                                          Filed:     February 24, 1998


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                              No. 95-4017
                          (CA-93-2361-3-6BD)



Ronnie Howard,

                                               Petitioner - Appellant,

           versus

Michael W. Moore, etc., et al,

                                           Respondents - Appellees.




                              O R D E R


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

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

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

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                      Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RONNIE HOWARD,
Petitioner-Appellant,

v.

MICHAEL W. MOORE, Director of
                                                              No. 95-4017
South Carolina Department of
Corrections; CHARLES M. CONDON,
Attorney General of the State of
South Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Charles E. Simons, Jr., Senior District Judge.
(CA-93-2361-3-6BD)

Argued: April 8, 1997

Decided: December 9, 1997

Before WILKINSON, Chief Judge, RUSSELL, WIDENER, HALL,
MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, LUTTIG,
WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the majority
opinion, in which Chief Judge Wilkinson and Judges Russell, Wid-
ener, Wilkins, Niemeyer, Hamilton, and Luttig joined. Judge Michael
wrote a dissenting opinion, in which Judges Hall, Murnaghan, and
Motz joined.

_________________________________________________________________
COUNSEL

ARGUED: Sheri Lynn Johnson, CORNELL LAW SCHOOL, Ithaca,
New York, for Appellant. Donald John Zelenka, Assistant Deputy
Attorney General, Columbia, South Carolina, for Appellees. ON
BRIEF: H.W. Pat Paschal, Jr., Greenville, South Carolina; Barney O.
Smith, Jr., Greenville, South Carolina, for Appellant. Charles Molony
Condon, Attorney General, John W. McIntosh, Deputy Attorney Gen-
eral, W. Edgar Salter, III, Senior Assistant Attorney General, Lauri J.
Soles, Assistant Attorney General, Columbia, South Carolina, for
Appellees.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

In June 1986, Ronnie Howard was convicted of capital murder by
a South Carolina jury and sentenced to death. After exhausting his
state appeals, he petitioned the federal district court for habeas corpus
relief. The district court denied his petition and Howard appeals, rais-
ing numerous constitutional challenges to the state court proceedings.
After oral argument before a panel of this Court, we voted to hear
Howard's appeal en banc to address the important procedural and
substantive issues raised. These issues included whether the more def-
erential habeas standards of review set forth in § 104 of the Antiter-
rorism and Effective Death Penalty Act of 1996 (AEDPA), signed
into law on April 24, 1996, and codified at 28 U.S.C.A. § 2254(d)
(West Supp. 1997), apply to this appeal; whether the prosecutor's
peremptory challenges violated Batson v. Kentucky, 476 U.S. 79
(1986); whether questioning by Howard's federal probation officer
after Howard's invocation of his Fifth Amendment right to counsel
tainted his subsequent confessions; and whether the admission of
Howard's redacted confessions erroneously excluded exculpatory and
mitigating evidence from the jury's consideration.

The en banc court heard oral argument on April 8, 1997. On June
23, 1997, the United States Supreme Court issued its opinion in Lindh
v. Murphy, 117 S. Ct. 2059 (1997), in which it held that the new

                    2
habeas standards of review, codified at 28 U.S.C.A. § 2254(d) (West
Supp. 1997), do not apply to habeas corpus petitions pending in fed-
eral court prior to the enactment of the AEDPA. Howard filed his
habeas petition in the district court prior to April 26, 1996, the effec-
tive date of the AEDPA. We, therefore, review Howard's claims
under pre-AEDPA law.1

Applying the proper standard of review to the substantive issues on
appeal, we conclude that (1) no Batson violation occurred; (2) How-
ard's oral confessions to FBI Special Agent Brendan Battle and Lieu-
tenant William Hitchins of the Greenville County Sheriff's
Department were not "tainted fruits" of an improper custodial interro-
gation by Howard's federal probation officer, Haywood Polk; (3) the
redactions of his confessions were not violative of his Fifth and
Eighth Amendment rights; and (4) the other assignments of error
raised by Howard have no merit. Accordingly, we affirm the district
court's denial of habeas relief.

I.

The primary facts of the tragedy underlying this appeal are undis-
puted. Chinh Le disappeared on her way home from work in Green-
ville, South Carolina, on the evening of August 29, 1985. On
September 12, 1985, Howard was arrested on unrelated robbery
charges in Asheville, North Carolina, and detained in the Buncombe
County Jail. After Howard was appointed counsel and invoked his
_________________________________________________________________

1 Although the State contends that it became eligible for the procedures
outlined in § 107 of the AEDPA as of June 18, 1996, with the enactment
of the Effective Death Penalty Act of 1996, 1996 S.C. Acts 448, we need
not decide whether those procedures satisfy the statutory opt-in require-
ments of § 107 because, whatever the merits of South Carolina's appoint-
ment system, § 107 is inapplicable to this appeal since Howard's state
habeas petition was finally denied by the South Carolina Supreme Court
before June 18, 1996. See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th
Cir.) (concluding that Virginia was ineligible for the benefits of § 107 of
the AEDPA, regardless of the merits of Virginia's current appointment
of counsel procedures, because petitioner's Virginia habeas petition had
been finally denied by the Virginia Supreme Court prior to the passage
of Virginia's appointment of counsel procedures), cert. denied, 117 S.
Ct. 503 (1996).

                     3
Fifth Amendment right to remain silent, Howard met with his federal
probation officer, Haywood Polk, on October 3. During this meeting,
Howard orally confessed to his involvement in numerous armed rob-
beries and in two murders, including the murder of Le. At this meet-
ing, Howard also asked to speak to the FBI about his crimes in the
hopes of negotiating a plea to lessen his punishment. As a result,
Howard met with Agent Battle on October 8, and, after signing a
waiver of rights form, orally confessed to, among other things, Le's
murder.2 Agent Battle immediately notified Lieutenant Hitchins of the
Greenville County Sheriff's Department of Howard's connection to
the Greenville murder. Lieutenant Hitchins contacted Howard and the
two met on October 16 at which time Howard, after orally waiving
his rights under Miranda v. Arizona, 384 U.S. 436 (1966), again
orally confessed to Le's murder.

In each confession, Howard revealed that he and Rickey Weldon
had formulated a plan to steal the automobile of a lone female driver.
On August 29, the two men spotted Le and followed her down a dirt
road where they "bumped" the rear of her vehicle. When Le exited her
automobile to inspect the damage, Howard forced her back into her
automobile at gunpoint. Howard then drove away in Le's vehicle, and
Weldon followed in the other car. Howard subsequently stopped in an
isolated area where the two men beat Le and eventually murdered her
by placing a piece of plastic over her head until she suffocated to
death. They again drove around until they found another isolated area
where they dumped Le's body into a clump of kudzu vines.3 Before
_________________________________________________________________

2 In addition to the murder of Le, Howard confessed to Polk and later
to Agent Battle that he had murdered Mary Duncan in Oconee County,
South Carolina. During the Duncan trial, Howard's confession to Agent
Battle was admitted into evidence over Howard's objections. On direct
appeal, Howard challenged the admissibility of the confession to Agent
Battle on numerous grounds, including an argument that the confession
was the "tainted fruit" of a custodial interrogation conducted by Polk in
violation of Miranda. The South Carolina Supreme Court affirmed How-
ard's conviction and life sentence, concluding that Polk's questioning of
Howard did not constitute a "custodial interrogation" triggering the safe-
guards of Miranda. See State v. Howard, 374 S.E.2d 284, 287-88 (S.C.
1988). This issue was not raised by Howard in the direct appeal of the
murder of Le.

3 Kudzu is a green leafy vine of Japanese origin found in the southeast-
ern part of the United States. It is used primarily for forage and erosion
control. In August, kudzu provides a thick vegetative cover over many
fields and wooded areas in South Carolina.

                    4
disposing of her body, however, Howard and Weldon removed all her
clothing and washed her body, first with soda and then in a mud pud-
dle, to remove any fingerprints. Howard and Weldon then abandoned
Le's automobile in Columbia, South Carolina. Howard, however,
retained possession of some of Le's personal belongings and traveled
to Charlotte, North Carolina, where he disposed of the items in vari-
ous garbage dumpsters. As a result of Howard's confession, South
Carolina authorities recovered Le's body and her automobile several
weeks after her death.

Howard and Weldon were tried jointly for Le's murder. The State
introduced Howard's confessions into evidence through the testimony
of Agent Battle and Lieutenant Hitchins, both of whom had taken
meticulous handwritten notes of their conversations with Howard.
Polk did not testify. In compliance with Bruton v. United States, 391
U.S. 123 (1968), the trial court directed Agent Battle and Lieutenant
Hitchins not to reveal those portions of Howard's confessions incul-
pating his codefendant Weldon during direct or cross examination. On
June 5, 1986, a jury found both defendants guilty of murder, kidnap-
ping, armed robbery, and conspiracy. Howard and Weldon were each
sentenced to death for the murder, plus twenty-five years for the
armed robbery and five years for the conspiracy.

On direct appeal, the South Carolina Supreme Court upheld How-
ard's conviction and his death sentence. See State v. Howard, 369
S.E.2d 132 (S.C. 1988), cert. denied, 490 U.S. 1113 (1989).4 The state
_________________________________________________________________

4 On direct appeal, Howard challenged his conviction, claiming that the
trial court erroneously (1) refused to quash the jury panel pursuant to
Batson v. Kentucky, 476 U.S. 79 (1986); (2) refused to sever his trial
from that of his codefendant Weldon; (3) admitted Weldon's confession
in violation of Howard's right to confrontation; (4) submitted the case to
the jury when the State failed to present any proof of the corpus deliciti
aside from his confession; (5) admitted his confession when it was
obtained in violation of his right to counsel under both the Fifth and
Sixth Amendments; and (6) refused to provide Howard with two attor-
neys in compliance with S.C. Code Ann. § 16-3-26(b) (Supp. 1986).
Howard alleged that in the penalty phase the trial court erroneously (1)
refused to admit Howard's federal parole records as mitigating evidence;
(2) admitted portions of Howard's statements in which he confessed to

                    5
court also affirmed Weldon's conviction, but reversed his death sen-
tence and remanded for resentencing.5 The United States Supreme
Court denied Howard's petition for certiorari, see 490 U.S. 1113
(1989), and his petition for rehearing, see 492 U.S. 932 (1989). How-
ard then sought post-conviction relief (PCR) in state court.6 After con-
_________________________________________________________________

approximately 70 armed robberies and another murder; (3) admitted affi-
davits regarding Howard's participation in additional armed robberies;
(4) refused to declare a mistrial following the prosecutor's comments
concerning Howard's failure to testify; (5) admitted evidence regarding
the victim's background; (6) conducted the trial past midnight; and (7)
failed to admit Howard's complete confessions into evidence in mitiga-
tion of punishment.

5 On direct appeal, the South Carolina Supreme Court concluded that
Weldon was unduly prejudiced during the penalty phase of the trial by
the exclusion of his complete confession. The trial court had redacted
portions of Weldon's confession in compliance with Bruton v. United
States, 391 U.S. 123, 133-34 & n.10 (1968) (the introduction of a jointly
tried, non-testifying codefendant's statement violates the Sixth Amend-
ment Confrontation Clause if the statement contains incriminating state-
ments concerning a defendant). The State Supreme Court held that the
unredacted version of Weldon's confession supported his position that he
acted under Howard's domination, a statutory mitigating circumstance
charged to the jury. Because the State Supreme Court determined that
this information was erroneously excluded from the jury's consideration,
it vacated Weldon's death sentence and remanded for resentencing. The
State Supreme Court rejected Howard's argument that he was prejudiced
by the exclusion of portions of his confessions, concluding that his unre-
dacted confessions, unlike Weldon's, contained no mitigating evidence.

6 In the state PCR court, Howard argued that (1) he received ineffective
assistance of counsel; (2) the trial court erroneously failed to admit How-
ard's complete confessions; (3) the trial court erroneously failed to
appoint experienced counsel; (4) the trial court erroneously admitted
Howard's unconstitutionally obtained confessions; (5) the trial court
erroneously failed to provide a meaningful psychiatric evaluation; (6) the
trial court erroneously denied Howard funds for a jury expert; (7) his trial
counsel had a conflict of interest; (8) the trial court erroneously admitted
Howard's guilty plea to the unrelated robbery charge in North Carolina,
because it was involuntary; (9) the prosecutor failed to disclose favorable
mitigation evidence prior to trial in accordance with Brady v. Maryland,
373 U.S. 83 (1963); (10) the trial court erroneously excluded the testi-

                    6
ducting an evidentiary hearing, the state PCR court denied Howard
relief on September 3, 1991. The South Carolina Supreme Court
affirmed the denial of relief, and the United States Supreme Court
again denied certiorari, see 508 U.S. 917 (1993).

On September 17, 1993, Howard filed this federal habeas action in
the United States District Court for the District of South Carolina. The
petition was referred to a magistrate judge, who recommended deny-
ing Howard's motion for an evidentiary hearing and his petition for
habeas corpus relief. The district court adopted the findings of the
magistrate judge and granted the State's motion for summary judg-
ment on June 16, 1995. Howard now appeals the district court's
denial of habeas corpus relief.

II.

Howard raises several issues in his petition to this Court. He argues
that his conviction should be reversed because (1) the prosecutor
improperly used peremptory strikes against six of the seven black
potential jurors in violation of Batson v. Kentucky, 476 U.S. 79
(1986); (2) the trial court erroneously admitted portions of Howard's
confessions made to Agent Battle and Lieutenant Hitchins; and (3) the
trial court erroneously excluded from the jury's consideration portions
of Howard's confessions which contained exculpatory evidence.
Howard also challenges his death sentence on the grounds that (1) the
trial court erroneously excluded mitigating evidence contained in
Howard's confessions in violation of Lockett v. Ohio, 438 U.S. 586
(1978), and Skipper v. South Carolina, 476 U.S. 1 (1986); (2) the trial
court erroneously failed to reinstruct the jury on the elements of
_________________________________________________________________

mony of his federal probation officer, Haywood Polk; (11) the trial court
erroneously instructed the jury so as to allow a finding of guilt below the
degree of proof required; (12) there was improper ex parte contact
between the prosecutor's office and the jury; (13) the trial court arbitrar-
ily excluded women with children from the venire; (14) the trial court
erroneously instructed the jury regarding aggravating and mitigating cir-
cumstances and failed to reinstruct the elements of lesser included
offenses; and (15) the trial court erroneously admitted evidence regard-
ing the victim's background.

                    7
involuntary manslaughter when it repeated its instructions on murder;
(3) Howard's counsel was ineffective in failing to present certain mit-
igating evidence during the penalty phase of the trial; (4) the prosecu-
tor improperly commented on Howard's failure to testify during
closing arguments; and (5) there was improper ex parte contact
between the prosecutor's office and the jury.

When considering a habeas petition, we review de novo the state
court's determinations of questions of law, see Savino v. Murray, 82
F.3d 593, 598 (4th Cir.), cert. denied, 117 S. Ct. 1 (1996), and of
mixed questions of law and fact, see Miller v. Fenton, 474 U.S. 104
(1985). However, the state court's factual findings underlying those
determinations are presumed to be correct and binding, as long as
they were made after a full, fair, and adequate hearing on the merits.
See 28 U.S.C.A. § 2254(d) (West 1994) (pre-AEDPA); see also
Sumner v. Mata, 449 U.S. 539, 546-47 (1981). The habeas petitioner
bears the burden of establishing by convincing evidence that a state
court's factual determinations were erroneous. See 28 U.S.C.A.
§ 2254(d) (pre-AEDPA); see also Sumner, 449 U.S. at 550. We now
address each of Howard's claims in turn.

A.

First, Howard, who is black, argues that the prosecutor's use of
peremptory strikes to exclude black venirepersons from the jury vio-
lated Batson v. Kentucky, 476 U.S. 79 (1986). We conclude, however,
that Howard has failed to rebut by clear and convincing evidence the
trial court's finding, affirmed by the South Carolina Supreme Court,
that the challenges were not exercised for racially discriminatory rea-
sons. See Hernandez v. New York, 500 U.S. 352, 364 (1991) (plurality
opinion) (holding that the intent to discriminate under Batson is "a
pure issue of fact, subject to review under a deferential standard"); see
also id. at 369 (holding that the findings of the trial court on discrimi-
natory intent in Batson challenge are reviewed for clear error);
Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 534 (1979) (holding
that the finding of intent to discriminate is a factual determination
subject to the "clearly erroneous" standard of review); Jones v.
Plaster, 57 F.3d 417, 421 (4th Cir. 1995) ("A finding by the [trial]
court concerning whether a peremptory challenge was exercised for

                    8
a racially discriminatory reason is given great deference by this court;
we review that finding only for clear error."). Accordingly, we affirm.

After voir dire, forty-two persons were qualified as jurors, only
seven of whom were black. The prosecutor struck six of the seven
black prospective jurors and four of the thirty-five white prospective
jurors, resulting in a jury of eleven white jurors and one black juror.
Howard moved to quash the panel pursuant to Batson. The trial court
found, and we agree, that the prosecutor's striking of six out of the
seven black prospective jurors constituted a prima facie case of
discrimination.7

Once the defendant establishes a prima facie case of discrimina-
tion, the burden shifts to the prosecutor to articulate race-neutral
explanations for the challenges. See Batson, 476 U.S. at 97. The pros-
ecutor's "explanation need not be `persuasive, or even plausible,' as
long as it is neutral." Matthews v. Evatt, 105 F.3d 907, 917 (4th Cir.)
(quoting Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995)), cert. denied,
118 S. Ct. 102 (1997); see also Jones, 57 F.3d at 420 ("To satisfy this
burden, the party need offer only a legitimate reason for exercising
the strike, i.e., one that does not deny equal protection; the reason
need not be worthy of belief or related to the issues to be tried or to
the prospective juror's ability to provide acceptable jury service."). If
the prosecutor satisfies this requirement, the burden shifts back to the
defendant to prove that the explanation given is a pretext for discrimi-
nation. See Batson, 476 U.S. at 98. The ultimate burden always rests
with the opponent of the challenge to prove "purposeful discrimina-
tion." See Hernandez, 500 U.S. at 360 ("`"Discriminatory purpose"
. . . implies more than intent as volition or intent as awareness of con-
sequences. It implies that the decisionmaker . . . selected . . . a partic-
ular course of action at least in part "because of," not merely "in spite
_________________________________________________________________

7 To establish a prima facie violation of racial discrimination in the use
of peremptory challenges, a defendant must demonstrate that (1) "he is
a member of a cognizable racial group"; (2) "that the prosecutor has
exercised peremptory challenges to remove the venire members of the
defendant's race"; and (3) "that these facts and any other relevant cir-
cumstances raise an inference that the prosecutor used that practice to
exclude the veniremen from the petit jury on account of their race."
Batson v. Kentucky, 476 U.S. 79, 96 (1986).

                    9
of," its adverse effects upon an identifiable group.'" (quoting
Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979) (internal foot-
note and citation omitted))); see also Jones, 57 F.3d at 420-21 ("[T]he
party challenging the selection process [must] prove[ ] that intentional
discrimination was a substantial or motivating factor in the decision
to exercise the strike."). The trial court must then determine whether
the challenge was exercised for a racially discriminatory reason. The
trial court's resolution of this issue rests largely on credibility deter-
minations, and therefore, we give its findings great deference. See
Jones, 57 F.3d at 421 ("[T]he [trial] court is especially well-suited to
resolve challenges to peremptory strikes of jurors because it has
observed with its own eyes the very act in dispute.").

Howard first challenges the prosecutor's use of peremptory strikes
against black prospective jurors Edward Wood and Charles Copeland.
During the Batson hearing, the prosecutor explained that he struck
Wood "because he said he leans towards life every time. He was more
pro-life. He said he was not really for the death penalty." (J.A. at 536-
37.)8 The prosecutor further stated that Copeland was struck "because
he said . . . from a religious standpoint he would find it hard to vote
for the death penalty. He said he does not believe another man should
take another man's life. He also said it would have to be [a] very
extreme case for him to vote for the death penalty." (J.A. at 537.)

Although Howard admits that these reasons are race-neutral, he
argues that they were pretextual because the prosecutor failed to strike
white jurors expressing similar views. While this circumstance may
give rise to an inference of pretext, see Ford v. Norris, 67 F.3d 162,
169 (8th Cir. 1995), "Batson is not violated whenever two veniremen
of different races provide the same responses and one is excused and
the other is not," Matthews, 105 F.3d at 918. Both the prosecutor and
defense counsel must be allowed to make credibility determinations
when exercising peremptory challenges. For example, counsel may
consider "the `characteristics of the other prospective jurors against
whom peremptory challenges might be exercised; to reevaluate the
mix of jurors . . . and to take into account tone, demeanor, facial
expression, emphasis -- all those factors that make the words uttered
_________________________________________________________________

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

                     10
by the prospective juror convincing or not.'" Id. (quoting Burks v.
Borg, 27 F.3d 1424, 1427 (9th Cir. 1994), cert. denied, 513 U.S. 1095
(1995)).

Moreover, the responses of the white jurors cited by Howard were
sufficiently dissimilar to those provided by the black jurors to show
that the prosecutor did not intentionally discriminate in the selection
of the jury. Although white jurors Richard Ashmore, Sharon Lunny,
and Floyd Rohm were ambivalent about the death penalty, Wood's
and Copeland's anti-death penalty sentiments were much stronger. As
a result, mindful of the deference we must give the trial court, we
affirm its finding that the prosecutor's reasons for striking Wood and
Copeland were not pretextual.

Howard also challenges the striking of Antonio Golden and
Amanda Fuller, arguing that the combination of factors relied upon
by the prosecutor to strike them was not supported by the record. The
prosecutor explained that he struck Golden because she had an "er-
ratic" work history, her husband was "unemployed," and he was
attempting to reach the next juror whom he believed was a stronger
advocate of the death penalty. The prosecutor stated that he chal-
lenged Fuller due to her "unstable work history," her young age, and
her inability to "commit generally for or generally against the death
penalty." Employment status is a legitimate race-neutral factor that
may be relied upon by a prosecutor for challenging a potential juror.
See United States v. Day, 949 F.2d 973, 979 (8th Cir. 1991). Like-
wise, age is an acceptable race-neutral factor. See United States v.
Jackson, 983 F.2d 757, 762 (7th Cir. 1993). Again, we cannot say that
the trial court erred in concluding that Howard failed to prove that the
given reasons for striking these jurors were pretextual.

Finally, Howard argues that the prosecutor's comprehensive ques-
tioning of Gladys McElrath and his mischaracterization of Jeffrey
Dunbar's testimony demonstrate his discriminatory intent. We dis-
agree. McElrath's statements that she did not believe in capital pun-
ishment and "would go for life" legitimately prompted extensive
questioning by the prosecutor, and the prosecutor's observation that
Dunbar had twice stated he could not vote for the death penalty was
accurate. Moreover, Dunbar's unique status as a recent high school
graduate was a race-neutral reason for striking him. See Jackson, 983

                    11
F.2d at 762 (holding that age is an acceptable race-neutral reason for
striking a prospective juror). In sum, we hold that the trial court did
not err in concluding that the prosecutor's striking of the challenged
black venirepersons was not racially motivated.

B.

Next, Howard challenges the admission of his two confessions,
which were admitted in redacted form in accordance with Bruton v.
United States, 391 U.S. 123 (1968). First, he contends that the confes-
sions should have been suppressed because they were the tainted
fruits of a custodial interrogation initiated by his probation officer in
violation of Edwards v. Arizona, 451 U.S. 477 (1981). Second, How-
ard argues that if the confessions were legally obtained, the failure to
admit each confession in its entirety was erroneous because the exclu-
sions distorted the meaning of the confessions, created a materially
false impression of Howard's relative culpability, and excluded sub-
stantially exculpatory evidence. Third, he claims that the unredacted
version of his confessions contained statements admissible as mitigat-
ing evidence in the penalty phase of the trial under Lockett v. Ohio,
438 U.S. 586 (1978).

1.

Howard argues that his confessions to FBI Agent Battle and Green-
ville County Lieutenant Hitchins should have been suppressed
because they were the "tainted fruits" of a custodial interrogation ini-
tiated by his federal probation officer, Haywood Polk, in violation of
Edwards v. Arizona, 451 U.S. 477 (1981). Whether Howard's confes-
sions are "tainted fruits" is a question of law reviewed de novo. See
United States v. Elie, 111 F.3d 1135, 1140 (4th Cir. 1997). After a
thorough review of the record, we conclude that the confessions were
properly admitted.

a.

On September 12, 1985, two weeks after Le's disappearance,
police in Asheville, North Carolina, arrested Howard on robbery
charges. On September 18, Attorney Gary Cash was appointed to rep-

                    12
resent Howard on the North Carolina robbery charges. On October 2,
Asheville Detective Lee Warren and two South Carolina detectives
met with Howard and Cash to discuss a series of South Carolina rob-
beries under investigation. Howard, following Cash's advice, declined
to make any statement. Cash then attempted to negotiate an immunity
agreement with South Carolina authorities in exchange for a state-
ment from Howard. An agreement could not be reached, however,
and Cash notified the North Carolina and South Carolina authorities
that Howard would not make any statements.

On October 3, 1995, Howard met with Polk in Asheville, where
Howard remained in custody. At that time, Howard confessed to
numerous armed robberies and to two South Carolina murders,
including the murder of Le. Hoping to obtain lesser sentences for his
crimes, Howard asked Polk to arrange for him to speak to an FBI
agent about the crimes. Polk contacted Agent Battle, who met with
Howard on October 7 and October 8. Howard signed standard
Miranda waiver of rights forms on both October 7 and October 8
prior to speaking with Agent Battle. In addition, on October 7, How-
ard signed an addendum to the waiver of rights form specifically
acknowledging his desire to speak with the FBI without the benefit
of counsel.9 Having waived his right to counsel, on October 8 Howard
confessed in great detail to the Le murder and approximately seventy
other armed robberies.

Agent Battle immediately notified Lieutenant Hitchins of How-
ard's involvement in Le's murder. Lieutenant Hitchins met with How-
ard on October 16. Lieutenant Hitchins advised Howard of his
Miranda rights and requested that he sign a waiver of rights form.
_________________________________________________________________

9 Before Howard gave his oral statement to Agent Battle, he signed a
paragraph, handwritten by Agent Battle, which stated:

        I, Ronnie Howard, have requested through my federal probation
        officer, Mr. Haywood Polk, to be interviewed by the F.B.I. about
        my involvement in criminal activities. I do not want the lawyer
        present who is representing me on Asheville armed robbery
        charges and understand that the F.B.I. agents will ask me no
        questions about those charges. Signed Ronnie Howard.

(App. at 867.)

                   13
Howard stated that "he preferred not to" sign the form, and gave an
oral statement to Lieutenant Hitchins confessing to the Le murder.
During their meetings with Howard, both Agent Battle and Lieutenant
Hitchins took notes that were later transcribed for their respective
reports. After reviewing these reports, the trial court ordered both wit-
nesses to refrain from discussing Weldon's part in Le's murder,
except as it was corroborated in Weldon's own confession.

b.

The trial court conducted a hearing pursuant to Jackson v. Denno,
378 U.S. 368 (1964), prior to the admission of the statements during
both the guilt and penalty phases of Howard's trial. After considering
the testimony of Howard, Agent Battle, and Lieutenant Hitchins, the
trial court denied Howard's motion to suppress the confessions. The
trial court found that

        the State has proven beyond a reasonable doubt and met its
        burden that the Defendant was first advised of his constitu-
        tional rights, his Miranda rights, that he fully understood the
        warnings and knowingly elected to waive his rights, that he
        did indeed make a statement, and that the statement was
        freely and voluntarily made under the totality of the circum-
        stances, and also that all constitutional Miranda rights were
        accorded him and complied with.

(J.A. at 551-52.) The South Carolina Supreme Court affirmed. During
his state PCR hearing, Howard again argued that his confessions
should have been suppressed because they were not voluntarily given
and that they were the "tainted fruits" of a custodial interrogation by
Polk made in violation of Miranda. The state PCR court rejected
Howard's argument, finding that Howard's "statements were freely
and voluntarily given and that none were taken in violation of [his]
Miranda and Edwards rights." (J.A. at 839.) None of the state courts
reviewing Howard's appeal have specifically found whether Polk or
Howard initiated their meeting, or whether their meeting constituted
a custodial interrogation.10
_________________________________________________________________

10 As previously discussed at n.2, supra, in Howard's direct appeal of
his conviction for the murder of Mary Duncan, Howard claimed that his

                    14
The federal magistrate judge dismissed Howard's allegation that
Polk was acting on behalf of the FBI when he interviewed Howard
and that the interview constituted a custodial interrogation. The mag-
istrate judge noted that Howard's allegations flatly contradicted his
earlier position in state court that his counsel was ineffective for not
calling Polk, Howard's friend as well as his probation officer, as a
favorable witness for Howard during the trial. The district court simi-
larly concluded that because "[n]othing in the record demonstrates
that Polk was acting outside his role as probation officer in approach-
ing petitioner," there was no "custodial interrogation" and therefore,
no Edwards violation.11 We review the district court's legal conclu-
sions de novo. See Savino v. Murray, 82 F.3d 593, 598 (4th Cir.
1996).

c.

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court
outlined "concrete constitutional guidelines for law enforcement
agencies and courts to follow." Id. at 442. For example, "Miranda . . .
_________________________________________________________________

waiver of his right to counsel during his meeting with Polk was ineffec-
tive because Polk violated his Fifth Amendment right against self-
incrimination when he questioned Howard at the Buncombe County Jail
on October 3, 1985. The South Carolina Supreme Court rejected How-
ard's claim, concluding that Polk did not "interrogate" Howard during his
visit to the jail. While Howard steadfastly challenged the admissibility of
the confessions to Agent Battle and Lieutenant Hitchins throughout his
trial for the murder of Le and on direct appeal on various grounds, he did
not argue that the confessions were "tainted fruit" directly resulting from
Polk's "custodial interrogation" until his state habeas proceeding. There-
fore, Howard's Edwards claim is arguably procedurally defaulted by vir-
tue of his failure to raise it on direct appeal. The State, however, has
waived the procedural default issue by failing to argue it before this
Court. See United States ex rel. Bonner v. DeRobertis, 798 F.2d 1062,
1066 (7th Cir. 1986).

11 Although Howard argues that the district court implicitly found that
Polk initiated the meeting with him, we conclude that neither the magis-
trate judge nor the district court made a specific finding on that issue. It
appears that both assumed, without deciding, that Polk initiated the meet-
ing, but then rejected Howard's claim by finding that the meeting did not
constitute a "police-initiated custodial interrogation."

                    15
declared that an accused has a Fifth and Fourteenth Amendment right
to have counsel present during custodial interrogation," Edwards, 451
U.S. at 482, and that if the accused asserts his right to counsel, "`the
interrogation must cease until an attorney is present,'" id. at 485
(quoting Miranda, 384 U.S. at 474). The Edwards rule, as enunciated
by the Supreme Court, provides

        that when an accused has invoked his right to have counsel
        present during custodial interrogation, a valid waiver of that
        right cannot be established by showing only that he
        responded to further police-initiated custodial interrogation
        even if he has been advised of his rights. . . .[Rather,] an
        accused, . . . having expressed his desire to deal with the
        police only through counsel, is not subject to further interro-
        gation by the authorities until counsel has been made avail-
        able to him, unless the accused himself initiates further
        communication, exchanges, or conversations with the
        police.

Id. at 484-85; see also Minnick v. Mississippi, 498 U.S. 146, 153
(1990) (stating "that when counsel is requested, interrogation must
cease, and officials may not reinitiate interrogation without counsel
present, whether or not the accused has consulted with his attorney");
Savino, 82 F.3d at 599-600 (holding that "any confession obtained by
interrogation reinitiated by police in the absence of counsel is inad-
missible" unless "the defendant reinitiates discussion with police and
then confesses").

Polk, to whom Howard initially confessed, did not testify at How-
ard's trial. The only confessions which Howard seeks to exclude are
those made to Agent Battle and Lieutenant Hitchins. Every reviewing
court has found that Howard initiated contact with Agent Battle
through his probation officer Polk, and that he voluntarily made self-
incriminating statements to both Agent Battle and Lieutenant
Hitchins. See Howard v. State, No. 90-CP-23-3829 (S.C. 1991) (state
post-conviction relief court finding that Howard "requested to talk to
the F.B.I. about certain crimes"); Howard v. Evatt, C.A. No. 3:93-
2361 (D.S.C. 1993) (district court finding that Howard "told Polk that
he wanted to talk with the FBI" and that Howard's subsequent "Octo-
ber 7 and 8 statements were made voluntarily after initiation of com-

                    16
munication by petitioner"). Even more telling, Howard concedes that
"[t]here is ample support in the record for the factual finding that" he
"initiated contact with [the] FBI." (Petitioner's Reply Br. at 1.) In
fact, he "does not contest that finding" on appeal. (Id.)

Based upon the aforementioned findings and Howard's concession,
it is not surprising that Howard does not contend that his confessions
to Agent Battle and Lieutenant Hitchins were made in violation of
Edwards.12 Rather, Howard's sole argument regarding the admissibil-
_________________________________________________________________

12 The dissent inexplicably criticizes the majority for failing to focus
upon whether Howard's confessions to Agent Battle and Lieutenant
Hitchins were made in violation of Edwards. See post at 44. The dissent,
however, blatantly disregards the state court's finding that Howard initi-
ated contact with the FBI. In fact, Howard concedes that the state court's
finding is supported by ample evidence. (Petitioner's Reply Br. at 1.)
Howard's concession is undoubtedly based in no small part upon a state-
ment he signed prior to his confessions. The statement provides that:

        I, Ronnie Howard, have requested through my federal probation
        officer, Mr. Haywood Polk, to be interviewed by the F.B.I. about
        my involvement in criminal activities. I do not want the lawyer
        present who is representing me on Asheville armed robbery
        charges and understand that the F.B.I. Agents will ask me no
        questions about those charges.

(App. at 867). Because Howard admits that he initiated contact with the
FBI, there was simply nothing upon which to "focus."

In addition, the dissent's assertion that "Polk convinced Howard to talk
to the FBI in an attempt to get a deal," see post at 41, is simply
unfounded. See Howard v. State, No. 90-CP-23-3829 (S.C. 1991) (state
post-conviction relief court noting that Howard's trial counsel, upon
investigation of the admissibility of the confessions, learned "that no
promises either oral or written were made to [Howard], that [Howard]
confessed to the authorities in the hope that he would get some type of
concession or recommendation and in the hope that they would not seek
the death penalty, and that for reasons only known to [Howard] he felt
compelled to reveal information"). A review of the record reveals, and
Howard does not dispute, that he initiated contact with the FBI, thereby
waiving his rights under Edwards. See Oregon v. Bradshaw, 462 U.S.
1039, 1047 (1983) (concluding that "questions which evinced a willing-
ness and a desire for a generalized discussion about[an] investigation"
constitute initiation under the Edwards rule).

                    17
ity of the confessions to Agent Battle and Lieutenant Hitchins is that
Polk's meeting with Howard, in which Howard initially confessed
constituted a "police-initiated custodial interrogation" in violation of
Edwards, i.e., a poisonous tree, and that the resulting confessions to
Agent Battle and Lieutenant Hitchins were inadmissible "tainted
fruit." Assuming, without deciding, that Polk's actions were on behalf
of law enforcement and that his questioning of Howard while he was
in custody constituted a "custodial interrogation" under Miranda,13 we
nevertheless reject Howard's claim.
_________________________________________________________________

13 As we previously noted, once a defendant invokes his Fifth Amend-
ment right to counsel, any subsequent police-initiated custodial interro-
gation would violate Edwards. This circuit has not addressed whether
custodial questioning by a probation officer constitutes a police-initiated
interrogation under Edwards v. Arizona, 451 U.S. 477 (1981), or
Miranda v. Arizona, 384 U.S. 436 (1966). The district court held that
Polk's questioning of Howard did not violate Edwards because Polk was
acting simply in his capacity as a probation officer when he spoke with
Howard and not as an agent of the FBI. We need not decide whether
Polk was acting as a law enforcement officer or whether he interrogated
Howard because even if Howard's statements to Polk were obtained in
violation of Edwards, we conclude that the statements made to Agent
Battle and Lieutenant Hitchins were admissible.

Nevertheless, we address the dissent's apparent resolution of both of
these issues. According to the dissent, whether an Edwards violation
occurred turns upon who initiated the discussion between Polk and How-
ard. The dissent, therefore, necessarily finds, without any analysis or
explanation, both that Polk was acting as an agent of the police and that
the conversation between Polk and Howard constituted a "custodial inter-
rogation" for Edwards purposes. Neither of these conclusions, however,
is self-evident.

First, it is far from clear that Polk, a federal probation officer, was act-
ing as an agent of the police when he met with Howard, his probationer.
Unfortunately, the Supreme Court has not directly addressed this issue.
In Minnesota v. Murphy, 384 U.S. 436 (1984), the Court rejected a pro-
bationer's claim that incriminating statements he made to his probation
officer during a routine interview should have been suppressed because
the officer failed to advise him of his Miranda rights. The Court con-
cluded that the interview did not constitute a custodial interrogation giv-
ing rise to the protections of Miranda because the interview was not
inherently coercive. Id. at 430-33. It is unclear from the Court's analysis,
however, whether it considered the probation officer, whose admitted

                    18
Howard invoked his Fifth Amendment right to counsel prior to his
interview with Polk, thereby triggering the protections of Edwards.
_________________________________________________________________

primary purpose for arranging the interview was to obtain incriminating
statements from her probationer, to be acting as an agent of the police.
The circuit courts, however, have uniformly held that probation officers
fulfilling routine duties are not agents of the police, but agents of the
court, and therefore their probationers may not invoke the protections of
Miranda. See Williams v. Chrans, 945 F.2d 926, 951 (7th Cir. 1991)
(concluding that a probation officer conducting a custodial post-
conviction presentence interview is acting as "`a neutral information
gatherer for the court rather than [as an agent of] the police or prosecu-
tion, the parties most likely to coerce the defendant into relinquishing his
Fifth Amendment rights'" (quoting United States v. Cortes, 922 F.2d
123, 127 (2d Cir. 1990)); United States v. Rogers, 921 F.2d 975, 979
(10th Cir. 1990) (concluding that "[t]he purpose of the presentence report
. . . is neither prosecutorial nor punitive . . .[as t]he probation officer acts
as an agent of the court for the purpose of gathering and classifying
information"); United States v. Jackson, 886 F.2d 838, 842 n.4 (7th Cir.
1989) ("[W]e do not believe that a federal probation officer acts on
behalf of the prosecution.") Investigating a probationer's alleged non-
compliance with the terms of his probation is certainly a regular duty of
a probation officer. Therefore, absent evidence that Polk stepped outside
his neutral role as a federal probation officer, we question the dissent's
assumption that Polk acted as an agent of the police.

Second, even assuming that Polk was acting on behalf of the police
when he met with Howard, an argument rejected by both the federal
magistrate judge, (J.A. at 213), and the district court, (J.A. at 301-02), the
dissent offers no factual support for its conclusion that Polk "interro-
gated" Howard. See Rhode Island v. Innis, 446 U.S. 291, 299 (1980)
(recognizing that not "all statements obtained by the police after a person
has been taken into custody are to be considered the product of interroga-
tion"). In fact, as discussed at n.2 & n.10, supra, the South Carolina
Supreme Court examined the same events in Howard's direct appeal of
his conviction for the Duncan murder and found that Polk did not "inter-
rogate" Howard. See State v. Howard, 374 S.E.2d 284, 288 (S.C. 1988).
Again, we do not attempt to decide these issues because they are not nec-
essary to our resolution of the ultimate question of whether Howard's
confessions to Agent Battle and Lieutenant Hitchins are admissible. We
only point out these issues in response to the dissent's decidedly incom-
plete discussion of them.

                     19
See Edwards, 451 U.S. at 485 (holding that an accused who has
invoked the right to counsel is not subject to further interrogation "un-
less the accused himself initiates further communication, exchanges,
or conversations with the police"). Howard claims that Polk initiated
the contact, approaching Howard in the hopes of extracting a confes-
sion from him. The State contends, however, that it was Howard who
initiated contact with Polk, thereby waiving his right to counsel, when
he asked Detective Warren of the Asheville Police Department to call
Polk.

During the suppression hearing at trial, Howard never refuted the
State's contention that he asked Detective Warren to allow him to
speak with Polk.14 Howard testified that "it was either a week and a
half or maybe two weeks before I talked to my parole officer, [Hay-
wood Polk]. He was called up by [Detective] Lee Warren, I think. I'm
not sure about that. . . . And [Detective Warren] called Heywood [sic]
up or I think that was what happened, and Heywood[sic] came up,
and I talked to him." (App. at 1091.) Howard also testified that he and
Polk enjoyed "a real close relationship" in which he "considered
[Polk] not as a parole officer, but as my friend, and a person who I
could talk to at different times about things." (App. at 1088.) Howard
also consistently testified that at the October 3, 1985, meeting with
Polk in which he agreed to speak with the FBI, "I just told him. I
think I opened up to him about everything, and I tried to be as honest
as possible. . . ." (App. at 1092.) During Howard's state PCR hearing,
Polk testified that he was contacted by Detective Warren "on instruc-
tions from Ronnie Howard." (J.A. at 758.) The State also points to the
_________________________________________________________________

14 In his Reply Brief, Howard contends for the first time that his rights
under Edwards were initially violated by Detective Warren, prior to
Howard's meeting with Polk. This assertion is barred by his failure to
raise it earlier. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-12 (1992)
(holding that when a state has given petitioner a full and fair hearing on
a claim and he has failed to develop material facts to support it, he is not
entitled to develop further facts in a federal habeas evidentiary hearing
unless he demonstrates either cause for the failure and prejudice resulting
therefrom or a fundamental miscarriage of justice). Moreover, an exami-
nation of Howard's allegations convinces us that even if there was an
Edwards violation by Detective Warren, it would not bar the admission
of Howard's confessions to Agent Battle and Lieutenant Hitchins for the
reasons outlined in Part II.B.1.c. of the majority opinion.

                    20
testimony of FBI Agent Drucilla Kurrle, who was present with Agent
Battle when Howard was questioned. At trial, Agent Kurrle stated that
the interviews with Howard began after "he contacted Mr. Polk and
. . . requested to speak to an FBI agent." (App. at 1361.) In fact, at
Howard's state PCR hearing, Howard's attorney attempted to use the
fact that Howard contacted Polk to show that Howard wanted to
cooperate with law enforcement.

We conclude, however, that it is immaterial whether Polk's interro-
gation of Howard constituted an Edwards violation (because either
Howard initiated contact with Polk and then invoked his right to
counsel, triggering his rights under Edwards anew, or Polk initiated
contact with Howard after he invoked his right to counsel) because
Howard's subsequent confessions to Agent Battle and Lieutenant
Hitchins are not inadmissible "tainted fruits."15 The "tainted fruits"
doctrine is simply inapplicable absent a constitutional violation. See
Oregon v. Elstad, 470 U.S. 298, 308 (1985) (concluding that the "fruit
of the poisonous tree" doctrine did not apply to a suspect's second
statement, made while in custody as a result of unwarned first state-
ment obtained in violation of Miranda, because there was no actual
infringement of the suspect's constitutional rights); Michigan v.
Tucker, 417 U.S. 433, 445-46 & n.19 (1974) (refusing to apply
"tainted fruits" doctrine to the testimony of a witness whose identity
was discovered as a result of a statement obtained in violation of
Miranda); United States v. Elie, 111 F.3d 1135, 1141 (4th Cir. 1997)
(rejecting "application of the `fruit of the poisonous tree' doctrine to
physical evidence discovered as the result of a statement obtained in
violation of Miranda"); Correll v. Thompson, 63 F.3d 1279, 1289-91
(4th Cir. 1995) (refusing to apply "tainted fruits" doctrine to a third
confession obtained as a result of two earlier confessions obtained in
_________________________________________________________________

15 The dissent claims that we have "disembowel[ed] Edwards by dis-
missing [whether Howard initiated the discussion with his probation offi-
cer] as immaterial." See post at 42-43. Of course, we have done no such
thing. Whether Howard initiated the discussion with his probation officer
is material to whether his confession to Polk violated Edwards. Whether
Howard's confession to Polk violated Edwards, however, is immaterial
to the ultimate question of whether his subsequent confessions, which
were not made in violation of Edwards, must be suppressed as fruit of
the poisonous tree.

                   21
violation of Edwards), cert. denied, 116 S. Ct. 688 (1996). An
Edwards violation, like a Miranda violation, is not itself a constitu-
tional violation.16 In Arizona v. Roberson, 486 U.S. 675 (1988), the
Supreme Court explained that

        the prophylactic protections that the Miranda warnings pro-
        vide to counteract the "inherently compelling pressures" of
        custodial interrogation and to "permit a full opportunity to
        exercise the privilege against self-incrimination," are imple-
        mented by the application of the Edwards corollary that if
        a suspect believes that he is not capable of undergoing such
        questioning without advice of counsel, then it is presumed
        that any subsequent waiver that has come at the authorities'
        behest, and not at the suspect's own instigation, is itself the
        product of the "inherently compelling pressures" and not the
        purely voluntary choice of the suspect."

Id. at 681 (citations and quotations omitted)); see also id. at 682 ("The
Edwards rule . . . serves the purpose of providing `clear and unequiv-
ocal' guidelines to the law enforcement profession."); id. at 688 (Ken-
nedy, J., dissenting) (noting that "the rule of Edwards is our rule, not
a constitutional command"); Correll, 63 F.3d at 1290 (concluding that
"[a] breach of the rule established in Edwards is [ ] a technical viola-
tion of Miranda, not a Fifth Amendment violation."). Accordingly,
even if we were to accept Howard's argument that his statement to
Polk, including his request to speak to the FBI, was obtained in viola-
tion of Edwards, the "fruit of the poisonous tree" doctrine would not
bar admission of Howard's confessions to Agent Battle and Lieuten-
_________________________________________________________________

16 The dissent claims that our analysis "misses the whole point of
Edwards," because "[t]he Edwards rule operates even absent a constitu-
tional violation." See post at 43. Unfortunately, the dissent's criticism
misses the whole point of this case. We do not dispute that even a volun-
tary confession made in violation of Edwards must be suppressed. As a
result, Howard's confession to Polk, albeit voluntary, was inadmissible
if obtained in violation of Edwards. The question presented in this case,
however, is whether a statement made in violation of Edwards taints a
subsequent confession not made in violation of Edwards. It is the tainted
fruits doctrine, not the Edwards rule, that does not operate absent a con-
stitutional violation.

                    22
ant Hitchins. Only if Howard could show that his statement to Polk
was obtained in violation of his Fifth Amendment right against com-
pulsory self-incrimination and that insufficient time had passed to dis-
sipate the taint, might the "fruit of the poisonous tree" doctrine bar
admission of Howard's subsequent confessions to Agent Battle and
Lieutenant Hitchins. Cf. Correll, 63 F.3d at 1290 (holding that, under
Elstad, the first question that must be answered when determining
whether a subsequent confession is tainted by an earlier confession "is
whether the initial confession[ was] obtained in violation of [the
defendant's] Fifth Amendment rights -- i.e., whether [it was] invol-
untary -- or whether the confession[ was] voluntary but obtained in
technical violation of Miranda").

The Fifth Amendment guarantees that "[n]o person . . . shall be
compelled in any criminal case to be a witness against himself . . .
without due process of law." U.S. Const. Amend. V. Whether a state-
ment is voluntary within the meaning of the Fifth Amendment is a
mixed question of law and fact subject to de novo review. See Miller
v. Fenton, 474 U.S. 104, 111-12 (1985); Fields v. Murray, 49 F.3d
1024, 1030 (4th Cir.) (en banc), cert. denied, 116 S. Ct. 224 (1995).
The Supreme Court has held "that coercive police activity is a neces-
sary predicate to the finding that a [statement] is not `voluntary'
within the meaning of the Due Process Clause." Colorado v.
Connelly, 479 U.S. 157, 167 (1986); see also Elie, 111 F.3d at 1143.
Whether Howard's statement to Polk was the result of coercive con-
duct or activity can be answered only by reviewing the totality of the
circumstances under which the statement was made. See United States
v. Braxton, 112 F.3d 777, 781 (4th Cir.) (en banc), cert. denied, 118
S. Ct. 192 (1997).

Howard admitted that Polk did not promise him anything and spe-
cifically denied that Polk "coerced" him in return for his cooperation.
(App. at 1105.) In addition, Howard previously had numerous prior
encounters with federal, state, and local law enforcement authorities.
See United States v. Watson, 423 U.S. 411, 424-25 & n.14 (1976)
(noting that the absence of any indication that the defendant was a
"newcomer to the law" is an important factor in determining whether
consent was voluntary). He was a high school graduate and had
served in the military. Based on the totality of the circumstances, we
conclude that Howard's statements to Polk were not"involuntary"

                    23
within the meaning of the Fifth Amendment, and therefore, the "fruit
of the poisonous tree" doctrine is inapplicable to Howard's subse-
quent confessions to Agent Battle and Lieutenant Hitchins. See
Correll, 63 F.3d at 1291 (concluding that a third confession "could
not have been tainted" by initial confessions because although the ini-
tial confessions were obtained in violation of Edwards, they were not
obtained in violation of the Fifth Amendment).17 Accordingly, we
affirm the trial court's denial of Howard's motion to suppress them.

2.

Howard next contends that when the trial court decided to admit
the confessions in the guilt phase of the trial, it violated his Fifth
Amendment right not to testify and the rule of completeness by fail-
ing to admit the statements in their entirety.18 Based on the same rea-
_________________________________________________________________

17 The dissent suggests that "Edwards is now all but gone in the five
states of the Fourth Circuit." See post at 39. It is safe to say, however,
that the reports of Edwards' demise have been greatly exaggerated. Not-
withstanding today's decision, direct evidence obtained in violation of
Edwards is still inadmissible. As a result, had Howard not initiated con-
tact with the authorities, his subsequent confessions would have been
inadmissible. What the dissent inexplicably ignores, however, is that
Howard initiated the discussions with Agent Battle and Lieutenant
Hitchins, thereby waiving his previously invoked rights. Therefore, as
clear Supreme Court and Fourth Circuit precedents dictate, these subse-
quent confessions were admissible absent a constitutional violation. See
Oregon v. Elstad, 470 U.S. 298 (1985); Michigan v. Tucker, 417 U.S.
433 (1974); United States v. Elie, 111 F.3d 1135 (4th Cir. 1997); Correll
v. Thompson, 63 F.3d 1279 (4th Cir. 1996).

18 In United States v. Wenzel, 311 F.2d 164 (4th Cir. 1962), we held
that ordinarily a defendant's entire statement should be admitted under
the rule of completeness:

        When a confession is admissible, the whole of what the accused
        said upon the subject at the time of making the confession is
        admissible and should be taken together; and if the prosecution
        fails to prove the whole statement, the accused is entitled to put
        in evidence all that was said to and by him at the time which
        bears upon the subject of the controversy including any exculpa-
        tory or self-serving declarations connected therewith.

                    24
soning, he also challenges the trial court's limitation on his cross-
examinations of Agent Battle and Lieutenant Hitchins which pre-
vented them from relating to the jury any information regarding the
culpability of Weldon unless Weldon's own confession corroborated
it. We reject this argument because the trial court excluded only por-
tions of Howard's confession that inculpated Weldon and did not
exculpate Howard.

Due to Bruton considerations, the trial court directed Agent Battle
and Lieutenant Hitchins to omit from their testimony any part of
Howard's confessions that inculpated Weldon, his codefendant. See
Bruton v. United States, 391 U.S. 123, 133-34 & n.10 (1968) (holding
that the introduction of a jointly tried, non-testifying codefendant's
statement violates the Sixth Amendment Confrontation Clause if the
statement contains incriminating evidence concerning a defendant).19
_________________________________________________________________

Id. at 168 (citations omitted). The rule enunciated in Wenzel, partially
codified as Rule 106 of the Federal Rules of Evidence, is simply an evi-
dentiary rule, not a rule of constitutional law. See United States v.
Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996), cert. denied, 118 S. Ct. 341
(1997); Fed. R. Evid. 106 ("When a writing or recorded statement or part
thereof is introduced by a party, an adverse party may require the intro-
duction at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contemporaneously
with it."). State court trial rulings regarding the admission and exclusion
of evidence are cognizable in federal habeas corpus review only to the
extent that they violate specific constitutional provisions or are so egre-
gious as to render the entire trial fundamentally unfair, thereby violating
the Due Process Clause of the Fourteenth Amendment. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); Spencer v. Murray, 5 F.3d 758, 762
(4th Cir. 1993). First, we note that Howard's confessions, although tran-
scribed by Agent Battle and Lieutenant Hitchins from their notes of their
respective reports, were neither written by Howard, signed by Howard,
tape-recorded, nor introduced into evidence in written form. Therefore,
we question whether the rule of completeness even applies to this case.
See Wilkerson, 84 F.3d at 696 (holding that the rule of completeness "ap-
plies only to writings or recorded statements, not to conversations"). Fur-
thermore, even if the rule were to apply, we would conclude as a matter
of law that the exclusion of portions of Howard's confessions did not rise
to the level of a constitutional violation.

19 Howard and Weldon were tried jointly over their motions to sever.
Because Howard chose not to testify in the guilt or penalty phase of the

                    25
Howard's complete confessions, with their incriminating references to
Weldon, could have been used only if he and Weldon had been tried
separately or if Howard had been subject to cross-examination by
Weldon. The Supreme Court has clearly stated that separate trials are
not required under these circumstances:

        It would impair both the efficiency and the fairness of the
        criminal justice system to require, in all these cases of joint
        crimes where incriminating statements exist, that prosecu-
        tors bring separate proceedings, presenting the same evi-
        dence again and again, requiring victims and witnesses to
        repeat the inconvenience (and sometimes trauma) of testify-
        ing, and randomly favoring the last-tried defendants who
        have the advantage of knowing the prosecution's case
        beforehand. . . . Even apart from these tactical consider-
        ations, joint trials generally serve the interests of justice by
        avoiding the scandal and inequity of inconsistent verdicts.

Richardson v. Marsh, 481 U.S. 200, 210 (1987). The Court also has
rejected the alternative of foregoing the use of a codefendant's con-
fession because "[t]hat price also is too high, since confessions `are
more than merely "desirable"; they are essential to society's compel-
ling interest in finding, convicting, and punishing those who violate
the law.'" Id. at 210 (quoting Moran v. Burbine, 475 U.S. 412, 426
(1986)). Therefore, when analyzing its alternatives, the trial court is
called upon to balance the rights of the defendant, the rights of the
codefendant, society's interest in convicting only the guilty, and the
efficient administration of justice. After comparing the original state-
ments with the redactions, we agree with the district court that the
excluded statements were not exculpatory and that their exclusion did
not materially alter the meaning of the confessions. Thus, we find no
constitutional error and affirm.
_________________________________________________________________

trial, his confessions were admissible as statements against interest. His
statements inculpated Weldon, however, and so although the statements
were admissible against Howard, their admission in the absence of How-
ard's availability for cross-examination violated Weldon's rights under
the Confrontation Clause of the Sixth Amendment. The trial court
resolved the conflict by admitting Howard's statements, only after
redacting the portions implicating Weldon.

                    26
Agent Battle took handwritten notes of Howard's October 8, 1985,
confession. He later memorialized these notes in a typed report as fol-
lows:

         HOWARD noticed that there was "a lot of plastic in the
        car, like a seat cover or whatever." HOWARD "had the
        bright idea of using that to put her out - not kill her, just put
        her out."

         HOWARD placed the plastic over the female's head.
        RICK [Weldon] hit her several times in the stomach. When
        HOWARD "took the bag off, she was still, like maybe she
        was `playing possum'." HOWARD thought that he felt a
        pulse. RICK then "reapplied pressure." HOWARD"thought
        she was knocked out" but added, "I don't think I really
        cared, to be honest." He did not realize that she was dead
        until he was driving around looking for a place to leave her.
        At that time he touched her body, which felt cold, and real-
        ized that she was dead. HOWARD insisted "I'm being hon-
        est - I don't know if he killed her or I killed her."

(J.A. at 559.) Over Howard's objection, the trial court instructed
Agent Battle not to testify as to the portions of the confession incul-
pating Weldon, unless the inculpatory statement had been corrobo-
rated by Weldon's own statement. Agent Battle then testified:

        Q. What did Mr. Howard do next?

        A. Well, he said he noticed that there was a lot of plastic
        in the car, like seatcovers or something like that, and
        that he had the idea of using those plastic--that plastic
        material to--to put her out. He said not to kill her, just
        to put her out.

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

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

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

                    27
        A. He told me that Rick hit the woman in the stomach sev-
        eral times.

        Q. Did Mr. Howard eventually take the plastic off the vic-
        tim's head?

        A. Yes. He said he took the bag off her head or the plastic
        off her head and that the woman was still. He thought
        then that she was, and he used the words, I have them
        in quote [sic], "playing possum." He thought at that
        time that he had felt a pulse, that she was still alive. He
        said he thought that she was knocked out, but he said,
        "I don't think I really cared to be honest."

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

Lieutenant Hitchins also drafted a typed report of Howard's Octo-
ber 16, 1985, confession, based on his handwritten notes taken during
the interview. His report stated:

        [Howard] grabbed the girl and pushed her into her car and
        got in behind the wheel, and Rickey was driving their car.
        He stated that he drove to a place that had no houses around,
        and parked on the side of the road where he put a plastic bag
        over her head, and was going to make her pass out. He
        stated that he was holding the bag until she quit fighting and
        was going to turn [her] loose but Rickey grabbed the bag
        and held it. He stated that he got in the back seat and he
        grabbed and pulled her over the seat into the back while
        Rickey was helping him get her over the seat. They started
        to drive and that is when he noticed she was not breathing,
        and they stopped.

(J.A. at 553.) At trial, however, Lieutenant Hitchins, following the
trial court's redaction instructions, testified as follows:

        Q. What did they do when they got to the area where there
        were no houses around? Did they stop or keep going or
        --

                    28
        A. They stopped the vehicles, and at that point in time Mr.
        Howard placed the plastic bag over the victim's head.

        Q. Did he ever release the plastic bag from over the vic-
        tim's head?

        A. Yes, sir. He said that he held the bag over her head
        until she quit fighting, and then he released the bag.

        Q. What did they do or what did Mr. Howard say he did
        with the victim after he--after she quit fighting and he
        took the plastic bag off her head?

        A. Said that he got into the back seat of the victim's vehi-
        cle, started pulling the victim into the back seat, and at
        that time Mr. Weldon helped him put the victim in the
        back seat of her vehicle.

(J.A. at 573.) The redaction excludes Howard's statement that he
"was going to turn [the bag] loose but Rickey grabbed the bag and
held it."

Howard argues that the unredacted portions of both statements
show that Howard lacked the intent to kill because he released the
plastic when he thought that Le was still alive. Moreover, Howard
claims that the jury could have concluded from his original statements
that Weldon, not Howard, actually killed Le. Even accepting How-
ard's argument that the jury could have concluded from his complete
confessions that Howard did not intend to, and in fact did not, kill Le,
this assertion would not in any way diminish Howard's culpability for
Le's murder. As the trial court charged the jury under South Carolina
law:

        When one does an act in the presence of and with the assis-
        tance of another, the act is considered to have been done by
        both, and where two or more acting with a common design
        or intent are present at the commission of the crime, it mat-
        ters not by whose immediate agency the crime is committed,
        all are guilty. The hand of one is the hand of all.

                    29
(J.A. at 656.) In other words, the State had to prove only that Howard
and Weldon, working together and with malice aforethought, were
jointly responsible for Le's death. See S.C. Code Ann. § 16-3-10
(Law Co-op. 1985) (defining murder as "the killing of any person
with malice aforethought, either express or implied"). Therefore,
because South Carolina does not require that a defendant have spe-
cific intent to commit murder, nothing in Howard's original confes-
sions was exculpatory for Fifth Amendment purposes and in no way
diminished Howard's legal blameworthiness for the murder. See State
v. Foust, 479 S.E.2d 50, 51 (S.C. 1996) (holding that wrongful intent
to injure another may give rise to finding of malice to support verdict
of murder) (citing State v. Johnson, 352 S.E.2d 480, 481 (S.C. 1987)).
Nor did the redaction distort the meaning of the confessions. Accord-
ingly, we affirm the admission of the testimony concerning Howard's
confessions during the guilt phase of the trial.

3.

Although we have determined that the redactions did not violate
Howard's Fifth Amendment right not to testify, a different issue
arises when we consider whether the exclusion of the redacted state-
ments during the sentencing phase violated Howard's Eighth Amend-
ment rights. A defendant may present all relevant mitigating
circumstances to the sentencer for its consideration of whether to
impose the death penalty. See Lockett v. Ohio, 438 U.S. 586, 604
(1978). In Skipper v. South Carolina, 476 U.S. 1 (1986), the Supreme
Court held that the Eighth and Fourteenth Amendments require
admission of relevant mitigating evidence in the penalty phase of a
defendant's capital trial. Skipper, 476 U.S. at 4. The Court stated that
"in capital cases the `"sentencer . . . [may] not be precluded from con-
sidering, as a mitigating factor, any aspect of a defendant's character
or record and any of the circumstances of the offense that the defen-
dant proffers as a basis for a sentence less than death."'" Id. (quoting
Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett, 438
U.S. at 604)). In other words, "the sentencer may not refuse to con-
sider or be precluded from considering `any relevant mitigating evi-
dence.'" Id. (quoting Eddings, 455 U.S. at 114); see also Hitchcock
v. Dugger, 481 U.S. 393, 399 (1987) (a jury in a capital case must
consider not only statutory mitigating evidence, but also nonstatutory
factors as well).

                    30
Howard argues that the omitted portions of his confessions impli-
cate Weldon as Le's actual murderer, and therefore, although these
omitted portions may not be exculpatory under South Carolina law,
they nonetheless constitute mitigating evidence that Howard should
have been allowed to present to the jury during his cross-examination
of Agent Battle and Lieutenant Hitchins in the penalty phase of his
trial. Whether the trial court's rulings limited the jury's consideration
of mitigating evidence is a mixed question of law and fact. See
Kennedy v. Herring, 54 F.3d 678, 682 (11th Cir. 1995) (whether a
trial court's instructions to the jury improperly limited its consider-
ation of mitigating evidence is a mixed question of law and fact). As
such, we defer to the state court's findings of fact, but review its legal
conclusions de novo. After reviewing the record, we find ourselves in
complete agreement with both the South Carolina Supreme Court and
the district court. Both courts rejected Howard's claim, finding that
nothing in his confessions could be construed as mitigating. See State
v. Howard, 369 S.E.2d 132, 138 (S.C. 1988) (finding that "Howard's
unredacted confession contained no mitigating evidence," and there-
fore, that there was "no prejudice from its exclusion at the penalty
phase of the trial"); (J.A. at 299 (district court opinion) (concluding
that "there is nothing truly exculpatory or mitigating about the unre-
dacted statement[s]").) Therefore, we conclude that Howard's Eighth
Amendment rights were not violated.

In his confession to Agent Battle, Howard stated that he placed the
plastic over Le's head and held her until "she was still." He thought
Le was just "playing possum" and claimed that he "felt a pulse." He
said that after "Rick [Weldon] then reapplied pressure," he continued
to think that "she was knocked out." (J.A. at 559.) Only later, when
Howard and Weldon were looking for a place to leave Le's body, did
Howard realize that Le was dead. Howard then conceded "I'm being
honest -- I don't know if he killed her or I killed her." (J.A. at 599.)
When considered as a whole, Howard's unredacted confession in no
way suggests that he believed Weldon killed Le. Rather, he admitted
that even after Weldon's assault, Howard thought that Le was still
alive. Moreover, although Howard said that he thought she was only
unconscious when he released his grip and Weldon grabbed her, he
plainly conceded that he did not know whether he or Weldon actually
killed Le.

                     31
Similarly, in the unredacted version of Howard's confession to
Lieutenant Hitchins, Howard stated that "he put a plastic bag over
[Le's] head, and was going to make her pass out." Again, he claimed
that he held "the bag until she quit fighting and was going to turn
loose but Rickey [Weldon] grabbed the bag and held it." (J.A. at 553.)
Howard did not tell either Agent Battle or Lieutenant Hitchins that
Weldon actually killed Le. Rather, he simply stated that it was not
until they drove away, after both men had assaulted her, that he real-
ized she was not breathing. (J.A. at 553.)

Howard extracts two single phrases from the nine typed pages of
notes transcribed by Agent Battle and Lieutenant Hitchins and con-
strues them as a statement that Weldon, not Howard, actually killed
Le. To accept this characterization of the record requires a tortured
and speculative interpretation of two phrases lifted out of Howard's
confessions and complete disregard of the remainder of the statements
and the context of the phrases within them. In determining whether
the extracted phrases constitute "relevant mitigating evidence," we
cannot ignore the rest of Howard's account. When both statements are
reviewed in context, the alleged assertion of innocence is completely
negated by Howard's admission that he did not know whether he or
Weldon killed Le and that he thought she was "just knocked out,"
even after Weldon assaulted her. Moreover, Howard admitted to
Agent Battle that he drove the car that "bumped" Le; that he bran-
dished the .357 magnum handgun and forced Le back into her auto-
mobile; that he had the "bright idea" to cover Le's face with plastic
to "put her out"; that he put the plastic over Le's face; that he stated,
"Maybe it was because of the black beauties,20 but her death didn't
really bother me at all"; that he and Weldon removed all of Le's
clothes, washed her body with soda to remove any fingerprints, and
left her body in a deserted area among kudzu vines after again wash-
ing it in a mud puddle; and that he returned to Charlotte to dispose
of Le's personal effects. (J.A. 558-61.) In sum, we agree with the
South Carolina Supreme Court that Howard's confession, rather than
providing any mitigating evidence, clearly demonstrates that Howard
"actually was the leader and decision-maker." Howard, 369 S.E.2d at
138.21 We are firmly convinced that no reasonable juror could have
_________________________________________________________________

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

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

                   32
found that the unredacted portions of Howard's confession were evi-
dence that Weldon, rather than Howard, actually killed Le.22 Nothing
in the redactions altered Howard's personal culpability for Le's death.
Moreover, nothing in the redactions could be construed as mitigating
evidence in Howard's favor.

And finally, in response to Howard's argument that it was impor-
tant for the jury to know who actually killed Le, a reading of How-
ard's unredacted confession readily reveals Howard's own
uncertainty as to whether he or Weldon committed the final act of
murder. (J.A. at 559 ("Howard insisted `I'm being honest - I don't
know if [Weldon] killed her or I killed her.'").) There is simply no
evidence upon which a reasonable juror could conclude who killed Le.23
_________________________________________________________________

not inconsequential. As a result of this finding, the court vacated Wel-
don's sentence, concluding that the exclusion of the statements at issue
prevented Weldon from presenting relevant evidence in mitigation.

22 The only possible mitigating circumstance that could be inferred
from Howard's confession is that he lacked the intent to kill Le. In other
words, that he wanted only to render her unconscious and he released her
when he thought she was still alive. Howard presented his alleged lack
of intent to kill Le to the jury numerous times through the testimony of
Agent Battle and Lieutenant Hitchins. Agent Battle testified that How-
ard's original plan was merely to steal Le's car and not to harm her.
Agent Battle further stated that Howard reported that he intended to use
the plastic bag "`not [to] kill [Le], [but] just to put her out.'" (J.A. at
636.) Similarly, Lieutenant Hitchins testified that both Howard and Wel-
don consistently stated that their only purpose in coming to Greenville
that night was to steal a car and that neither man had any intention of
harming anyone. Based on the foregoing, we conclude that any error in
the exclusion of the statements regarding Howard's alleged lack of intent
was harmless because it could not have had a "substantial and injurious
effect or influence" on the jury's decision to recommend a sentence of
death for Howard. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). How-
ard's alleged lack of intent to kill Le was thoroughly presented to the
jury. See Buchanan v. Angelone, 103 F.3d 344, 349 (4th Cir. 1996) (find-
ing no constitutional violation when excluded mitigating evidence
"would have had only cumulative probative value"), cert. granted in
part, 117 S. Ct. 1551 (1997).

23 At this point, we must take issue with the dissent's dramatic, yet
unfounded, assertion that the majority holds that the identity of the actual

                    33
Moreover, contrary to the dissent's assertion that"anything that
makes Weldon look worse necessarily helps Howard," see post at 50,
Weldon's intent to kill Le is not mitigating evidence in favor of How-
ard. Weldon's state of mind is not relevant to the jury's determination
of the proper punishment for Howard because the Eighth Amendment
requires an individualized determination of sentencing in death pen-
alty cases. See Lockett v. Ohio, 438 U.S. 586, 604 (1978). In conclu-
sion, we agree with the South Carolina Supreme Court's finding that
his "unredacted confession contained no mitigating evidence," and
therefore, there was "no prejudice from its exclusion at the penalty
phase of the trial." State v. Howard, 369 S.E.2d 132, 138 (S.C. 1988).
Based on the foregoing, we reject Howard's Eighth Amendment
claims.

C.

Howard also contends that the trial court erroneously failed to
instruct the jury on the lesser included offense of manslaughter when
it recharged the jury on the elements of murder. The trial court origi-
nally charged the jury on both murder and manslaughter. During
deliberations the jury requested "the interpretation of the charge of
murder you previously provided." The trial court complied with the
request and repeated only the murder instruction. Howard did not
object. "Errors at trial not objected to, in contravention of State con-
temporaneous objection rules, are not cognizable in federal habeas
corpus proceedings, absent a showing of cause for non-compliance
and prejudice." Satterfield v. Zahradnick, 572 F.2d 443, 446 (4th Cir.
1978) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). We readily
dismiss Howard's claim, concluding that Howard was in no way prej-
udiced by the trial court's refusal to recharge a manslaughter instruc-
tion that was not requested and previously had been charged. See
_________________________________________________________________

killer in a crime involving multiple defendants is irrelevant for sentenc-
ing purposes. No one disputes that a defendant should be allowed to
present evidence demonstrating that he was not the "triggerman." How-
ever, in this case, as the dissent acknowledges, Howard admitted that he
did not know who actually killed Le. The dissent, therefore, argues that
evidence should have been admitted that simply does not exist, i.e., that
Weldon actually killed Le.

                    34
Sturges v. Matthews, 53 F.3d 659, 661 (4th Cir. 1995) ("A judgment
will be reversed for error in jury instructions `only if the error is
determined to have been prejudicial, based on a review of the record
as a whole.'" (quoting Wellington v. Daniels, 717 F.2d 932, 938 (4th
Cir. 1983))).

D.

Next, Howard contends that he was denied effective assistance of
counsel in violation of the Sixth Amendment because trial counsel
failed to investigate and present mitigating evidence during sentenc-
ing concerning his adaptability to prison, his military record, and his
school performance. A claim of ineffective assistance of counsel is a
mixed question of law and fact which we review de novo. See
Strickland v. Washington, 466 U.S. 668, 698 (1984). To prove a con-
stitutional claim for ineffective assistance of counsel, a defendant
must show both that his counsel's representation was deficient and
that he was prejudiced by the deficiency. See id. at 687. As to prison
adaptability, Howard's counsel offered into evidence several wit-
nesses who testified that Howard was capable of adapting to prison
life. Although counsel failed to submit evidence regarding Howard's
prior incarceration for armed robbery, he presented three North Caro-
lina law enforcement witnesses describing Howard's remorseful state
after Le's murder and his cooperation with the authorities surrounding
the instant charges. We agree with the state PCR court that Howard's
past prison record presented a "double[-]edge[d] sword" in that any
further evidence of Howard's prior federal prison experience may
have detrimentally highlighted his past criminal record. Regarding
counsel's failure to present evidence regarding his military record and
school performance, we agree with the other courts that have
reviewed the record that Howard's military and school history were,
at best, "checkered," and would have hurt him as much as helped him.24
Therefore, counsel's decision not to introduce his military and school
records into evidence was not deficient. See Bell v. Evatt, 72 F.3d
421, 429 (4th Cir. 1995) (noting that counsel's use of reasonable and
acceptable trial tactics does not constitute ineffectiveness), cert.
denied, 116 S. Ct. 2533 (1996).
_________________________________________________________________

24 For example, Howard was convicted of armed robbery while serving
as a military policeman.

                    35
E.

Howard claims that he was unduly prejudiced when the prosecutor,
during closing arguments in the sentencing phase of Howard's trial,
violated his Fifth Amendment right against self-incrimination by
improperly commenting on his failure to testify. The prosecutor made
the following remarks:

         In order to rehabilitate it must come from the heart. It's
        like an alcoholic. An alcoholic, you have to admit your
        problem before you can get treated. You're half way there
        if you admit your problem. For you to be able to rehabili-
        tate, you must start with remorse. Where is the remorse in
        this case? There is no remorse in this case. There is no
        remorse in the actions of Dana Weldon and Ronnie Howard,
        because one week later, they're out on another crime spree
        in Asheville, North Carolina. Where is the remorse? There
        is no remorse in Ronnie Howard. He told these witnesses,
        "I don't think I really cared." He told Mr. Lee Warren, the
        detective from Asheville, "Well, the first one bothered me
        some, but after that I really didn't care." Where is the
        remorse? There is none.

(App. at 1612-13.)

Although the Fifth Amendment forbids comment by the prosecu-
tion on a defendant's failure to testify, see Griffin v. California, 380
U.S. 609, 615 (1965), when a prosecutor's comments are merely "a
fair response to a claim made by defendant or his counsel," there is
no constitutional violation, see United States v. Robinson, 485 U.S.
25, 32 (1988). We agree with the South Carolina Supreme Court and
the federal district court, which both rejected Howard's claim, that
this statement was neither a direct nor an indirect comment on his
failure to testify. When considered in context, these remarks are a
simple repeat of the evidence demonstrating that Howard and Weldon
had robbed another store a mere week after murdering Le, and How-
ard's own statement that Le's death "really didn't bother him at all."
Moreover, these remarks were in direct response to defense counsel's
argument that Howard was remorseful for his actions. See id. Accord-
ingly, we conclude that the comments did not violate Howard's con-

                     36
stitutional rights and affirm the district court's denial of habeas relief
on this ground.

F.

Finally, Howard claims that his due process rights were violated
when the prosecution allowed the jury to use as scrap paper the
reverse side of outdated form letters, used by a previous prosecutor
to thank former jurors for their service. Howard claims that this action
was an impermissible ex parte communication between the prosecutor
and the jury. This argument is meritless.

In Remmer v. United States, 347 U.S. 227 (1954) (Remmer I), the
Supreme Court held that

        any private communication, contact, or tampering directly
        or indirectly, with a juror during a trial about the matter
        pending before the jury is, for obvious reasons, deemed pre-
        sumptively prejudicial, if not made in pursuance of known
        rules of the court and the instructions and directions of the
        court made during the trial, with full knowledge of the par-
        ties. The presumption is not conclusive, but the burden rests
        heavily upon the Government to establish, after notice to
        and hearing of the defendant, that such contact with the
        juror was harmless to the defendant.

Id. at 229. In accordance with Remmer I, we have established a three-
step process for analyzing allegations of ex parte juror contact. First,
the party attacking the verdict must introduce competent evidence that
there was an extrajudicial communication or contact, and that it was
"`more than innocuous interventions.'" United States v. Cheek, 94
F.3d 136, 141 (4th Cir. 1996) (quoting Haley v. Blue Ridge Transfer
Co., 802 F.2d 1532, 1537 n.9 (4th Cir. 1986)). If this requirement is
satisfied, the Remmer I presumption automatically arises. Then, the
burden shifts to the prevailing party to demonstrate"that there exists
no `reasonable possibility that the jury's verdict was influenced by an
improper communication.'" Id. (quoting Stephens v. South Atlantic
Canners, Inc., 848 F.2d 484, 488-89 (4th Cir. 1988)).

                     37
Years prior to Howard's trial, a former prosecutor printed numer-
ous copies of a form letter, which he sent to former jurors thanking
them for their service. Apparently in an effort to conserve resources,
the county clerk bound the unused form letters and used them, reverse
side up, for notepads. While the jury in Howard's trial was deliberat-
ing, they made notes on the scrap paper that had been provided. The
state PCR court, after conducting a full evidentiary hearing, found
that there was no evidence to suggest that any member of the prosecu-
tor's office attempted to contact any juror, directly or indirectly, or to
influence them. Moreover, there was no evidence presented to show
that the prosecutor, at any time prior to the state PCR hearing, had
any knowledge that the reverse side of the form letters had been used
as scrap paper. Accordingly, the state PCR court dismissed Howard's
claim, finding that no improper ex parte contact occurred.

The state PCR court's factual findings are entitled to a presumption
of correctness. See Rushen v. Spain, 464 U.S. 114, 120 (1983) (per
curiam) (a state court's post-trial finding of the effect of ex parte com-
munication on juror impartiality is a "fact" deserving "a high measure
of deference"); Johnson v. Maryland, 915 F.2d 892, 896 (4th Cir.
1990) (same). The substance of the ex parte communications and their
effect on juror impartiality are questions of historical fact entitled to
this presumption absent "convincing evidence" to the contrary. See
Rushen, 464 U.S. at 120. Here, the state court necessarily concluded
that the jury's deliberations were not biased. Howard has failed to
present evidence that the jurors even read the form letters, and thus
he fails to meet the first prong of the Remmer I test. Even assuming
that the jurors were aware of the form letters, we conclude that any
error was harmless as the form letters were nothing "more than innoc-
uous interventions," Cheek, 94 F.3d at 141, that had no "`substantial
and injurious effect or influence in determining the jury's verdict,'"
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)).

III.

In conclusion, finding no constitutional errors, we refuse to disturb
the conviction and sentence rendered against Howard by South Caro-
lina's state court system. Accordingly, we affirm the district court's
denial of habeas relief to Howard.

                     38
AFFIRMED

MICHAEL, Circuit Judge, dissenting:

Under Edwards v. Arizona, 451 U.S. 477 (1981), a suspect in cus-
tody only has to ask for a lawyer once. Thereafter, the suspect cannot
be questioned without counsel present unless he himself initiates the
contact with authorities. Here, Ronnie Howard invoked his Fifth
Amendment right to counsel one day before his federal probation offi-
cer came to see him. Howard's unwarned confession to the probation
officer prompted that officer to arrange a meeting between Howard
and the FBI, which, in turn, led to a meeting with a deputy sheriff.
Howard made separate Miranda-warned confessions to the FBI and
the deputy, and those two confessions were admitted at trial. The
majority holds that it is immaterial whether Howard initiated the
meeting with his probation officer because his confession to that offi-
cer was not actually coerced in a constitutional sense. Thus, according
to the majority, the resulting Miranda-warned confessions to the FBI
and the deputy were not tainted and were admissible. This holding is
in direct conflict with Edwards. Under Edwards, once a suspect asks
for a lawyer, there can be no police interrogation unless the suspect
initiates it. The majority has circumvented this rule, and Edwards is
now all but gone in the five states of the Fourth Circuit.

In addition, the majority ignores well-established Eighth Amend-
ment precedent that governs the admission of mitigating evidence at
sentencing. The state trial judge allowed only part of Howard's later
confessions to be introduced. The redacted confessions were admitted
for their truth, both at trial and at sentencing. Because of the redac-
tions, the jury never heard the climax of Howard's chilling story,
when he described how Weldon reapplied pressure to make sure the
victim died. The judge correctly excluded the redacted portions in the
guilt phase of the trial pursuant to Bruton v. United States, 391 U.S.
123 (1968), because they shifted blame to Weldon. In the penalty
phase, however, the full story should have come in: the Eighth
Amendment gives Howard the right to have the sentencing jury hear
any mitigating evidence about his personal history or the circum-
stances of the offense. The trial judge and the majority should have
recognized that any information that shifts ultimate blame to another
is, by definition, mitigating evidence about the circumstances of the

                    39
crime. Because the majority errs twice with respect to the confessions,
circumventing Edwards and ignoring the Eighth Amendment, I must
respectfully dissent.

I.

On September 12, 1985, Howard was arrested and jailed in North
Carolina for a robbery unrelated to the Chinh Le murder. Immediately
thereafter, South Carolina authorities sought to question Howard, but
his lawyer told them on September 18 and 24 that Howard could not
be interrogated unless he (the lawyer) was present. Howard and his
lawyer did meet with the South Carolina authorities on October 2, but
after an unsuccessful attempt to obtain immunity, Howard invoked his
right to counsel and refused to talk. The very next day Howard's fed-
eral probation officer, Heywood Polk, came to the Buncombe County
Jail to see Howard. The majority claims it is immaterial whether
Howard or Polk initiated this meeting. In any event, Howard's lawyer
was not notified about the meeting, and Polk did not give Howard the
Miranda warnings. Howard proceeded to confess to Polk "about
everything," including the Le murder and several other crimes.1
Polk's advice to Howard was directly contrary to that given by his
_________________________________________________________________

1 The majority assumes for purposes of its own analysis that Polk's
questioning of Howard was custodial interrogation. Yet the majority
would deny me the same assumption. See ante at 18-19 n.13. The
assumption is sound because Miranda and Edwards protections should
apply when a probation officer interrogates a suspect in custody before
indictment or trial. See United States v. Andaverde, 64 F.3d 1305, 1311
(9th Cir. 1995) ("[C]ustodial statements made to probation officers are
subject to the same voluntariness analysis as statements made to other
law enforcement officers"). Of course, a probation officer does not have
to give Miranda warnings before a non-custodial meeting, see Minnesota
v. Murphy, 465 U.S. 420, 431 (1984), or before a routine presentence
interview, see United States v. Hicks, 948 F.2d 877, 885 & n.8 (4th Cir.
1991). Here, Howard was in jail, and Polk was definitely not conducting
a presentence interview. Polk, then, was engaging in custodial interroga-
tion if his approach to Howard was "reasonably likely to elicit an incrim-
inating response." Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
Because Howard placed great trust and confidence in Polk, the meeting
predictably turned into a confessional. The premise of custodial interro-
gation is therefore reasonable.

                    40
lawyer: Polk convinced Howard to talk to the FBI in an attempt to get
a deal.2 On October 8, five days after his meeting with Polk, Howard
confessed to FBI agent Battle after signing a Miranda waiver. A week
later, on October 16, Howard again waived his Miranda rights and
confessed to Lieutenant Hitchins, a South Carolina sheriff's deputy.
Howard's lawyer was not notified about any of these meetings, even
though Howard had invoked his right to counsel only a few days ear-
lier, on October 2. At Howard's murder trial the state introduced
redacted versions of Howard's confessions to the FBI and the deputy.

The ultimate question is whether Edwards makes Howard's confes-
sions to the FBI and the deputy sheriff inadmissible.3 Edwards estab-
_________________________________________________________________

2 The majority, ante at 20, quotes Howard (from the suppression hear-
ing) on how he "opened up to [Heywood Polk] about everything." After
that testimony Howard continued as follows:

        Q . . . And as a result of opening up everything to [Polk], did
        part of that concern these charges that you are now on trial for
        your life for?

        A Yes, sir. I think--let's see, Heywood's exact words were,
        "You need to try to get as less time as possible off of this stuff."
        This is after I told him about the murders and other armed rob-
        beries and so forth, and he said that he had a friend in the F.B.I.
        that he was going to call to come up and talk to me in Buncombe
        County Jail.

App. at 1092.

3 The majority misreads Howard's briefs when it says that "Howard
does not contend that his confessions to Agent Battle and Lieutenant
Hitchins were made in violation of Edwards." Ante at 17. Howard builds
an argument based explicitly on Edwards, beginning with the following
summary:

        Howard . . . invoked his right to counsel, a right that was not
        respected when his federal parole officer approached and interro-
        gated him while he was still in custody on those charges. In the
        course of that interrogation Howard agreed to talk to other law
        enforcement officials, and eventually made statements to FBI
        Agent Battle and South Carolina Detectives Hitchins and Chris-
        tie. . . . The admission of these statements violated Howard's
        Fifth Amendment right against compulsory self-incrimination.

Appellant's Opening Brief at 49; see generally id. at 49-56; Appellant's
Reply Brief at 1-8.
                    41
lished a bright line rule: once a suspect in custody invokes his right
to counsel, he cannot be questioned again without counsel present
"unless the [suspect] himself initiates further communication,
exchanges, or conversations with the police." Edwards v. Arizona,
451 U.S. 477, 485 (1981).

The rule of Edwards supplements Miranda with added protection
for exercising the Fifth Amendment privilege against self-
incrimination. Before a jailed suspect has asked for a lawyer, he
receives only the basic Miranda protection, the irrebuttable presump-
tion that any unwarned statement to the police is involuntary (for
Miranda purposes) and therefore inadmissible. Once the suspect
invokes the right to counsel, however, he receives the added Edwards
protection:

        if a suspect believes that he is not capable of undergoing
        [custodial] questioning without advice of counsel, then it is
        presumed that any subsequent waiver that has come at the
        authorities' behest, and not at the suspect's own instigation,
        is itself the product of the "inherently compelling pressures"
        and not the purely voluntary choice of the suspect.

Arizona v. Roberson, 486 U.S. 675, 681 (1988). Again, once a suspect
asserts the right to counsel, police-initiated reinterrogation without
counsel is prohibited. Any confession resulting from police-initiated
reinterrogation is barred by Edwards even if the suspect waived his
Miranda rights and even if the confession was voluntary under tradi-
tional due process analysis. See id. at 686; see also Minnick v.
Mississippi, 498 U.S. 146, 151 (1990).

In this case, we know little about what Howard was thinking as he
sat in the Buncombe County Jail. But we do know one thing: he
invoked his right to counsel on October 2, 1985, and he flatly refused
to talk to the police. Thus, unless Howard himself initiated further
discussions with the authorities, the confessions he made in response
to questioning by his probation officer, the FBI, and the deputy are
all inadmissible. That is the clear command of Edwards.

The first question is whether Howard initiated the discussion with
his probation officer. The majority disembowels Edwards by dismiss-

                    42
ing this question as immaterial. As Justice Kennedy, writing for the
Court, has explained, "[t]he merit of the Edwards decision lies in the
clarity of its command and the certainty of its application." Minnick,
498 U.S. at 151. The majority ignores this guidance from the Supreme
Court and constructs a complex detour around the clear mandate of
Edwards. First, it says that Edwards is not a constitutional rule. Sec-
ond, it assumes that Howard's statement to Polk, including his agree-
ment to speak to the FBI, was obtained in violation of Edwards. Thus,
it does not matter if the probation officer initiated the meeting. Third,
the majority says that notwithstanding any Edwards violation, How-
ard's subsequent confessions to the FBI and the deputy are admissible
unless the "fruit of the poisonous tree" doctrine applies. In other
words, if Howard's October 3rd confession to Polk was voluntary
(not coerced) under traditional Fifth Amendment standards, there is
no "poisonous tree" and the subsequent (resulting) confessions are not
"tainted fruits." Using this analysis, the majority quickly finds that
"Howard's statements to Polk were not `involuntary' within the
meaning of the Fifth Amendment,"4 ante at 23-24, and concludes that
the later confessions were not "tainted fruits."

The majority's approach misses the whole point of Edwards. The
Edwards rule operates even absent a constitutional violation. See
Roberson, 486 U.S. at 681-82. Thus, the majority's focus on just the
voluntariness of Howard's statement to Polk is wholly misplaced.
Edwards emphasizes that whether a confession is voluntary and
whether a suspect has validly waived his already invoked right to
counsel "are discrete inquiries." Edwards, 451 U.S. at 484. In
Edwards, Robert Edwards asked for a lawyer the night of his arrest.
The next morning two detectives came to the jail to see Edwards and
advised him of his Miranda rights. They got a confession, and the
state courts held it to be voluntary and admissible. The Supreme
Court reversed on the admissibility point:

       We now hold that when an accused has invoked his right to
       have counsel present during custodial interrogation, a valid
       waiver of that right cannot be established by showing only
       that he responded to further police-initiated interrogation
       even if he has been advised of his rights.
_________________________________________________________________

4 I repeat that Polk did not give Miranda warnings to Howard.

                    43
Id. (emphasis added). Thus, even though Edwards' confession was
voluntary, it was inadmissible because he had not initiated the contact
with the police. With respect to Howard, it makes no difference that
the majority finds Howard's confession to Polk to be voluntary under
traditional Fifth Amendment standards. Voluntariness is still the
wrong inquiry. The only relevant question is whether Howard himself
initiated communication with Polk, thereby waiving his previously
invoked right to counsel.5

The whole problem with the majority's approach is that it never
focuses on whether any of Howard's confessions -- the first to Polk
and the second and third to Battle and Hitchins-- were made after
a valid waiver of his once-asserted right to counsel. Instead, the
majority holds that Edwards protection is broken with one "volun-
tary" (uncoerced) statement, made without Miranda warnings. The
practical consequence of this holding is quite significant. Even though
a jailed suspect has invoked his right to counsel, the police can now
send in an interrogator who gets a confession (without counsel pres-
ent) that is not coerced under traditional Fifth Amendment analysis.
This allows the police to send in (still without counsel present) addi-
tional interrogators who get Miranda waivers and new, "untainted"
confessions. The later confessions are admissible because the first
was not coerced, even though all were obtained in blatant violation
of Edwards.

I am convinced that the Supreme Court did not intend for the bright
line rule of Edwards to be circumvented in this way. Indeed, the
Supreme Court has indicated that fresh sets of Miranda warnings in
subsequent police-initiated interrogation do not overcome the pre-
sumption that the suspect who has invoked his right to counsel
believes he cannot cope with interrogation without his lawyer at his
side. See Roberson, 468 U.S. at 686 ("[W]e . . . disagree with [the
state's] contention that fresh sets of Miranda warnings will `reassure'
_________________________________________________________________

5 The majority's resurrection of the "voluntariness" question tramples
on the simplicity of Edwards: "Edwards conserves judicial resources
which would otherwise be expended in making difficult determinations
of voluntariness, and implements the protections of Miranda in practical
and straightforward terms." Minnick v. Mississippi, 498 U.S. 146, 151
(1990).

                    44
a suspect who has been denied the counsel he has clearly requested
that his rights remain untrammeled."). There is only one conclusion:
Miranda-warned confessions, such as those Howard gave to the FBI
and the deputy sheriff, are inadmissible if they are set up by an earlier
Edwards violation.

The majority's rationale for undermining Edwards appears to be
based on a misapplication of Oregon v. Elstad, 470 U.S. 298 (1985),
a case that is quite different from Edwards and Howard's case. In
Elstad, when the police went to the home of the accused (Elstad) to
arrest him, he admitted his involvement in the crime before he was
given his Miranda rights. After Elstad was taken to the station, the
police read him his rights; he then waived his right to counsel and
gave a full confession. The Court noted that Elstad's prior unwarned
statement, although inadmissible under Miranda, was not coerced. As
a result, the first statement did not "compromise[ ] the voluntariness
of [the] subsequent informed waiver," and the second statement was
held admissible. Id. at 312. In direct contrast to the situation in
Edwards, however, Elstad did not request counsel before making his
first incriminating statement to the police. This distinction is critical.
A defendant may give a statement to the police before receiving his
Miranda warnings out of lack of awareness of his rights. In that case,
"a careful and thorough administration of Miranda warnings serves to
cure the condition that rendered the unwarned statement inadmissi-
ble." Id. at 310-11. Any statement made after the Miranda warnings,
therefore, is not tainted by the fact of a prior unwarned statement. But
where the defendant requests counsel at the outset, the refusal to
honor this request creates an atmosphere conducive to coercion,
which the mere repetition of Miranda warnings cannot overcome. See
Roberson, 486 U.S. at 686. That is why a request for counsel gives
rise to a presumption of coercion that taints all future statements made
outside the presence of counsel, unless the accused himself initiates
later discussions with police.

Here the state maintains that Howard initiated the meeting with
Polk, and there appears to be support for that argument in the record
of state proceedings. Howard vehemently disagrees. In light of this,
instead of rushing to scuttle Edwards, I would remand this case to the
district court for it to determine who initiated the Howard-Polk meet-
ing of October 3. If Howard initiated it, there is no Edwards violation.

                    45
In sum, the majority's premature move to obliterate the bright line
rule of Edwards is contrary to clear precedent. The Supreme Court
has repeatedly affirmed the principle set out in Edwards that once a
defendant invokes his right to counsel, any later confession resulting
from police-initiated interrogation must be suppressed. See, e.g.,
Smith v. Illinois, 469 U.S. 91 (1984) (per curiam) (reversing convic-
tion because police continued to interrogate defendant after he
invoked his right to counsel, even though his resulting confession was
voluntary and not the product of coercion); Arizona v. Roberson, 486
U.S. 675 (1988) (reversing conviction where police initiated interro-
gation and obtained incriminating statements after defendant had
invoked his right to counsel, even though questioning related to sepa-
rate investigation); Minnick v. Mississippi, 498 U.S. 146 (1990)
(reversing conviction where defendant was interrogated without a
lawyer after he had invoked his right to counsel, even though his law-
yer was "made available" outside interrogation room); Davis v.
United States, 512 U.S. 452, 458 (1994) ("But if a suspect requests
counsel at any time during the interview, he is not subject to further
questioning until a lawyer has been made available or the suspect
himself reinitiates conversation." (citing Edwards)). This unambigu-
ous and continuing reaffirmance of the rule in Edwards means that
unless Howard initiated the meeting with Polk, the resulting confes-
sions Howard made to the FBI and the deputy sheriff were inadmissi-
ble. The Supreme Court has left no room for maneuver when it comes
to Edwards.

The thrust of the majority's criticism of my dissent is that I "ig-
nore[ ] . . . that Howard initiated the discussions with" the FBI. Ante
at 24 n.17. In making this criticism, however, the majority ignores the
full circumstances under which Howard "initiated" further contact
with the authorities. According to the majority's reasoning, it is
immaterial if Howard's "request" to talk with the FBI came in a state-
ment (to Polk) obtained in violation of Edwards so long as the state-
ment was "voluntary" in a constitutional sense. The majority's
approach thus allows police to violate Edwards in one interrogation
in order to get a waiver of Edwards for the next round of questioning.
That approach is wrong, and it obliterates the clarity and protection
of the bright line rule. The Edwards line of cases requires us to start
with the suspect's request for counsel -- a constitutionally significant
act -- and work forward from there. After the request for counsel is

                    46
made, there can be no interrogation unless the suspect initiates it with-
out any prodding from the authorities. If Howard did not initiate the
meeting with Polk, his entire statement to Polk, including his "re-
quest" to speak to the FBI, was obtained in violation of Edwards. The
Edwards rule is meaningless if the police can use a request gotten in
violation of Edwards to prove that a confession taken a few days later
satisfies Edwards.

II.

Even if the confessions (to the FBI and the sheriff's deputy) were
admissible, Howard should have been able to present the unredacted
versions at his sentencing. The sentencing jury was given the follow-
ing, incomplete story of Howard's confession: Howard held the plas-
tic bag over Ms. Le's head to make her pass out but not to kill her.
He then released the bag, believing that she had simply passed out
and that she still had a pulse. He later realized as he and Weldon
drove around that Ms. Le was dead. Howard admitted that he could
not say who actually killed her.

There is a big gap in Howard's brutal story that the jury never
heard. The jury was not told that when Howard released the bag, Wel-
don grabbed it, held it over Ms. Le's head, and reapplied pressure.
Because of this omission, the sentencing jury was not allowed to hear
Howard's assertion that Weldon likely committed the act that killed
Ms. Le. Howard argues that the jury was required to consider whether
this mitigated his own moral responsibility for the murder. Howard
is correct that moral culpability is always relevant to sentencing: "Our
capital cases have consistently recognized that`[f]or purposes of
imposing the death penalty . . . [the defendant's] punishment must be
tailored to his personal responsibility and moral guilt.'" South Caro-
lina v. Gathers, 490 U.S. 805, 810 (1989) (quoting Edmund v.
Florida, 458 U.S. 782, 801 (1982) (alteration in original)).6
_________________________________________________________________

6 Howard and Weldon were, of course, acting together. I therefore
agree with the majority that Howard's statement about Weldon's final act
does not change Howard's legal culpability for the murder under South
Carolina law. In capital sentencing, however, the jury must make moral
judgments that go beyond the question of legal responsibility.

                    47
The Eighth Amendment provides a capital defendant the broadest
latitude to offer evidence at sentencing to avoid the death penalty. The
general rule is that the jury must consider any mitigating evidence,
that is, "any aspect of a defendant's character or record or any of the
circumstances of the offense that the defendant proffers as a basis for
a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978)
(plurality opinion). The only question here, as the majority acknowl-
edges, is whether any reasonable juror could have found the redacted
portion of the confession to be mitigating. See ante at 32-33 (holding
that "[w]e are firmly convinced that no reasonable juror could have
found that the unredacted portions of Howard's confession were evi-
dence that Weldon, rather than Howard, actually killed Le").

Howard's effort to offer his full confession is a perfect example of
what the Supreme Court meant in Eddings v. Oklahoma, 455 U.S. 104
(1982), when it said that a capital defendant has the right to present
at the sentencing phase all evidence about the "circumstances of the
offense." The circumstances of the murder in this case are key. Of
course, it is true that Howard did not have to be the "triggerman" to
be eligible for the death penalty. See Tison v. Arizona, 481 U.S. 137
(1987). Eligibility, however, does not mean that capital punishment
must be imposed. A jury can sentence a person to death in accordance
with the Eighth Amendment only after it considers all of the mitigat-
ing evidence the defendant wishes to present. See Lockett, 436 U.S.
at 608 (holding that defendant's relatively minor participation in the
crime is a mitigating factor that sentencer must consider); Hitchcock
v. Dugger, 481 U.S. 393 (1987) (Scalia, J.) (holding for a unanimous
Court that sentencer in capital case must consider an extensive list of
non-statutory mitigating factors). Howard must be allowed to present
his side of the story.

The majority mistakenly assumes that the redacted evidence is only
relevant to Howard's intent to kill. But it has a broader relevance for
sentencing purposes: it sheds light on whether Howard or Weldon
committed the ultimate act that caused Ms. Le's death. Indeed, even
though Howard admitted he could not be sure who killed Ms. Le, a
jury could find that Howard is less blameworthy from a moral stand-
point than Weldon. This is because Weldon committed a conscious
act to make sure Ms. Le would die. I readily concede that making a
moral distinction here is extremely difficult. Is a murderer who

                    48
chokes a victim until she loses consciousness as culpable morally as
one who chokes her after she is unconscious, just to make sure she
is dead? What if he chokes the murder victim, but lets go when he
thinks she is just unconscious? What if he restrains the victim while
another chokes her to death? The law tells us who is legally responsi-
ble for the murder in each case. The law does not tell us whether the
death penalty should be imposed in each case. It tells us only that the
jury must have all the facts before making the sentencing decision.

A capital defendant is given broad latitude to offer mitigating evi-
dence because "`the penalty of death is qualitatively different'" than
any other sentence. See Lockett, 438 U.S. at 604 (quoting Woodson
v. North Carolina, 428 U.S. 280, 304 (1976)). The death penalty's
irrevocable end has prompted the Supreme Court to require the sen-
tencer in capital cases to consider a defendant's violent and troubled
youth, see Eddings v. Oklahoma, 455 U.S. 104 (1982); good behavior
in prison, see Skipper v. South Carolina, 476 U.S. at 1, 4-5 (1986);
history of child abuse and emotional problems, see Penry v. Lynaugh,
492 U.S. 302 (1989); ineligibility for parole, see Simmons v. South
Carolina, 512 U.S. 154, 162 (1994); poverty-ridden childhood, see
Hitchcock, 481 U.S. at 397; good deeds as an affectionate uncle, see
id.; and childhood habit of inhaling gas fumes, see id.

Thus, virtually no limits are placed on a capital defendant's ability
to introduce mitigating evidence concerning his personal circum-
stances and the circumstances of his crime. See Eddings, 455 U.S. at
112. The majority makes this court the first to hold that when two or
more are guilty of the same murder, evidence about the identity of the
actual killer is not relevant in mitigation at the sentencing phase. This
position is particularly questionable in light of the Supreme Court's
holding in Green v. Georgia, 442 U.S. 95 (1979) (per curiam). In that
case the trial court refused to admit a statement by a third party that
Green's partner in an abduction had murdered the victim outside of
Green's presence. The Supreme Court reversed Green's capital sen-
tence because "the excluded testimony was highly relevant to a criti-
cal issue in the punishment phase of a trial," namely whether Green
participated directly in the murder. Id. at 97 (citing Lockett); see also
Chaney v. Brown, 730 F.2d 1334, 1357 (10th Cir. 1984) (upholding
conviction but vacating death sentence because "[t]he withheld
reports contained important mitigating evidence supporting the infer-

                    49
ence that another person or persons were involved in the kidnappings
and murders, and that [the defendant] may not have personally killed
the victims").

One theme underlies the Lockett and Eddings line of cases: the sen-
tencing jury alone, armed with the complete story, must decide the
question of the capital defendant's moral culpability. Yet here the
majority steps into the jury box, reviews the unredacted statements,
and decides the question of moral culpability against Howard. See
ante at 33 ("Nothing in the redactions altered Howard's personal cul-
pability for Le's death. Moreover, nothing in the redactions could be
construed as mitigating evidence in Howard's favor."). The majority's
judgment is based on three determinations that must be left for a jury.
First, the majority indicates that the omitted assertion (Weldon likely
killed the victim) is negated by the rest of what Howard said. But the
state introduced most of what Howard said for its truth, suggesting
that he was not completely unreliable. Compare Green, 442 U.S. at
97 (noting that prosecution had introduced Green's confession in guilt
phase). It is the jury, and not this court, who should decide whether
the rest of what Howard said is reliable. Second, the majority notes
that the unredacted confessions reveal Howard's own uncertainty
about "whether he or Weldon committed the final act of murder."
Ante at 33. It is true that Howard could not be sure that he removed
the plastic bag in time. But a jury could decide that this uncertainty
makes him less culpable than Weldon, who was a calculated and
deliberate killer. Third, the majority suggests that the redacted portion
simply inculpates Weldon instead of helping Howard. In this case,
however, anything that makes Weldon look worse necessarily helps
Howard because relative blameworthiness could be important to the
jury in deciding whether to sentence one or both to death. Indeed, rel-
ative blameworthiness was important to one of the jurors on the panel
that voted to sentence Howard to death. This juror was asked in voir
dire about a murder case she was familiar with where three defen-
dants were convicted of murder but only one was given the death pen-
alty:

        Q. And what did you feel about Pierce's sentence?

        A. Well, I understand he was the only one that they
        decided killed her, and the other two also participated

                    50
        in the crime, but I understood the reason that he was
        sentenced to death was because he took the initiative to
        kill.

        Q. All right. And what was your feeling about Pierce's
        sentence?

        A. Well, like I said, I was not in the courtroom. I didn't
        hear all the -- I read the paper, I kept up with it
        through friends, and I'm sure that the -- I mean I
        trusted the jury's decision.

        Q. Did you have any question that they all should have
        gotten the death penalty or none should have gotten the
        death penalty?

        A. I wasn't surprised that the other two didn't get the
        death penalty. I can understand how they decided that.

        Q. Why weren't you surprised?

        A. Because Pierce was the one who killed her.

J.A. 368-69. This voir dire reveals that, if given a fully informed
choice, a jury could choose to execute only the most morally culpable
among a group of murderers. Howard's jury was prevented from
making that informed choice.7
_________________________________________________________________

7 The majority also claims that excluding these statements was merely
harmless error. The difficulty of reconstructing the moral decision that
capital sentencing demands suggests, at a minimum, that in order to be
deemed harmless, the evidence must be irrelevant or trivial. In Hitchcock
the unanimous Supreme Court held that the prosecution has the burden
to prove that the defendant was not prejudiced by the exclusion of miti-
gating evidence. See Hitchcock, 481 U.S. at 397; see also O'Neal v.
McAninch, 513 U.S. 432 (1995). The state has not even attempted to
meet that burden here. In any event, the voir dire demonstrates that we
cannot say with any confidence that the jury would have come back with
the same verdict of death if it had heard the full confession. When a court
is "in grave doubt about whether a trial error of federal law had a `sub-

                    51
The jury sentenced Howard to death without hearing his whole
story to the authorities about the circumstances of the crime. The jury
never knew that he claimed it was Weldon who likely committed the
ultimate act of murder. Howard should not be put to death unless a
jury rejects the mitigating evidence that was barred from his sentenc-
ing.

III.

In sum, I respectfully dissent for two reasons. First, the majority
ignores Edwards and holds that it is immaterial whether Howard (who
had invoked his right to counsel) initiated the contact with authorities
that led to his confessions. Second, the majority ignores the Eighth
Amendment and cases such as Lockett and Eddings when it usurps the
jury's role and decides that it was not mitigating when Howard said
that Weldon took the final step to kill the victim. A jury must hear
that statement before it decides whether Howard should die.

Judges Hall, Murnaghan, and Motz join in this dissent.
_________________________________________________________________

stantial and injurious effect or influence in determining the jury's ver-
dict,' that error is not harmless. And, the petitioner must win." O'Neal,
513 U.S. at 436. Sufficient doubt is created here because the voir dire
reveals that at least one juror might consider evidence that Howard did
not actually kill the victim to be mitigating.

                    52
