathologist, testified that Tyner died as a result of the impact of explosives held near his left shoulder and head.

Gaskins exercises his Fifth Amendment privilege of not testifying, but submitted several prisoner witnesses mostly relative to his whereabouts at the time of the explosion.

Counsel for Gaskins submits that the trial judge committed numerous errors of law in conducting the trial and that he is entitled to a new trial. The first of these deal with the jury selection process.

Gaskins first contends that the trial judge erred in excusing prospective juror R.G.C. for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. (2d) 776 (1968). We disagree. The juror indicated that he did not believe that he could really consider the death penalty and consistently maintained his opposition to the death penalty throughout the voir dire examination. He specifically stated, “So I don’t think that the seriousness of the crime would affect my opinion.” The trial judge found that Mr. C. was irrevocably opposed to the death penalty and accordingly disqualified him from service. Where a trial judge has a reasonable basis to conclude that a prospective juror would be unable to faithfully discharge his responsibilities as a juror under the law, that decision will not be disturbed. State v. Linder, 276 S. C. 304, 278 S. E. (2d) 335 (1981).

II.

Gaskins next argues that the trial judge erred in refusing to excuse for cause jurors J.Q.C. and R.T.D., foreman, because they indicated that Gaskins should have received the death penalty for his prior convictions. We disagree.

The voir dire must be examined in its entirety. State v. Spann, 279 S. C. 399, 308 S. E. (2d) 518 (1983); State v. Gilert, 277 S. C. 53, 283, S. E. (2d) 179 (1981); cert. denied, 456 U. S. 984, 102 S. Ct. 2258, 72 L. Ed. (2d) 863 (1982). Throughout the voir dire, Mr. C. and Mr. D. maintained that they could give a fair trial to both the State and to Gaskins. Neither of them expressed any dogmatic opinion about the imposition of the death penalty. Although both jurors stated they believed Gaskins should have received the death penalty for the earlier murder convictions, they each stated that they had no opinion about his guilt or innocence in the present case, and that this case was separate from the earlier ones. When the voir dire of these jurors is examined in its entirety, we conclude that no bias or prejudice was shown against Gaskins in qualifying these two jurors.

III.

Counsel for Gaskins next submits that the trial judge erred in excusing M.E.G. and W.L.R., because they were not mentally capable of performing their duties as jurors. The trial judge ruled both jurors were disqualified under § 14-7-810(3) of the South Carolina Code of Laws (1976).

Both of these jurors gave inconsistent answers about their views of the death penalty and displayed an incredible lack of understanding of the trial process. Both R. and G. revealed an inability to follow directions and a similar inability to grasp the judge’s discussion. G. did not appear to understand the principle that a defendant is presumed to be innocent until proven guilty by the State. Likewise, R. stated that he would go along with the majority of jurors in both the guilt and the sentencing phases of the trial.

The manner and bearing of the prospective juror are elements which may be properly considered by a trial judge in deciding whether that juror is qualified to serve. State v. Middleton, 207 S. C. 478, 36 S. E. (2d) 742 (1946). A juror’s competence is within the trial judge’s discretion and not reviewable unless wholly unsupported by the evidence. State v. Spann, 279 S. C. 399, 308 S. E. (2d) 518 (1983). We find no error in the trial judge’s ruling.

IV.

Gaskins argues that the trial judge erred in excusing J.J. and B.S.F. because of their bias against him even though Gaskins was willing to waive any objection to their bias.

Both jurors expressed the belief that Gaskins was guilty but indicated they would be opposed to the death penalty despite their opinion of his guilt. The trial judge excused both jurors believing that neither could give Gaskins a fair trial. A trial judge has a duty to assure that every juror is unbiased, fair, and impartial. State v. Holland, 261 S. C. 488, 201 S. E. (2d) 118 (1973). Additionally, Mr. J. expressed an unfaltering opposition to the death penalty. In addition to his bias displayed against Gaskins, J. would not have been capable of giving the State a fair trial. Likewise, Ms. F. indicated her opposition to the death penalty as well as her conviction of Gaskins’ guilt. A defendant only has a right to a trial by a competent and impartial jury and no right to a trial by any particular jury or juror. State v. McDaniel, 275 S. C. 222, 268 S. E. (2d) 585 (1980); State v. Rogers, 263 S. C. 373, 210 S. E. (2d) 604 (1974).

Gaskins argues that he should be allowed to exercise the strategy of seating jurors who were convinced of his guilt but opposed to the death penalty. He asserts that he is entitled to waive any objection he might have about prejudice so long as the prejudice does not extend to the State’s position. We disagree. A defendant cannot waive the right to a fair trial unless he pleads guilty. Additionally, a juror who cannot impose the death penalty cannot render a verdict of guilty according to law pursuant to § 16-3-20(E). Both of the jurors were biased against Gaskins and opposed to the death penalty. Therefore, they are not qualified to serve as jurors and were properly disqualified.

Gaskins further contends that the trial court erred by refusing to strike two jurors, E.E.R. and C.R., because they indicated they would not seriously consider Life imprisonment as an alternative to the death penalty. Gaskins argues that he had to use two peremptory strikes for these jurors and was thereby prejudiced. This argument is without merit. Both jurors stated that they had not reached any conclusions as to Gaskins’ guilt or innocence. When questioned about the death penalty, each one explained that they could impose the sentence if the circumstances warranted it, but was not predisposed to give the death penalty in every case. Additionally, both jurors stated that they would follow the instructions of the trial judge.

In order to be qualified to serve on a jury in a capital case, a prospective juror must be able to reach a verdict of either guilty or not guilty and, additionally, if warranted, vote for either sentence. State v. Plath, 281 S. C. 1, 313 S. E. (2d) 619 (1984). Each of these jurors indicated that he could consider all of the evidence, reach a verdict, and impose a sentence according to the instructions of the trial judge. We find no error in the qualifying of jurors E.E.R. and C.R.

VI.

Gaskins charges that the trial judge erred in refusing his motion to suppress items taken from his cell without a warrant because the search and seizure was unreasonable and forbidden by the Fourth Amendment to the Constitution of the United States.

Gaskins’ cell adjoined Tyner’s wherein the killing took place. After the death of Tyner, Gaskins was transferred to maximum security because he was a suspect. He was directed to take all of his personal belongings from his cell and put them in a laundry cart to be taken to the contraband control office. In inventorying the items, prison officials discovered a telephone jack, earphone, a soldering iron, and electrical wires. They also found a Panasonic tape recorder, a wrench, pliers, screw drivers, light bulbs, and extension cord, and a disassembled cassette recorder. There were also thirty-eight cassette tapes, a radio, a torn speaker, plastic fan blades, double-edged razor blades, marijuana and electrical cords.

The cassette tapes had recorded conversations between Gaskins and Martín and Gaskins and Cimo. Among the things discovered was an address book. Lieutenant Tallón of the South Carolina Law Enforcement Division and Officer Waters interviewed Gaskins on October 1, 1982 at the Kirkland Correctional Institution Infirmary. Gaskins told him that he had been a good friend to Tyner. He showed them a maroon colored address or date book. In opening the book to give Gaskins a letter which was inside, Officer Tallón saw the word “Tony” and a phone number which he recognized as that of Tony Cimo. It was seized.

We are of the opinion that the search and seizure of those items found in Gaskins’ cell as well as the address book and their introduction into evidence at the trial were proper. While we have held in State v. Ellefson, 266 S. C. 494, 224 S. E. (2d) 666, 668 (1976) that a prisoner does not lose all of his constitutional rights by reason of being incarcerated, at the same time a prisoner by reason of his very status does not retain all of the rights available to free persons in our society. The rights of a prisoner are fully discussed in an able opinion by Chief Justice Warren E. Burger in the case of Hudson v. Palmer, _ U. S. _, 104 S. Ct. 3194, 82 L. Ed. (2d) 393 (1984) and in Block v. Rutherford, _ U. S. _, 104 S.Ct. 3227, 82 L. Ed. (2d) 438 (1984). In Hudson, the Chief Justice enumerates many of the rights reserved for a prisoner. We hold that the search was reasonable; Gaskins had no right of an expectation of privacy and the exigencies of the circumstances warranted the action taken by the prison authorities.

The test of reasonableness is not capable of a precise definition. In each case there is required a balancing of the need of the particular search against the invasion of personal rights. The courts must consider the scope of the particular intrusion and the manner in which it is conducted as well as the justification for initiating it. At the time of the search, prison authorities were aware of the fact that a contraband explosive had been brought into the cell block. It became their duty in the interest of prison security to protect the rights of other inmates by solving the crime and to do everything reasonably possible to find the culprit and remove other explosives if any there be.

VII.

Counsel for Gaskins submits that the trial judge erred in restricting the cross-examination of State’s witness J.B. as to other incidents similar to the case at trial to which he had given contradictory statements. B. testified that he, at Gaskins’ request, delivered a plastic drinking cup with a speaker in the top part and a female electrical connection in the bottom part to Tyner a few minutes before the explosion and the ensuing death. He was questioned in October and, upon the advice of counsel, did not reveal that which had happened. Later in Janurary 1983 upon further advice of counsel he revealed that he had in fact delivered the instrument without knowing what it was. He admitted his inconsistent statements and admitted that he was serving two life sentences for two separate murders. The only purpose of the testimony which was excluded could have been to attack his credibility. He further admitted that he did not always tell the truth. He impeached himself. Assuming, arguendo, that the trial judge erred by so ruling, any error was harmless in view of B.’s admissions during cross-examination that he had fabricated stories and told lies in the past. Argument on this point is without merit.

VIII.

Gaskins next contends that the trial judge erred in his ruling on the scope of defense counsel’s direct examination of his own witness J.C. The exact question which Gaskins’ counsel sought to ask C. during direct examination was asked by the State and answered by C. during cross-examination. Error in the exclusion of evidence is not prejudicial where its effect would have been merely cumulative. We find no error.

IX.

Counsel for Gaskins submits that the trial judge erred in failing to require witness C. to take the stand in order to assert his Fifth Amendment privilege not to testify. We are of the view that his ruling is inconsistent with State v. Perry, 279 S. C. 539, 309 S. E. (2d) 9 (1983) and State v. McGuire, 272 S. C. 547, 253 S. E. (2d) 103 (1979) wherein the Court held:

[A] judge may not invoke a witness’s Fifth Amendment privilege; and, in any case, it is well settled that a witness who is not also a defendant can invoke the 'privilege only after the incriminating question has been put. [Emphasis added.]

State v. Perry, supra 309 S. E. (2d) at 10.

At the same time, we are of the opinion and find beyond a reasonable doubt that the error was harmless. For a discussion of harmless error see State v. Truesdale, Opinion Number 22176, Davis’ Advance Sheet No. 52, filed October 31, 1984. In the absence of the jury, C. was questioned before being excused. The gravamen of the testimony sought is reflected in questions and answers as follows:

Q [By Defense Counsel] MR. COLE, YOU HAVE INDICATED TO US IN THE PAST THAT YOU KNEW WHERE MR. GASKINS WAS AT THE TIME OF THE EXPLOSION, IS THAT CORRECT?

A YES, SIR.

Q AND HE WAS ON THE TIER?

A YES, SIR.

Q AND AFTER BEING ON THE TIER AFTER THE EXPLOSION, HE WENT DOWN TO THE ROCK? IS THAT CORRECT?

A YES, SIR.

C. was one of several prisoner witnesses who testified relative to what took place immediately or soon after the explosion. His testimony would have been cumulative at most and we are convinced that the error on the part of the judge in failing to require him to take the stand was harmless beyond a reasonable doubt.

Gaskins submits that the trial judge committed reversible error by injecting personal opinion and improperly commenting on the facts of the case, and also in interfering with his right to a fair trial by interrupting and interfering with the questioning of witnesses throughout the trial. There is no question but that a judge is entitled to participate in the trial of a case. It is only when and if his participation prejudices the accused person’s right to a fair trial that a new trial must be granted. The duties and limitations of a trial judge are stated by Mr. Justice Hydrick in State v. Anderson, 85 S. C. 229, 67 S. E. 237, at 238 (1910) as follows:

A grave responsibility rests upon a trial judge. It is his duty to see to it that justice be done in every case, if it can be done according to law; and, if he thinks that the attorney for either party, either from inadvertence or any other cause, has failed to ask the witnesses the questions necessary and proper to bring out all the testimony which tends to ascertain the truth of the matter under investigation, we can see no legal objection to his propounding such questions; but, of course, he should do so in a fair and impartial manner, and should not by the form or manner of his questions express or indicate to the jury his opinion as to the facts of the case, or as to the weight or sufficiency of the evidence.

In the following cases it was held that the Court’s examination did not constitute prejudicial error: State v. Atkinson, 33 S. C. 100, 11 S. E. 693; State v. Jackson, 87 S. C. 407, 69 S. E. 883; State v. Hyde, 90 S. C. 296, 73 S. E. 180; State v. Mitchum, 150 S. C. 341, 148 S. E. 184.

This was a long, drawn out case involving many issues. From a review of all of the participation alleged to be prejudicial cited by counsel, we conclude that the trial judge did not participate in the trial beyond that permitted by the precedent established in this State.

XI.

Next Gaskins contends that a fair trial was denied him because of the solicitor’s argument concerning certain evidence being undisputed. He argues that this was an improper comment on Gaskins’ failure to testify. Defense counsel did not object to this argument. We disagree.

Any alleged error on the part of the solicitor’s closing argument must be viewed in the context of the entire record. The accused person bears the burden of demonstrating that the argument denied him a fair trial in the determination of his guilt or innocence. The record reflects Gaskins received a fair trial, and he has not established that the argument was prejudicial. In context of the entire record and its overwhelming evidence of guilt, even if the argument were improper, it was harmless error beyond a reasonable doubt.

XII.

Gaskins submits that the trial judge erred in instructing the jury on the presumption of malice. His charge in relative part is as follows:

Malice may be presumed or implied from the willful deliberate and intentional doing of an unlawful act without just cause or excuse; but if facts proven are sufficient to raise a presumption of malice, such a presumption may be rebutted or overcome by other evidence. And then it is for you, the jury, to determine from all the evidence whether or not malice has been proved beyond a reasonable doubt. I charge you further that while malice is presumed from the use of a deadly weapon or from a dangerous instrument — that while malice may be presumed from a deadly weapon or from a dangerous instrument yet where circumstances relating and surrounding the incident are brought out, then the presumption vanishes and malice again must be proven to you beyond a reasonable doubt.

This was the conventional charge used without contest over the years. In more recent rulings of the United States Supreme Court and in turn rulings by this Court, it has been held that use of the words “presumption,” “rebuttable,” “reasonable explanation,” and “unless the contrary be proved” are unacceptable. It would appear at first blush that reversible error is present. See State v. Elmore, 279 S. C. 417, 308 S. E. (2d) 781 (1984) and State v. Lewellyn, 198 S. C. 199, 314 S. E. (2d) 326 (1984). Harmless error does not require a new trial.

Murder is defined by § 16-3-10 Code of Laws (1976) as follows: “Murder is the killing of any person with malice aforethought, either express or implied.” While malice is a necessary ingredient of murder, it is not relevant until and unless it be found that the accused person did in fact wrongfully kill the victim. Here the jury has found that Gaskins killed Tyner. There are only four ways in which Tyner, or any other person, could die: (1) suicide (2) accidental death, (3) natural causes, and (4) at the hands of another. There has never been any contention throughout the trial of this case, on anyone’s part, that the killing was suicide, accidental or from natural causes. Patently, Tyner died at the hands of another, found to be Gaskins. When one is found to have wrongfully taken the life of another, the element of malice becomes important in determining the degree of unlawfulness. If the unlawful killing is without malice, the offense is reduced to manslaughter under § 16-3-50. If the unlawful killing is through criminal negligence, the offense is involuntary manslaughter under § 16-3-60. If the killing is in self-defense, there is no crime. Here the offense is murder or nothing.

The question we are called upon to answer is: Did the ailing instruction on the issue of malice so infect the entire trial that the resulting conviction violates due process? Stated another way: Might the charge considered as a whole be interpreted by the jury as shifting the burden of proof on the element of malice to the accused? Or still another way: Might the jury have relied on the presumption rather than the evidence?

I charge you first of all that it’s a cardinal rule of law that everyone who is charged with a crime is presumed to be innocent until proven guilty by the state beyond a reasonable doubt. No defendant has to prove his own innocence. He is presumed innocent. And the state has the entire burden of proving to you beyond a reasonable doubt that he is guilty.

and

The state has to prove along with all the other elements of any crime that he was there actively participating in the crime either actually or constructively present.

and

I told you earlier when we drew the jury that the defendant did not have to testify. He doesn’t have to offer any evidence. The fact that he did not testify should not enter into your deliberation in any manner. You should not consider that because he has plead not guilty, the burden is upon the state to prove him guilty beyond a reasonable doubt.

In addition to the facts cited hereinabove, the jury had before it evidence of Gaskins’ attempt, but failure, to poison Tyner. After he had failed in his effort to kill by poisoning, he talked in a recorded telephone conversation with Cimo which is in evidence and said of the followng:

GASKINS: It just make ’em sick as hell and that’s it. So, I come up with something, told him [Referring to G.M.] that I would call you, if you wanted me, and tell you if you’ll send it, it can’t be no damn making sick on it. I need — I need one electric cap and as much of a stick of damn dynamite as you can get. I’ll take a damn radio and rig it into a bomb to where he plugs it up, that son of a bitch’ll go off and it won’ be damn coming back on that.

GASKINS: That’s about the best way that I can figure to get him. Because everything we get him just looks like it just makes him sick as hell and that’s it. But one electric cap and as much of a stick you can get in as pure as you can get it, he told me to call you and maybe over the weekend you can find one stick somewhere and get it to me and damn if I can’t fix him up.

Sometime after Tyner was killed, Gaskins sent State’s witness J.B. two letters in which he undertook to persuade B. to go to a priest named Frankie San and confess that he (B.) was responsible for Tyner’s death. He asked B. to tell the priest that he (Gaskins) had nothing to do with it. It was Gaskins’ theory that the priest could then testify in court that someone other than Gaskins had admitted the murder while simultaneously, by reason of the priest privilege, he could not be required to reveal who admitted the killing. This would tend to exonerate Gaskins without implicating B. in court. B. refused to co-operate and the letters were introduced in court and considered by the jury.

The Supreme Court of the United States has refused to hold that harmless error vitiates the trial and requires a retrial. This killing is an execution-style slaying of the type referred to by Chief Justice Burger in Connecticut v. Johnson, 460 U. S. 73, 103 S. Ct. 969, 74 L. Ed. (2d) (1983). The jury has found that Gaskins wrongfully killed Tyner. Under the facts of this case it would be folly to order a new trial for the purpose of determining whether the killing was done with malice or without malice.

Any debate on the malice issue at the guilt stage of the trial was conclusively resolved at the penalty stage when Gaskins said to the jury: “And I am guilty of participating in it. But I was not guilty in the final preparation of that. I was suppose to have received the bomb. I was to done it. But I was bypassed at the last minute on that.”

We hold that the charge as to malice was harmless error beyond a reasonable doubt.

XIII.

The next question submitted to the Court, as taken from Gaskins’ Brief, is as follows:

The Trial Court should have excluded from evidence, in the sentencing portion of the trial, Appellant’s 1978 confession, the details of the Appellant’s prior murder convictions, as well as the photographs of the Appellant’s prior murder victims.

The objection relates to the testimony of former Solicitor Kenneth Summerford. Summerford was the prosecuting attorney in the State Court in Florence. In 1978 he called Gaskins to trial for the murder of Johnny Knight wherein the death penalty was sought. During the proceedings, Solicitor Summerford, Gaskins and Gaskins’ attorney entered into a plea bargain whereby Gaskins confessed to seven murders he had committed prior to 1978 in return for life sentences and no further prosecution as to others. Over a period of four days, Gaskins gave Summerford a 341-page detailed description and confession of the murders of Doreen Dempsey, her infant daughter Michelle Dempsey, John Henry Sellers, Jesse Judy, Avery Howard, Diane Neeley and Barnwell Yates. The confessions was made a part of the court record in the Florence court and served as a basis for Gaskins’ seven guilty pleas to murder.

The State introduced into evidence the indictments and guilty pleas. Summerford was permitted to read to the jury excerpts from Gaskins’ confessions in which he described the various murders. In addition, photographs of victims were made exhibits.

The United States Supreme Court has held that “... consideration of the character and record of the individual offender and the circumstances of the particular offense [are] a constitutional indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U. S. 280, 96 S. Ct. 2978, 49 L. Ed. (2d) 944 (1976). Also see Barefoot v. Estelle, 463 U. S. 880, 103 S. Ct. 3383, 77 L. Ed. (2d) 1090 (1983) and State v. Plath, 281 S. C. 1, 313 S. E. (2d) 619 (1984). We find no error in the judge’s allowing this evidence to go to the jury in the sentencing phase.

Additionally, counsel for Gaskins argues that this evidence should not have been permitted because the State failed to provide him with the confessions and photographs used in aggravation prior to the commencement of the trial. Admittedly Gaskins was advised, as required by Code § 16-3-20(B), that the State would rely upon an aggravating circumstance among others as follows: “Murder was committed by the defendant who had a prior conviction for murder.” In State v. Plath, 277 S. C. 126, 284 S. E. (2d) 221 (1981), we held that the solicitor need not provide in writing a list of all the evidence he intends to use in aggravation. The 341-page confession was given to Gaskins as soon as it was obtained from the Florence Court which was well into the middle of the trial. Prejudice can hardly be argued because Gaskins knew everything that was in the confession and knew about the photographs long before the trial began. There could be no surprise. There was no error in the failure of the State to give Gaskins a copy of the confession earlier.

In finding no error, we have taken into consideration the argument of counsel that Rule 103 and § 19-11-50 and § 19-1-80 of the Code have not been honored and applied. We hold that these two Code sections are simply inapplicable. Rule 103 allows the judge discretionary authority as follows:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. (Emphasis added.)

We also find no error in the admission of evidence of witnesses Fowler, Young and Henderson. Certainly, there was no prejudicial error and we so find beyond a reasonable doubt.

Counsel’s argument that the statement given to the Court in Florence confessing the seven murders was not voluntary is not substantiated by the record.

We have considered the argument of counsel to the effect that the photographs should have been excluded because they were inflammatory and find the same without merit.

Counsel has referred to some of the proof as involving non-statutory aggravating circumstance. We think the designation erroneous. All of the evidence was properly admitted because it related to the aggravating circumstance of a previous murder conviction. It should be noted that the State does not rely on the aggravating murder evidence alone and submits that the other aggravating circumstance is sufficient for the finding that the death penalty is the appropriate sentence.

XIV.

Gaskins contends that the trial judge erred in the sentencing phase by allowing former Solicitor Summerford to testify about the reversal of Gaskins’ prior death sentence. He further argues error by the trial judge in allowing Summerford to testify about his thought processes in accepting a plea bargain from Gaskins in several earlier murder cases. Gaskins submits that his testimony caused the jury to believe that its responsibility in sentencing him was not final and thereby constituted an arbitrary factor inducing the jury to impose the death penalty. We disagree.

The trial judge properly exercised his discretion by permitting former Solicitor Summerford to testify that this court had reversed Gaskins’ prior death sentence and why Summerford elected to accept Gaskins’ guilty pleas for the other murders. This testimony was relevant to the sentencing determination because it relates to Gaskins’ record of prior criminal convictions for murder. Testimony concerning such prior criminal convictions is admissible as additional evidence during the sentencing phase of a capital case. State v. Plath, 281 S. C. 1, 313 S. E. (2d) 619 (1984). See Woodson v. North Carolina, supra.

The reversal of Gaskins’ prior death sentence is a matter of public record. Summerford’s testimony merely apprised the jury of Gaskins’ prior record and the outcome of those prosecutions. Nothing in his testimony can be construed as an attempt to minimize the jury’s responsibility in imposing a sentence. Also, nothing in his testimony indicated Summerford’s personal opinion about the decision to seek the death penalty in the present case. We find the testimony was properly admitted.

XV.

Gaskins submits that the trial judge erred in allowing into evidence racial prejudice as a characteristic of Gaskins. Gaskins is a white man; the deceased, Tyner, was a black man. The jury was composed of a mixture of both black and white citizens.

In the confessions referred to hereinabove given by Gaskins to Kenneth Summerford, the former solicitor who handled the several guilty pleas of murder, Gaskins referred to the father of one of the murdered children as being a “light-skinned nigger”. On another occasion in the statement, Gaskins offered a reason for killing Doreen Dempsey: “She thought more of a nigger than a white man.”

Selection of the jury consumed about four weeks. Each juror was questioned at length during voir dire and expressed his or her neutrality on the issue of racial prejudice. The trial judge has considerable latitude in the manner in which he selects an unbiased jury. He made great effort to assure that the jury which was chosen could give Gaskins a fair trial regardless of the fact that he was a white man accused of murdering a black man. No prejudice has been shown and we find the exception without merit.

XVI.

The trial judge is charged with improperly denying Gaskins’ motion for a mistrial because during the sentencing phase, he refused to exclude evidence of other crimes which had not resulted in convictions. Former Solicitor Summerford testified about confessions which Gaskins gave him. Included in the confessions of the several murders was a statement by Gaskins that he had stolen a boat, motor, and trailer. Also included in the confessions was a statement by Gaskins relative to the location of his niece’s burial. Counsel for Gaskins argues that these portions of Summerford’s testimony called to the jury’s attention crimes for which Gaskins had not, in fact, been convicted. An appropriate curative instruction was given relative to the burial of Gaskins’ niece. “When the record shows that objectionable evidence was either disallowed or struck out by motion and the jury instructed to disregard it, the appellant cannot complain.” State v. Stroman, 281 S. C. 508, 316 S. E. (2d) 395 (1984).

Inasmuch as it was appropriate to tell the jury that Gaskins had admitted maliciously killing seven people and had been convicted of maliciously killing an eighth, it is difficult to rationalize that there was prejudice in his own comment relative to either the theft or the burial of his niece. If this be error, which it was not, we find it to be harmless beyond a reasonable doubt.

XVII.

Gaskins argues that allowing evidence of guilt of prior murders in the sentencing phase of the trial was error because “the use of prior convictions for murder in the sentencing portion of a trial as a factor in aggravation is a violation of the double jeopardy clause of the Sixth Amendment of the Constitution of the United States” and “in violation of the Eighth and Fourteenth Amendments in that the jury’s attention was not focused on the particularized matter of the crime and the particularized characteristics of the defendant.” The exception is patently without merit. A defendant’s record of previous criminal convictions has always been deemed relevant in the imposition of sentences. Gaskins is not being tried twice nor punished twice for the same crime. If one has heretofore not been guilty of a crime, it is appropriate that the judge take this into consideration. In like fashion, if one has been guilty of crimes heretofore, the sentencing authority may and should consider it. We find no error.

XVIII.

At the sentencing phase of the trial, Gaskins’counsel offered in evidence a confession given by Tyner to the effect that he killed Mr. and Mrs. Moon. The confession was not allowed. It is submitted that this confession should have been admitted as a mitigating circumstance. Apparently the gist of the argument is that if he could show that Tyner should have died because of his treatment of the Moons, it would justify to some degree Gaskins’ execution of him. Obviously, the jurors knew that the State of South Carolina had determined that Tyner should be executed. Nothing Gaskins could prove would more conclusively show that Tyner was culpable. Be that as it may, Tyner was entitled to live until the State of South Carolina carried out the order of execution. The fact that the State had conclusively found that Tyner should be executed did not entitle Gaskins to kill him. We find no error in excluding Tyner’s confession.

XIX.

Gaskins’ final exception relates to the judge’s charge to the jury in the sentencing phase. He submits that the judge instructed the jury that a reasonable doubt standard was applicable to mitigating circumstances. We have read the charge and considered it as a whole. We find no error. The trial judge’s charge must be viewed as a whole with the words considered in their context. State v. Thompson, 278 S. C. 1, 292 S. E. (2d) 581 (1982).

The purpose of a charge is to enlighten the jury. Assignment of error may not be predicated upon isolated excerpts which, standing alone, might be misleading. The judge talked at length to the jury about aggravating and mitigating circumstances. He made it patently clear: (1) that if aggravating circumstances were not proved, a death penalty could not be recommended; (2) that a death penalty could not be recommended unless at least one aggravating circumstance was proved; (3) that if statutory or non-statutory mitigating circumstances were found, a life sentence would be appropriate; (4) that the jury had full discretion, even though aggravating circumstances be found and no mitigating circumstances be proved to impose a life sentence rather than death. The jury found two aggravating circumstances; it found no mitigating circumstances; it recommended a death sentence.

From a reading of the whole charge, we find that the jury could not have been mislead about its duties and the applicable law. We find no error.

XX.

Pursuant to Section 16-3-25(0), Code of Laws of South Carolina (Cum. Supp. 1978), it is the duty of this Court to review the record and determine with regard to the sentence imposed:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any arbitrary factor, and

(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in § 16-3-20, and

(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Upon a review of the record, we concur with the ruling of the trial judge when he said: “I find as an affirmative fact that the evidence of the case warrants the imposition of the death penalty and that its imposition is not a result of prejudice, passion, or any other arbitrary factor.”

We further find that the evidence overwhelmingly supports the jury’s findings beyond a reasonable doubt that the statutory aggravating circumstances of “Murder was committed by a person with a prior record of conviction of murder” and “The offender caused or directed another to commit murder or committed murder as an agent or employee of another person” as enumerated in S. C. Code Ann. Section 16-3-20 (Cumm. Supp. 1978) were proved.

The evidence quoted hereinabove describes the gruesome plans and details by means of which Gaskins brought about the death of Tyner and need not be repeated here. Gaskins is obviously a mature person of considerable ability and cunning. His conversations on the telephone and his carrying out of the murder plan as well as his efforts after Tyner’s death to lure the State’s witness into helping to exonerate him involves a scheme which is about as wicked as is conceivable.

We find that the penalty imposed is not disproportionate to the penalty imposed in other cases under the comparatively new death penalty statute. The jury had ample opportunity to weigh all of the evidence that might relate to mitigating circumstances and found none offsetting the two aggravating circumstances. We agree.

We have further examined and researched past death penalty cases in this State tried under the current statute in an attempt to determine whether the sentence of death is excessive or disproportionate to the'penalty imposed in similar cases, considering both the crimes and the defendants. South Carolina Code Ann. Section 16-3-25(C)(3).

Cases tried in this State under the death penalty statute resulting in capital punishment heretofore, involved factual situations, and accused persons, similarly atrocious to those involved in this case. It is our observation that an unanimous jury in South Carolina has ordered the death penalty in only those cases where the proof of facts is virtually undebatable and the nature of the wrongful killing is such as to shake the conscience of the community. The facts are not the same in any two cases and, accordingly, our review of the facts relate largely to degree of culpability of the defendants and the viciousness of the killing. In the case at hand, there is no semblance of an excuse for the wrongful killing, nor does the record reveal any facts relative to the accused persons themselves that would warrant leniency. Our comparison includes: State v. Yates, 280 S. C. 29, 310 S. E. (2d) 805 (1982); State v. Gilbert, 277 S. C. 53, 283 S. E. (2d) 179, cert. den. 456 U. S. 984, 102 S. Ct. 2258, 72 L. Ed. (2d) 863 (1982); State v. Shaw, 273 S. C. 194, 255 S. E. (2d) 799, cert. den., 444 U. S. 957, 100 S. Ct. 437, 62 L. Ed. (2d) 329 (1979); Roach v. South Carolina, 444 U. S. 1026, 100 S. Ct. 690, 62 L. Ed. (2d) 660 (1980); State v. Woomer, 276 S. C. 258, 277 S. E. (2d) 696 (1981), 278 S. C. 468, 299 S. E. (2d) 317 (1982); and State v. Thompson, 278 S. C. 1, 292 S. E. (2d) 581, cert. den., 457 U. S. 1112, 102 S. Ct. 2917, 73 L Ed. (2d) 1323 (1982); State v. Plath, et al., 281 S. C. 1, 313 S. E. (2d) 619 (1984); State v. Koon, 278 S. C. 528, 298 S. E. (2d) 769 (1982), and Opinion Number 22075, Davis’ Advance Sheet No. 19, filed April 3, 1984; State v. Patterson, Opinion Number 22168, Davis’ Advance Sheet No. 50, filed October 10, 1984; State v. Truesdale, supra; State v. Chaffee and Ferrell, Opinion Number 22182, Davis’ Advance Sheet No. 54, filed November 13, 1984.

In addition to considering all issues raised by counsel, we have examined the entire record because of the doctrine of in favorem vitae to ascertain if there are reasons to upset the jury’s verdict notwithstanding any failure of counsel to raise other issues. We have found no reversible error. The conviction and sentence of the Appellant Donald Henry Gaskins is accordingly

Affirmed.

The appellant’s brief states C.R.J. rather than W.L.R., but cites Transcript pages of voir dire for R. The arguments are obviously addressed to the disqualification of R.

916 F.2d 941, decided October 15, 1990

Donald Henry GASKINS, Petitioner-Appellant, v. Kenneth D. McKELLAR, Warden, Central Correctional Institution; Attorney General of South Carolina, T. Travis Medlock, Respondents-Appellees.

No. 89-4011.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1990.

Decided Oct. 15, 1990.

Rehearing and Rehearing In Banc Denied Nov. 16, 1990.

John Henry Blume, III (argued), South Carolina Death Penalty Resource Center, Columbia, S.C., for petitioner-appellant.

Frank Louis Valenta, Jr., Asst. Atty. Gen., Donald J. Zelenka, Chief Deputy Atty. Gen., T. Travis Medlock, Atty. Gen. (on brief), Columbia, S.C., for respondents-appellees.

Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges.

[OPINION BY PHILLIPS, Circuit Judge: type=majority]

PHILLIPS, Circuit Judge:

Donald Henry Gaskins, a South Carolina prison inmate under sentence of death for capital murder, appeals the district court’s denial of an evidentiary hearing and dismissal of his 28 U.S.C. § 2254 petition for failure to show entitlement to federal collateral relief. We affirm.

Gaskins’ victim, fellow death row inmate Rudolph Tyner, had been sentenced to death for killing a Mr. and Mrs. Moon during a robbery. Tony Cimo, a stepson of the Moons, seeking to avenge the murders, contacted an acquaintance who put him in touch with Gaskins, who was serving ten life sentences, nine for murder and one for burglary. Telephone toll records produced at trial showed that thereafter Gaskins made a number of collect calls either to Cimo or to Cimo’s acquaintance who had made the contact. Some of the recorded calls revealed that, after numerous failed attempts to poison Tyner, Gaskins resolved to kill Tyner by means of an explosive device.

Ultimately, Gaskins succeeded. J.A.B., a prisoner assigned to deliver meals to death-row inmates, testified that on the afternoon of the murder, Gaskins asked B. to deliver a device to Tyner. B. described the device as a radio-type speaker built into a plastic cup through which, Gaskins led B. to believe, Tyner could communicate with Gaskins in the adjoining cell rather than having to yell through a common vent. The bottom of the cup had a female-electrical socket adapted for connection to an extension cord. Along with the cup’s delivery B. was to tell Tyner that “ ‘the wire was in the bottom vent in his cell.’ ” See State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132, 136 (1985). Presumably, Tyner then found the wire in the common vent and plugged it into the cup-speaker. The cup exploded, blowing off part of Tyner’s head and killing him. B. testified that after the explosion he went to Gaskins’ cell and saw Gaskins pulling a wire from the common vent in his own cell.

Gaskins was convicted and sentenced to death by a jury, and his conviction and sentence were affirmed on direct appeal. See State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132 (1985), cert. denied, 471 U.S. 1120, 105 S.Ct. 2368, 86 L.Ed.2d 266 (1985). Efforts to obtain state post-conviction relief were unavailing. See Gaskins v. State, No. 85-CP-40-3466, Letter Order (S.C. Jan. 7, 1987), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 382 (1987).

This § 2254 petition, raising several claims, followed and was summarily dismissed by the district court. A number of issues and sub-issues are raised on appeal. Of these, one involves the denial of an evidentiary hearing respecting the admission in evidence at sentencing of an earlier confession to other murders, one involves a claimed denial of due process by virtue of trial judge bias, two involve alleged constitutional violations in jury selection, three involve trial court evidentiary rulings allegedly impacting on the trial’s fundamental fairness, one involves prosecutorial misconduct, two involve guilt-phase jury instructions, and five involve alleged errors during the trial’s sentencing phase.

We address each of these in turn.

Gaskins contends that he was erroneously denied an evidentiary hearing to establish his claim that portions of a confession given by him in connection with an earlier, bargained plea of guilty to several unrelated murders were unconstitutionally admitted at the sentencing phase of his Tyner murder trial.

The district court summarily dismissed this invalid-use-of-confession claim on the stated basis that “[tjhere is no reason, and no precedent, for arguing the confession’s invalidity for the first time during the sentencing phase of a trial for a subsequent crime five years later ... [rather than] in a collateral proceeding directed at those prior crimes.” On this appeal, the parties have joined issue on this threshold question of the habeas court’s power to entertain this claim. Because it is a difficult issue with broad and unclear implications, and because there is an alternative basis for upholding the summary dismissal, we decline to rest decision upon the district court’s stated basis for dismissing the claim.

To address the alternative basis, it is necessary first to identify the exact nature of Gaskins’ constitutional claim. We take it to be that because the earlier confession was coerced, hence involuntarily given, hence unconstitutionally obtained, its use in evidence in the sentencing phase of the later Tyner trial violated Gaskins’ eighth amendment right to a “reliable] ... determination that death is the appropriate punishment.” Johnson v. Mississippi, 486 U.S. 578, 584, 108 S.Ct. 1981, 1986, 100 L.Ed.2d 575 (1988) (death penalty predicated in part on prior conviction vacated because coerced confession violates eighth amendment) (quoting Gardner v. Florida, 430 U.S. 349, 363-64, 97 S.Ct. 1197, 1207-08, 51 L.Ed.2d 393 (1977)).

The claim is rested on the undisputed fact that at Gaskins’ sentencing hearing, a state solicitor was allowed, over Gaskins’ timely objection, to read portions of the earlier confession in which Gaskins had admitted committing seven other murders. Though in personally arguing his case to the sentencing jury Gaskins specifically conceded that, “I'm guilty of some of [the murders], yes. I do not deny that,” J.A. at 593, his contention apparently now is that he was coerced into confessing to more than he later conceded to the sentencing jury. From this, the argument runs that the sentencing jury’s determination could be shown to be constitutionally unreliable if, as he claimed but was not allowed to establish by evidence, the jury thought him guilty of all the seven murders rather than the “some” lesser number that he specifically conceded. Given this possibility, Gaskins contends that the district court erred in failing to give him an evidentiary hearing to attempt to establish his claim of constitutional unreliability.

This argument fails because of the claim’s facial lack of merit. Where the allegations in a habeas petition are palpably incredible, the petition properly may be dismissed without affording any evidentiary hearing. See Blackledge v. Allison, 431 U.S. 63, 75-76, 97 S.Ct. 1621, 1629-30, 52 L.Ed.2d 136 (1977). Here the ultimate allegation, on which habeas relief depended, was that the sentencing jury’s misperception of the exact number of unrelated murders that Gaskins had committed made its imposition of the death penalty constitutionally unreliable. Under the circumstances, the district court properly could have viewed this as an allegation incredible on its face, and on that basis summarily dismissed the claim. Even assuming the truth of the predicate allegation — that the earlier confession had admitted more murders than Gaskins actually had committed — it defies belief that a jury to which he had just renewed his confession to at least an indefinite “some” of the seven earlier confessed would have acted differently (more reliably) had it been aware of the exact mathematical disparity between those actually committed and those confessed.

We might also affirm the summary dismissal of this claim on the alternative basis of a roughly parallel harmless error analysis. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (harmless error analysis appropriate in review of capital sentencing proceeding). Here the record shows that the state sentencing jury found two aggravating factors: prior murder convictions and murder for hire. It also reveals that the jury had before it, in addition to the earlier confessed murders, still another prior conviction of murder by jury verdict. Both this latter conviction and the murder-for-hire finding stand unchallenged. As earlier indicated, the most favorable result that could be achieved by an evidentiary hearing to challenge the sentencing jury’s finding of prior murders as an aggravator would be a demonstration that the jury erroneously believed that Gaskins had committed seven confessed murders, when he had only committed “some” number less than that. When it is recalled that the jury also had before it still another unchallenged murder conviction by jury trial, it is obvious that any error in denying an evidentiary hearing with such a limited potential was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

Ill

We next consider the district court’s dismissal of Gaskins’ claim that the state trial judge’s demonstrated bias and lack of impartiality made his state trial fundamentally unfair and therefore violated his constitutional right to due process.

Fourteenth amendment due process requires, at a minimum, an impartial judge and jury. See Anderson v. Warden, Md. Penitentiary, 696 F.2d 296, 299 (4th Cir.1982). Gaskins makes a number of arguments supporting his contention that the state trial judge demonstrably was lacking in the requisite degree of impartiality to ensure due process. First, he points to twenty-two instances where the state trial judge allegedly improperly questioned witnesses. Second, he points to a newspaper article published after the guilt phase of Gaskins’ trial, but before sentencing, in which the trial judge, in response to a reporter’s question whether the judge thought Gaskins would receive the death penalty, replied, “what can you give a man who has got ten life sentences.”

We are persuaded upon a careful review of the record that the judge’s conduct did not deny Gaskins a constitutionally fair trial.

Of the twenty-two alleged instances where the trial judge questioned witnesses, Gaskins asserts the following as examples of the most “egregious” demonstrations of impermissible bias. These occurred during the questioning of state’s witness J.B. and Gaskins’ chief rebuttal witness to B.’s testimony, J.C.

It will be recalled that B. was the inmate who, allegedly at Gaskins’ behest, actually delivered the bomb to Tyner, and who testified to that effect at trial. The allegedly prejudicial conduct occurred when the state attempted to introduce through B. certain incriminating letters that Gaskins had given B. After B. testified that Gaskins had given him the letters, but before the letters were introduced, the trial judge conducted a hearing outside the hearing of the jury to determine the letters’ admissibility. When the jury returned, the trial judge, even though B. had already testified to the source of the letters, asked B. to “reiterate where he got the documents from for the jury." J.A. at 214.

During B.’s cross-examination, Gaskins attempted to establish that the letters were not incriminating. After sustaining an objection to a question concerning the intent of a phrase in the letter, the trial judge asked B. directly what the letters meant to him. When B. responded that they meant that Gaskins was trying to talk B. into “taking the rap for it,” the trial judge commented, “[tjhat’s right. That’s what he thought.” J.A. at 269.

During the state’s cross-examination of Gaskins’ rebuttal witness, J.C., C. testified that B. told C. that B. and others were plotting to get Tyner. When C. testified that B. did not reveal other members of the plot, the following colloquy occurred between the trial judge and C.:

THE COURT: You didn’t ask [B. who the other members of the plot were?]

CAISON: No, he said ...

THE COURT: It’s such a big event, weren’t you curious?

CAISON: What he told me, he said ...

THE COURT: Tell the truth now. Did you ask him?

CAISON: I asked him what it was about.

THE COURT: Did he tell you?

CAISON: No sir, he ...

THE COURT: He wouldn’t tell you?

CAISON: He told me the less that I knew the better off I was.

THE COURT: He delivered the explosives for somebody else?

CAISON: I guess so. He didn’t tell me that.

THE COURT: He didn’t tell you that. Tell the jury what he told you?

J.A. at 336-37.

Later, after C.’s redirect testimony concerning B.’s alleged involvement in an earlier attempt to poison Tyner, the trial judge again engaged in a colloquy with C.:

MR. SWERLING: Who told you not to go on Death Row [the day Tyner was killed]?

CAISON: J.B.

THE COURT: Why did he tell you that?

CAISON: He didn’t want me to go on there to know about nothing. He wanted me to stay away from death row.

THE COURT: All right. What did he have against Rudolph Tyner? Why did he want to kill him?

CAISON: For the money.

k ¡Ü * * ¡k *

THE COURT: [Where did the money come from?]

¡k ¡k ¡k *k *k *k

CAISON: I don’t know. He didn’t say.

THE COURT: And you didn’t ask?

CAISON: He wouldn't have told me anyhow.

THE COURT: Why didn’t you ask him who paid him money?

2j! sk sk sk sk *

CAISON: Well, when somebody don’t want to answer your question, you best leave them alone.

J.A. 343-47.

Gaskins argues that the trial judge’s engagement with B. and C. reflected to the jury that B.’s theory, and not C.’s theory, was credible. This, argues Gaskins, rendered the trial fundamentally unfair, especially when coupled with the following accessory-before-the-fact jury instruction:

[Y]ou must be convinced as I told you that the Defendant here aided, counseled, or otherwise procured J.B. to commit the murder of Rudolph Tyner and that the Defendant was not present either actually or constructively.

J.A. 446. The instruction, argues Gaskins, simply incorporated the state’s theory of the offense into the charge.

Although these various instances of involvement by the trial judge might, in isolation, have damaged Gaskins’ ability to discredit B.’s testimony, taken in the context of the entire trial, the trial judge’s involvement did not render the trial fundamentally unfair. The record evidence of Gaskins’ involvement in the plot to kill Tyner, even without B.’s testimony, was overwhelming. We therefore hold that any error in the trial court’s involvement was harmless beyond a reasonable doubt. See Anderson, 696 F.2d at 299. Moreover, we fail to understand how the disputed jury instruction was in any way erroneous and we are directed to no case law to that effect. On the evidence of record, this was a proper instruction concerning what the jury had to find before it could convict Gaskins of murder or accessory before the fact to murder.

Finally, respecting the trial judge’s alleged statement to the newspaper, although we seriously question the propriety of such a statement if actually made, there is no evidence that the newspaper was read by any members of the sequestered jury or that by making the statement the trial judge allowed arbitrary factors to enter into the jury’s deliberation. The judge himself did not of course decide the sentence to be imposed.

We therefore affirm the district court’s rejection of the claim of a denial of due process by virtue of the trial judge’s lack of impartiality.

We next consider related claims respecting the jury selection process.

Of ten peremptory challenges available to Gaskins, three were exercised to exclude jurors R., R., and C.. Gaskins argues that, for various reasons, the trial court erroneously refused to excuse these jurors for cause. Of the jurors who did sit, Gaskins argues that the trial court erroneously refused to excuse juror D. for cause.

Gaskins rightly makes no claim that requiring him to use peremptory challenges to exclude jurors R., R., and C. violated his fourteenth amendment right to due process by arbitrarily depriving him of the full complement of peremptory challenges allowed by South Carolina law. See Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). The crux of Gaskins’ claim in this regard is that he was denied his sixth amendment right to an impartial jury.

“Any claim that the jury was not impartial ... must focus ... on the jurors who actually sat” and cannot be established simply by showing the loss of a peremptory challenge. Id. at 86, 108 S.Ct. at 2277. Accordingly, we examine Gaskins’ claim in light of the jurors who actually sat.

Of the jurors who actually sat, Gaskins only challenges the impartiality of juror D., whom Gaskins unsuccessfully challenged for cause but did not then challenge peremptorily. D. admitted on voir dire that his “honest opinion is that [Gaskins] was found guilty, convicted of those earlier murders, [and] he should have been executed at that time.” J.A. 110. Moreover, upon questioning by the trial court, D. stated that, if Gaskins were found guilty of Tyner’s murder, and that if it were shown that Gaskins had murdered before, D. would be predisposed to impose a death penalty. Though he concedes, that D. was capable of impartially determining guilt or innocence, Gaskins contends that D. should have been excused for cause because D.’s ability to consider a life sentence would be substantially impaired by his belief that Gaskins should have received the death penalty for the previous murders.

While it may be true that D. was predisposed in favor of the death penalty, we find no constitutional error in the trial court’s refusal to exclude him. First, it is important to note that Gaskins elected not to use an available peremptory challenge to remove D.. Though not dispositive, this is some indication that, at the time, the trial judge and Gaskins, both of whom had opportunity to observe D.’s demeanor, felt that D. would act impartially. The controlling principle here is that “the most that can be demanded of a venireman ... is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed.” Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776 (1968) (emphasis in original). Our examination of D.'s voir dire testimony convinces us that the district judge did not err in concluding that he was not irrevocably committed. At numerous times during questioning, D. stated that he could give a life sentence, even in the presence of aggravating circumstances. D. stated that, though he could not with certainty say that the prior conviction would not affect his thoughts on sentencing, when it came time actually to impose the death sentence, he did not know how he would vote. Under the circumstances, we cannot say that D.’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980).

Accordingly, we agree with the district court that the trial court’s refusal to dismiss D. for cause did not violate Gaskins’ sixth amendment right to an impartial jury.

During the course of the trial, the trial court made three evidentiary rulings which, Gaskins argues, rendered his trial fundamentally unfair. The first involved Gaskins' cross-examination of J.B.; the second involved Gaskins’ direct examination of J.C.; the third involved allowing a material witness to assert the fifth amendment.

During cross-examination of B., Gaskins sought to discredit B. with questions concerning B.’s attempts to blame on others the two prior murders of which he had been convicted. This evidence, argues Gaskins, constituted not only an attack on B.’s credibility, but would also have buttressed Gaskins’ theory that B., not Gaskins, had conceived and executed Tyner’s murder. The trial court excluded this evidence based upon the general South Carolina rule that only the fact of a conviction of a crime of moral turpitude is admissible. On appeal, the South Carolina Supreme Court held that, to the extent the trial court’s ruling was erroneous, such error was harmless. See Gaskins, 326 S.E.2d at 139-40. We agree.

Absent “circumstances impugning fundamental fairness or infringing specific constitutional protections,” admissibility of evidence does not present a federal question. Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960). Nevertheless, the defendant has a fundamental right to effective cross-examination on matters bearing on the witness’ credibility. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). We agree with the district court that the trial judge’s discretionary refusal to allow this particular line of cross-examination did not deny any federal constitutional right, if indeed it constituted an abuse of discretion under state law.

Although Gaskins was not permitted to elicit from B. the circumstances surrounding his other convictions, Gaskins availed himself of ample opportunities to discredit B.’s testimony. For example, during cross-examination, B. revealed that, contrary to his trial testimony, he had initially told investigators that he and Gaskins had run together to Tyner’s cell after the explosion. J.A. at 225. On further cross-examination, B. admitted that he had revealed nothing to investigators about the speaker-cup bomb, and that when he finally did give his present version of the Tyner murder to the prosecutor, he did so from fear of being charged himself. J.A. at 232. In light of ample opportunities to impeach B.’s credibility, and in light of the overwhelming evidence of Gaskins’ guilt, any abuse of the trial court’s discretion on this score was harmless beyond a reasonable doubt.

Similarly, any improper restriction on Gaskins’ direct examination of J.C. was harmless beyond a reasonable doubt. On direct examination, J.B. stated that he had never admitted to C. having attempted to poison Tyner. On direct examination of C., Gaskins attempted to elicit testimony to the effect that B. had admitted attempting to poison Tyner and that, on the day of the explosion, B. had told C. to stay away from death row. The trial court excluded these statements as inadmissible hearsay. J.A. at 298-301. Even so, during cross-examination, C. testified that “J.B. told me that they were plotting to get [Tyner],” and that B. told C. “not to be on death row on Sunday.” J.A. at 336-37. The information allegedly excluded was therefore ultimately adduced during cross-examination, rendering any error by the trial court in excluding it harmless beyond reasonable doubt. See Grundler, 283 F.2d at 802.

Gaskins’ final challenge to the state trial court’s evidentiary rulings involves the court’s refusal, after being informed that witness W.C. would assert his fifth amendment privilege against self-incrimination if forced to testify, to require C. to take the stand and assert the privilege in open court. Out of the jury’s hearing, the trial court determined that the crux of C.’s testimony would be that, after the explosion, Gaskins went, not to his cell as B. had testified, but down to the site of the explosion. See Gaskins, 326 S.E.2d at 140.

A criminal defendant’s right to compel testimony is fundamental to sixth and fourteenth amendment due process rights. See United States v. Goodwin, 625 F.2d 693, 703-04 (5th Cir.1980). When a witness indicates that he will assert the fifth amendment privilege, the trial judge must make a proper and particularized inquiry into the legitimacy and scope of the witness’ assertion of the privilege. See id. at 701. A witness may be totally excused only if the court finds that he could legitimately refuse to answer any and all relevant questions. See id.

On this point we agree with the South Carolina Supreme Court that the trial court’s refusal to require C. to assert his fifth amendment privilege before the jury was in any event harmless error. First off, as the South Carolina Supreme Court concluded, C.’s testimony would have been merely cumulative. See Gaskins, 326 S.E.2d at 140. Moreover, the fact that Gaskins did not elect to offer C.’s expected testimony in the state post-conviction proceeding strongly suggests his own estimate of its slight probative value. Any error in refusing to require C. to take the stand was harmless beyond a reasonable doubt.

Gaskins’ next claim involves alleged prosecutorial misconduct.

During the state’s closing argument at the guilt phase of Gaskins’ trial, the solicitor stated that he wished to talk to the jury “about what is not in dispute in this case.” J.A. at 367. The solicitor then proceeded to list fourteen so-called “undisputed” pieces of evidence, eight of which, Gaskins argues, only Gaskins could have disputed. Additionally, during the sentencing phase of Gaskins’ trial, the prosecutor stated that “Mr. Gaskins has shown no remorse. No emotion. He has shown you nothing.” J.A. at 577. Gaskins did not object to these statements at trial, but argued on both direct appeal and collateral review that these statements constituted violations of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (improper comment on defendant’s failure to testify).

In assessing an alleged Doyle violation, the question is whether the disputed statement so infected the trial and sentencing with unfairness that the ultimate conviction and sentence constituted a denial of due process. See Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). The eight “undisputed” pieces of evidence are: (1) tapes of Gaskins’ conversations with Jack Martin (the intermediary through whom Cimo contacted Gaskins in prison); (2) identities of the voices on the Martin-Gaskins tapes; (3) the dates when the conversations occurred; (4) the exhibit showing when Cimo and Gaskins conversed; (5) Gaskins’ voice on a statement given to an investigator; (6) two inculpatory letters written from Gaskins to B.; (7) a letter written from Gaskins to Lee exculpating Lee; and (8) that electronic equipment, a soldering iron, speakers, and radios were found in Gaskins’ cell.

As the magistrate’s recommendation, adopted by the district court, correctly notes, Gaskins presumably could have sought the testimony of voice and handwriting analysts to contradict items 1-7, and any number of inmates could have testified to the items Gaskins kept in his cell before Tyner’s murder. We agree with the district court that, under these circumstances, the prosecutor’s “laundry list” argument did not constitute a Doyle violation.

Likewise, the state’s argument during sentencing to the effect that Gaskins has shown no remorse must be viewed in context. The solicitor stated that:

Mr. Gaskins has announced to the Court that he is going to make a speech to you as well. I want Mr. Gaskins when he comes up to tell you what in his character caused him to murder each of these people, what caused him to murder Dennis Bellamy? What caused him to shoot this 15 year old, Johnny Knight, in the back of the head?

* S& * * * *

Mr. Gaskins has shown no remorse. No emotion. He has shown you nothing.

jjs s}: sfc 5}s

Mr. [Gaskins] is going to speak to you at this time ... and I ask you to listen to [him] as you listened to me.

J.A. 576-77. Under no reasonable view can the solicitor’s statement be construed to constitute an improper comment on Gaskins’ refusal to testify at the guilt phase of his trial.

VII

Gaskins asserts the following two errors in the trial court’s guilt-phase jury instructions: (1) the trial court’s charge regarding presumed malice constituted an impermissible burden-shifting instruction; and (2) the trial court’s reasonable doubt instruction impermissibly lessened the state’s burden of proof.

As part of the jury charge, the trial court instructed the jury that “while malice is presumed from the use of a deadly weapon or from a dangerous instrument ... where circumstances relating and surrounding the incident are brought out, then the presumption vanishes and malice again must be proven to you beyond a reasonable doubt.” J.A. at 442. On direct appeal, the South Carolina Supreme Court held that, although the instruction constituted impermissible burden-shifting, the constitutional error was harmless beyond a reasonable doubt. See Gaskins, 326 S.E.2d at 143. Both the magistrate and the district court agreed with the state supreme court. J.A. 1186; 1326-27. We also agree.

Even where an instruction constitutes impermissible burden-shifting, any error in giving it may be found harmless if the reviewing court can say beyond reasonable doubt that the jury would have found it unnecessary to rely on the burden-shifting presumption in order to convict. See Rose v. Clark, 478 U.S. 570, 583, 106 S.Ct. 3101, 3109, 92 L.Ed.2d 460 (1986).

Here, the jury necessarily found by its guilty verdict that Gaskins had murdered Tyner with a bomb Gaskins had built from electronic components in his cell and a piece of dynamite he received in the mail, so it is difficult to see how the jury could not have concluded, even without the presumption, that the killing was done “with malice.” Aside from the raw circumstances of the killing, transcripts of conversations between Gaskins and Jack Martin (the intermediary who procured Tyner’s murder) constitute further overwhelming evidence of malice. We therefore can say “ ‘beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.’ ” Id.

Gaskins next asserts that the trial court’s definition of reasonable doubt for the jury as “a doubt for which you can give a reason[,] [i]t is a substantial doubt,” J.A. at 439, relieved the prosecution of proving every element of the crime beyond reasonable doubt as required by In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).

An instruction equating reasonable doubt with “ ‘a substantial doubt, a real doubt’ ... although perhaps not in itself reversible error, often has been criticized as confusing.” Taylor v. Kentucky, 436 U.S. 478, 488, 98 S.Ct. 1930, 1936, 56 L.Ed.2d 468 (1978). At some point, a reasonable doubt definition may be so incomprehensible or potentially prejudicial that it requires reversal. See United States v. Moss, 756 F.2d 329, 333 (4th Cir.1985). Nevertheless, the question in a collateral proceeding such as this is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether ‘the instruction is undesirable, erroneous or even universally condemned.’ ” Smith v. Bordenkircher, 718 F.2d 1273, 1276 (4th Cir.1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (citations omitted)).

Viewed in the context of the entire record of trial, the substantial-doubt portion of the instruction did not rise to the level of a due process violation. First, the trial court employed the instruction to set in contrast “some imaginary doubt or some slight doubt or some fanciful doubt that you might have.” J.A. at 439. .The trial judge’s use of the term substantial doubt was, in context of the entire instruction, more accurate than when viewed in artificial isolation, and was not “likely to ‘mislead the jury into finding no reasonable doubt when in fact there was some.’ ” Smith v. Bordenkircher, 718 F.2d at 1277. Moreover, the trial court flatly instructed the jury that “the proof offered by the state must exclude every other reasonable hypothesis except the guilt of the accused and must satisfy you beyond a reasonable doubt.” J.A. at 444. This instruction further neutralized any negative effects of the substantial-doubt instruction. See Bordenkircher, 718 F.2d at 1277.

We are not prepared to say that this instruction, even in combination with the substantial doubt instruction, “so infected the entire trial that the resulting conviction violates due process.” Id. at 1276.

VIII

Gaskins argues that allowing evidence that a prior death sentence of Gaskins had been vacated could have led the jury to believe that any death penalty it imposed was advisory only, thereby diminishing the jurors’ sense of responsibility for death-penalty imposition in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (eighth amendment violation to tell jury that Mississippi Supreme Court would review any death sentence).

“[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell, 472 U.S. at 328-29, 105 S.Ct. at 2639-40. Nevertheless, “if the challenged instructions accurately described the role of the jury under state law, there is no basis for a Caldwell claim. To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law.” Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 1215, 103 L.Ed.2d 435 (1989).

The asserted Caldwell violation occurred when, during the penalty phase of the trial, the state introduced evidence of Gaskins’ previously vacated murder conviction. And it is argued that this Caldwell violation was aggravated by the trial court’s use over 40 times of words to the effect that “you will recommend that the court sentence the defendant to life imprisonment [or] death.” J.A. 610 (emphasis added).

Even taken together, we conclude that this evidence and the judge’s statement “had no effect on the sentencing decision.” Caldwell, 472 U.S. at 341, 105 S.Ct. at 2646. First, Gaskins points to no references by the state or the trial judge concerning death-sentence review. We do not believe that evidence concerning a prior vacated death sentence “improperly described the role assigned to the jury by local law.” Dugger, 109 S.Ct. at 1215. The most that a reasonable jury could have made of this evidence was that the statute under which the jury was to sentence Gaskins might conceivably be invalidated as unconstitutional at some future date. Nowhere was there any suggestion that such invalidation was imminent or even contemplated.

Similarly, even taken together with the prior-death-sentence evidence, it is difficult to see how, in context, the trial judge’s use of the word “recommend” could have had an effect on the sentencing decision. In an exhaustive analysis, the facts of which are not disputed here, the magistrate noted that during voir dire, the trial judge, the solicitor and Gaskins’ attorney repeatedly told each juror that the jury could sentence to death or life imprisonment, that the jury had to make the decision, and that “the jury will be asked to decide his punishment, either life imprisonment or death by electrocution.” Moreover, in each case Gaskins cites finding a Caldwell violation, the suggestion to the jury that its decision was merely advisory was explicit and obvious. Nowhere in this case did anyone even imply that the jury’s recommendation was non-binding. Though, in retrospect, we believe a wiser course would have been for the trial judge to explicitly instruct the jury that the word “recommendation” meant “binding recommendation,” under the circumstances, we are satisfied that the jury was properly aware of its sentencing responsibilities.

Gaskins also contends that, even if there was no Caldwell violation, allowing testimony concerning the prior-vacated death sentence introduced arbitrary factors in the sentencing decision in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). Gaskins argues that this testimony implied that, regardless of whether Gaskins should be sentenced to death for Tyner’s murder, the jury could properly reimpose the earlier death penalty which was, after all, only vacated because of a legal technicality. Although we agree that evidence of a prior-vacated death penalty is of limited, if any, relevance to the jury’s decision whether to impose the death penalty, it is simply not a consideration so “constitutionally impermissible or totally irrelevant to the sentencing process,” Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (1983), as to rise to the level of a violation of Booth.

Gaskins’ final assignments of error concern the trial judge's instructions to the sentencing jury to the following effect: (1) that the jury could not allow itself to be governed by sympathy; (2) that mitigating circumstances must be found beyond a reasonable doubt; (3) that the decision to impose a life sentence must be unanimous.

At the sentencing hearing, the trial court instructed the jury not to allow itself to be governed by sympathy:

You cannot allow yourselves to be governed by sympathy, by prejudice, or by passion or by public opinion. Both the state and the defendant have the right to expect that each of you will carefully and impartially consider all of the evidence in this case....

J.A. at 619. Gaskins argues that this instruction, coupled with the prosecutor’s statements to the effect that Gaskins was asking for, but deserved, no mercy, constituted an eighth amendment violation because it effectively precluded the jury from considering relevant mitigating evidence offered by Gaskins, namely his individualized appeal for compassion, understanding and mercy. See, e.g., Caldwell, 472 U.S. at 330-31, 105 S.Ct. at 2640-41; Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976).

Our consideration of this issue is foreclosed by the Supreme Court’s recent decision in Saffle v. Parks, — U.S. -, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). Parks, considering the eighth amendment ramifications of a sympathy instruction in all material respects identical to the charge given in Gaskins’ case, held that to uphold such a claim would be to adopt a “new rule” under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), that did not fall within Teague’s two exceptions. Accordingly, the proposed rule could not be announced or applied in a habeas case on collateral review. Parks, 110 S.Ct. at 1263-64. Parks dictates a similar rejection of Gaskins’ claim here.

Gaskins next asserts that the following charge, because it used the term “reasonable doubt” so close to the term “mitigating circumstance,” impermissibly suggested to the sentencing jury that mitigating circumstances must be found beyond reasonable doubt in contravention of the eighth amendment:

Before you can recommend the imposition of a life sentence, it is not necessary and I repeat, it is not necessary for you to find beyond a reasonable doubt the existence of any alleged statutory mitigating circumstances or any other mitigating circumstance.

While it is necessary for you to find beyond a reasonable doubt the existence of at least one alleged statutory aggravating circumstance before you can recommend that the defendant be sentenced to death, it is not — it is not required that you find beyond a reasonable doubt the existence of at least one alleged statutory mitigating circumstance in order to recommend that the defendant be given a life sentence. As a matter of fact, you may recommend that the defendant receive a life sentence irrespective of whether you find the existence in the evidence of an alleged statutory mitigating circumstance or not; but where you consider an alleged statutory mitigating circumstance, it is proper for you to consider only a statutory mitigating circumstance that is supported by the evidence.

J.A. 614-15 (emphasis added). We disagree. Gaskins' strained interpretation of the trial court’s jury instruction is simply not supported by its language, and does not warrant finding an eighth amendment violation.

Similarly, the trial court's statement to the effect that “you have to find at least one or more aggravating circumstances or else you will have to recommend a death sentence [presumably the trial court meant to say life imprisonment instead of death sentence],” could not, in the context of the entire charge, have confused a reasonable juror. As the South Carolina Supreme Court stated, the trial court instructions made patently clear that: (1) a death penalty could not be imposed without aggravating circumstances; (2) if statutory or non-statutory mitigating circumstances were found, a life sentence would be appropriate; (3) the jury had, in any case, full discretion not to impose the death sentence, even though aggravating circumstances and no mitigating circumstances were found. See Gaskins, 326 S.E.2d at 146.

Gaskins’ final asserted error in the jury charge concerned the trial court’s erroneous instruction to the effect that the decision to impose a life sentence must be unanimous. Gaskins contends that this incorrect instruction effectively communicated to the jury that if all members of the jury did not agree on Gaskins’ sentence, then a mistrial would ensue. Thus, the erroneous instruction constituted an arbitrary factor into the sentencing, rendering the unanimous death sentence unreliable. See, e.g., Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

We disagree. Although the trial court inadvertently misstated South Carolina law, it is inconceivable that the disputed instruction could have caused the jurors unanimously to impose a death sentence out of fear of mistrial should they not be unanimous in their decision to impose life imprisonment. We are satisfied that this improper instruction, viewed in context of the entire jury charge, could have had no effect on the sentencing decision. See Caldwell, 472 U.S. at 341, 105 S.Ct. at 2646.

For the foregoing reasons, we affirm the district court’s dismissal of Gaskins’ habeas corpus petition.

AFFIRMED.

NOTES TO THE OPINION

Cf. United States v. Jones, 907 F.2d 456, 460-69 (4th Cir.1990), and id. at 470-84 (dissenting opinion) (conflicting views on constitutional power of federal sentencing court to entertain collateral challenge to validity of prior state court conviction invoked for sentence enhancement purposes).

The parties do not raise and we therefore do not address the possible bearing on this point of Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (where capital sentencing jurors have found two aggravators, invalidation of one on review does not require vacating death sentence), and Smith v. Procunier, 769 F.2d 170 (4th Cir.1985), aff’d on other grounds, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (constitutional invalidity of one finding of aggravating factor does not require vacating death penalty where another aggravator is unchallenged).

Some examples of conversations appear in the record: When he plugs that son of a bitch up, it'll blow him on into hell.... Dam [sic] if I can’t fix him up. Get me enough to do that damn job and listen for the bang. That's enough [drug] to bust his heart. The next night after I get [the poison] ... that son of a bitch'll be laid out. That’s a hell of a hard nigger to get rid of. J.A. 1185.

Because this claim is closely related to Gaskins' claim that the trial judge’s sentencing-phase instructions exacerbated the Caldwell violation, both will be dealt with in this section of the opinion.

The sentence was vacated when the South Carolina Supreme Court declared South Carolina's death penalty statute unconstitutional.

The challenged instruction in Parks stated that: You must avoid any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factor when imposing sentence. You should discharge your duty as jurors impartially, conscientiously and faithfully under your oaths and return such verdict as the evidence warrants when measured by these Instructions. Parks v. Brown, 860 F.2d 1545, 1552 n. 8 (10th Cir.1988), reversed, - U.S. -, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990).