Darden v. Wainwright

477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144, 1986 U.S. LEXIS 113

• Court: Supreme Court of the United States
• Decided: September 3, 1986
• Docket: 85-5319
• Status: Published

Opinions

Justice Powell

delivered the opinion of the Court.

This case presents three questions concerning the validity of petitioner’s criminal conviction and death sentence: (i) whether the exclusion for cause of a member of the venire violated the principles announced in Wainwright v. Witt, 469 U. S. 412 (1985); (ii) whether the prosecution’s closing argument during the guilt phase of a bifurcated trial rendered the trial fundamentally unfair and deprived the sentencing determination of the reliability required by the Eighth Amendment; and (iii) whether petitioner was denied effective assistance of counsel at the sentencing phase of his trial.

h — I

Petitioner was tried and found guilty of murder, robbery, and assault with intent to kill in the Circuit Court for Citrus County, Florida, in January 1974. Pursuant to Florida’s capital sentencing statute, the same jury that convicted petitioner heard further testimony and argument in order to make a nonbinding recommendation as to whether a death sentence should be imposed. The jury recommended a death sentence, and the trial judge followed that recommendation. On direct appeal, the Florida Supreme Court affirmed the conviction and the sentence. Petitioner made several of the same arguments in that appeal that he makes here. With respect to the prosecutorial misconduct claim, the court disapproved of the closing argument, but reasoned that the law required a new trial “only in those cases in which it is reasonably evident that the remarks might have influenced the jury to reach a more severe verdict of guilt ... or in which the comment is unfair.” Darden v. State, 329 So. 2d 287, 289 (1976). It concluded that the comments had not rendered petitioner’s trial unfair. Petitioner’s challenge to the juror exclusion was rejected without comment. Petitioner did not at that time raise his claim of ineffective assistance of counsel. This Court granted certiorari, 429 U. S. 917 (1976), limited the grant to the claim of prosecutorial misconduct, 429 U. S. 1036 (1977), heard oral argument, and dismissed the writ as improvidently granted, 430 U. S. 704 (1977).

Petitioner then sought federal habeas corpus relief, raising the same claims he raises here. The District Court denied the petition. Darden v. Wainwright, 513 F. Supp. 947 (MD Fla. 1981). A divided panel of the Court of Appeals for the Eleventh Circuit affirmed. Darden v. Wainwright, 699 F. 2d 1031 (1983). The Court of Appeals granted rehearing en banc, and affirmed the District Court by an equally divided court. 708 F. 2d 646 (1983). Following a second rehearing en banc the Court of Appeals reversed on the claim of improper excusal of a member of the venire. 725 F. 2d 1526 (1984). This Court granted the State’s petition for certiorari on that claim, vacated the Court of Appeals’ judgment, and remanded for reconsideration in light of Wainwright v. Witt. 469 U. S. 1202 (1985). On remand, the en banc court denied relief, 767 F. 2d 752 (1985). Petitioner filed an application for a stay of his execution that this Court treated as a petition for certiorari and granted, at the same time staying his execution. 473 U. S. 928 (1985). We now affirm.

I — I h-H

Because of the nature of petitioner s claims, the facts of this case will be stated in more detail than is normally necessary in this Court. On September 8, 1973, at about 5:30 p.m., a black adult male entered Carl’s Furniture Store near Lakeland, Florida. The only other person in the store was the proprietor, Mrs. Turman, who lived with her husband in a house behind the store. Mr. Turman, who worked nights at a juvenile home, had awakened at about 5 p.m., had a cup of coffee at the store with his wife, and returned home to let their dogs out for a run. Mrs. Turman showed the man around the store. He stated that he was interested in purchasing about $600 worth of furniture for a rental unit, and asked to see several different items. He left the store briefly, stating that his wife would be back to look at some of the items.

The same man returned just a few minutes later asking to see some stoves, and inquiring about the price. When Mrs. Turman turned toward the adding machine, he grabbed her and pressed a gun to her back, saying “Do as I say and you won’t get hurt.” He took her to the rear of the store and told her to open the cash register. He took the money, then ordered her to the part of the store where some box springs and mattresses were stacked against the wall. At that time Mr. Turman appeared at the back door. Mrs. Turman screamed while the man reached across her right shoulder and shot Mr. Turman between the eyes. Mr. Turman fell backwards, with one foot partially in the building. Ordering Mrs. Turman not to move, the man tried to pull Mr. Turman into the building and close the door, but could not do so because one of Mr. Turman’s feet was caught in the door. The man left Mr. Turman faceup in the rain, and told Mrs. Turman to get down on the floor approximately five feet from where her husband lay dying. While she begged to go to her husband, he told her to remove her false teeth. He unzipped his pants, unbuckled his belt, and demanded that Mrs. Turman perform oral sex on him. She began to cry “Lord, have mercy.” He told her to get up and go towards the front of the store.

Meanwhile, a neighbor family, the Arnolds, became aware that something had happened to Mr. Turman. The mother sent her 16-year-old son Phillip, a part-time employee at the furniture store, to help. When Phillip reached the back door he saw Mr. Turman lying partially in the building. When Phillip opened the door to take Turman’s body inside, Mrs. Turman shouted “Phillip, no, go back.” Phillip did not know what she meant and asked the man to help get Turman inside. He replied, “Sure, buddy, I will help you.” As Phillip looked up, the man was pointing a gun in his face. He pulled the trigger and the gun misfired; he pulled the trigger again and shot Phillip in the mouth. Phillip started to run away, and was shot in the neck. While he was still running, he was shot a third time in the side. Despite these wounds, Phillip managed to stumble to the home of a neighbor, Mrs. Edith Hill. She had her husband call an ambulance while she tried to stop Phillip’s bleeding. While she was helping Phillip, she saw a late model green Chevrolet leave the store and head towards Tampa on State Highway 92. Phillip survived the incident; Mr. Turman, who never regained consciousness, died later that night.

Minutes after the murder petitioner was driving towards Tampa on Highway 92, just a few miles away from the furniture store. He was out on furlough from a Florida prison, and was driving a car borrowed from his girl friend in Tampa. He was driving fast on a wet road. Petitioner testified that as he came up on a line of cars in his lane, he was unable to slow down. He attempted to pass, but was forced off the road to avoid a head-on collision with an oncoming car. Petitioner crashed into a telephone pole. The driver of the oncoming car, John Stone, stopped his car and went to petitioner to see if he could help. Stone testified that as he approached the car, petitioner was zipping up his pants and buckling his belt. Police at the crash site later identified petitioner’s car as a 1969 Chevrolet Impala of greenish golden brown color. Petitioner paid a bystander to give him a ride to Tampa. Petitioner later returned with a wrecker, only to find that the car had been towed away by the police.

By the time the police arrived at the scene of the accident, petitioner had left. The fact that the car matched the description of the car leaving the scene of the murder, and that the accident had occurred within three and one-half miles of the furniture store and within minutes of the murder, led police to suspect that the car was driven by the murderer. They searched the area. An officer found a pistol — a revolver — about 40 feet from the crash site. The arrangement of shells within the chambers exactly matched the pattern that should have been found in the murder weapon: one shot, one misfire, followed by three shots, with a live shell remaining in the next chamber to be fired. A specialist for the Federal Bureau of Investigation examined the pistol and testified that it was a Smith & Wesson .38 special revolver. It had been manufactured as a standard .38; it later was sent to England to be rebored, making it a much rarer type of gun than the standard .38. An examination of the bullet that killed Mr. Turman revealed that it came from a .38 Smith & Wesson special.

On the day following the murder petitioner was arrested at his girl friend’s house in Tampa. A few days later Mrs. Turman identified him at a preliminary hearing as her husband’s murderer. Phillip Arnold selected petitioner’s picture out of a spread of six photographs as the man who had shot him.¹ By that time, a Public Defender had been appointed to represent petitioner.

As petitioner’s arguments all relate to incidents in the course of his trial, they will be taken up, together with the relevant facts, in chronological order.

( — I h-H

Petitioner contends that one member of the venire, Mr. Murphy, was excluded improperly under the test enunciated in Wainwright v. Witt, 496 U. S. 412 (1985). That case modified this Court’s opinion in Witherspoon v. Illinois, 391 U. S. 510 (1968). Witherspoon had held that potential jurors may be excused for cause when their opposition to the death penalty is such that they automatically would vote against a sentence of death or would be impaired in the task of determining defendant’s guilt. Witt held that the proper test is whether the juror’s views on capital punishment would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” 469 U. S., at 424, quoting Adams v. Texas, 448 U. S. 38, 45 (1980). Witt also made clear that the trial judge’s determination that a potential juror is impermissibly biased is a factual finding entitled to a presumption of correctness under 28 U. S, C. §2254.

Petitioner’s argument on this issue relies solely on the wording of a question the trial court asked Murphy before excluding him. The court asked: “Do you have any moral or religious, conscientious moral or religious principles in opposition to the death penalty so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts?” App. 9. Petitioner argues that this question does not correctly state the relevant legal standard. As Witt makes clear, however, our inquiry does not end with a mechanical recitation of a single question and answer. 469 U. S., at 424-426. We therefore examine the context surrounding Murphy’s exclusion to determine whether the trial court’s decision that Murphy’s beliefs would “substantially impair the performance of his duties as a juror” was fairly supported by the record.

During voir dire, but prior to individual questioning on this point, the trial court spoke to the entire venire, including Murphy, saying:

“Now I am going to ask each of you individually the same question so listen to me carefully, I want to know if any of you have such strong religious, moral or conscientious principles in opposition to the death penalty that you would be unwilling to vote to return an advisory sentence recommending the death sentence even though the facts presented to you should be such as under the law would require that recommendation? Do you understand my question?”

The court then proceeded to question the members of the venire individually, but did so while the entire venire was present in the courtroom. Thus, throughout the individual questioning, all the veniremen could hear the questions and answers. In fact, the prosecution frequently incorporated prior questioning of other veniremen by reference, each time with the assurance from the individual being questioned that he or she had heard and understood the previous questions. See Tr. 89-90, 112, 141-142; see also id., at 160.

The court repeatedly stated the correct standard when questioning individual members of the venire.² Murphy was present and heard the court ask the proper Witherspoon question over and over again.³ After many instances of such questioning, Murphy was seated in the jury box. The court first asked Murphy his occupation, and learned that he was retired, but had spent the eight years before retirement working in the administration office of St. Pios Seminary. As previously noted, the court then asked: “Do you have any moral or religious, conscientious moral or religious principles in opposition to the death penalty so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts?” After Murphy responded “Yes, I have” he was excused.

The precise wording of the question asked of Murphy, and the answer he gave, do not by themselves compel the conclusion that he could not under any circumstance recommend the death penalty. But Witt recognized that “determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.” 469 U. S., at 424. The trial court, “aided as it undoubtedly was by its assessment of [the potential juror’s] demeanor,” id., at 434, was under the obligation to determine whether Murphy’s views would “ ‘prevent or substantially impair the performance of his duties as a juror,’ ” id., at 424. In making this determination, the trial court could take account of the fact that Murphy was present throughout an entire series of questions that made the purpose and meaning of the Witt inquiry absolutely clear. No specific objection was made to the excusal of Murphy by defense counsel. Nor did the court perceive, as it had previously, any need to question further. Viewing the record of voir dire in its entirety, we agree with the reasoning of the Court of Appeals that the trial court’s decision to exclude this juror was proper. 767 F. 2d, at 754.

HH <

Petitioner next contends that the prosecution’s closing argument at the guilt-innocence stage of the trial rendered his conviction fundamentally unfair and deprived the sentencing determination of the reliability that the Eighth Amendment requires.

It is helpful as an initial matter to place these remarks in context. Closing argument came at the end of several days of trial. Because of a state procedural rule⁴ petitioner’s counsel had the opportunity to present the initial summation as well as a rebuttal to the prosecutors’ closing arguments. The prosecutors’ comments must be evaluated in light of the defense argument that preceded it, which blamed the Polk County Sheriff’s Office for a lack of evidence,⁵ alluded to the death penalty,⁶ characterized the perpetrator of the crimes as an “animal,”⁷ and contained counsel’s personal opinion of the strength of the State’s evidence.⁸

The prosecutors then made their closing argument. That argument deserves the condemnation it has received from every court to review it, although no court has held that the argument rendered the trial unfair. Several comments attempted to place some of the blame for the crime on the Division of Corrections, because Darden was on weekend furlough from a prison sentence when the crime occurred.⁹ Some comments implied that the death penalty would be the only guarantee against a future similar act.¹⁰ Others incorporated the defense’s use of the word “animal.”¹¹ Prosecutor McDaniel made several offensive comments reflecting an emotional reaction to the case.¹² These comments undoubtedly were improper. But as both the District Court and the original panel of the Court of Appeals (whose opinion on this issue still stands) recognized, it “is not enough that the prosecutors’ remarks were undesirable or even universally condemned.” Darden v. Wainwright, 699 F. 2d, at 1036. The relevant question is whether the prosecutors’ comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristo-foro, 416 U. S. 637 (1974). Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is “the narrow one of due process, and not the broad exercise of supervisory power.” Id., at 642.

Under this standard of review, we agree with the reasoning of every court to consider these comments that they did not deprive petitioner of a fair trial.¹³ The prosecutors’ argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel, or the right to remain silent. See Darden v. Wainwright, 513 F. Supp., at 958. Much of the objectionable content was invited by or was responsive to the opening summation of the defense. As we explained in United States v. Young, 470 U. S. 1 (1985), the idea of “invited response” is used not to excuse improper comments, but to determine their effect on the trial as a whole. Id., at 13. The trial court instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence. The weight of the evidence against petitioner was heavy; the “overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges,” 329 So. 2d, at 291, reduced the likelihood that the jury’s decision was influenced by argument. Finally, defense counsel made the tactical decision not to present any witness other than petitioner. This decision not only permitted them to give their summation prior to the prosecution’s closing argument, but also gave them the opportunity to make a final rebuttal argument. Defense counsel were able to use the opportunity for rebuttal very effectively, turning much of the prosecutors’ closing argument against them by placing many of the prosecutors’ comments and actions in a light that was more likely to engender strong disapproval than result in inflamed passions against petitioner.¹⁴ For these reasons, we agree with the District Court below that “Darden’s trial was not perfect — few are— but neither was it fundamentally unfair.” 513 F. Supp., at 958.¹⁵

V

Petitioner contends that he was denied effective assistance of counsel at the sentencing phase of trial. That claim must be evaluated against the two-part test announced in Strickland v. Washington, 466 U. S. 668 (1984). First, petitioner must show that “counsel’s representation fell below an objective standard of reasonableness.” Id., at 688. Second, petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694. Petitioner argues that his trial counsel did not delve sufficiently into his background, and as a result were unprepared to present mitigating evidence at the sentencing hearing.

As an initial matter, petitioner contends that trial counsel devoted only the time between the close of the guilt phase of trial and the start of the penalty phase — approximately one-half hour — to preparing the case in mitigation. That argument is without merit. Defense counsel engaged in extensive preparation prior to trial, in a manner that included preparation for sentencing. Mr. Jack Johnson, head of the Public Defender’s office at the time, stated to the habeas court that “we had expended hundreds of hours on [petitioner’s] behalf trying to represent him,” Tr. of Habeas Corpus Proceedings 219, and that his office “worked very hard on the case.” Id., at 237. Mr. Goodwill, an experienced criminal trial lawyer, testified that he “spent more time on this case than I spent on . . . any capital case I have been involved in, probably more time than any case I’ve ever been involved in.” Supp. App. 30. That included time investigating petitioner’s alibi, and driving petitioner around the scene of events to establish each point of his story. Counsel obtained a psychiatric report on petitioner, with an eye toward using it in mitigation during sentencing. Counsel also learned in pretrial preparation that Mrs. Turman was opposed to the death penalty, and considered the possibility of putting her on the stand at the sentencing phase. The record clearly indicates that a great deal of time and effort went into the defense of this case; a significant portion of that time was devoted to preparation for sentencing.

Petitioner also claims that his trial counsel interpreted Fla. Stat. § 921.141(6) (1985), a statutory list of mitigating factors, as an exclusive list. He contends that their failure to introduce any evidence in mitigation was the result of this interpretation of the statute, and that he was thereby deprived of effective assistance of counsel. We express no view about the reasonableness of that interpretation of Florida law, because in this case the trial court specifically informed petitioner and his counsel just prior to the sentencing phase of trial that they could “go into any other factors that might really be pertinent to full consideration of your case and the analysis of you and your family situation, your causes, or anything else that might be pertinent to what is the appropriate sentence.” Tr. 887. At that point, even if counsel previously believed the list to be exclusive, they knew they were free to offer nonstatutory mitigating evidence, and chose not to do so.

As we recognized in Strickland: “Judicial scrutiny of counsel’s performance must be highly deferential. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 466 U. S., at 689. In particular, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Ibid., quoting Michel v. Louisiana, 350 U. S. 91, 101 (1955). In this case, there are several reasons why counsel reasonably could have chosen to rely on a simple plea for mercy from petitioner himself. Any attempt to portray petitioner as a nonviolent man would have opened the door for the State to rebut with evidence of petitioner’s prior convictions. This evidence had not previously been admitted in evidence, and trial counsel reasonably could have viewed it as particularly damaging. The head of the Public Defenders Office testified at the habeas corpus hearing that petitioner “had been in and out of jails and prisons for most of his adult life . . . .” Tr. of Habeas Corpus Proceedings 209. Petitioner had, for example, previously been convicted of assault with intent to commit rape. Darden v. State, 218 So. 2d 485 (Fla. App. 1969). In addition, if defense counsel had attempted to offer testimony that petitioner was incapable of committing the crimes at issue here, the State could have responded with a psychiatric report that indicated that petitioner “very well could have committed the crime; that he was, as I recall his [the psychiatrist’s] term, sociopathic type personality; that he would act entirely on impulse with no premeditation from the standpoint of planning. But that when a situation arose, the decision would be made simultaneously to commit the act.” Supp. App. 76 (testimony of Mr. Goodwill). For that reason, after consultation with petitioner, defense counsel rejected use of the psychiatric testimony. Tr. 886. Similarly, if defense counsel had attempted to put on evidence that petitioner was a family man, they would have been faced with his admission at trial that, although still married, he was spending the weekend furlough with a girlfriend. In sum, petitioner has not “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” 466 U. S., at 689, quoting Michel v. Louisiana, supra, at 101. Petitioner has failed to satisfy the first part of the Strickland test, that his trial counsels’ performance fell below an objective standard of reasonableness. We agree with both the District Court and the Court of Appeals that petitioner was not deprived of the effective assistance of counsel. 699 F. 2d, at 1037.

VI

The judgment of the Court of Appeals is affirmed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

1 There are some minor discrepancies in the eyewitness identification. Mrs. Turman first described her assailant immediately after the murder while her husband was being taken to the emergency room. She told the investigating officer that the attacker was a heavy-set man. Tr. 237. When asked if he was “neat in his appearance, clean-looking, clean-shaven,” she responded “[a]s far as I can remember, yes, sir.” Ibid. She also stated to the officer that she thought that the attacker was about her height, 5' 6" tall, and that he was wearing a pullover shirt with a stripe around the neck. Id., at 227. The first time she saw petitioner after the attack was when she identified him at the preliminary hearing. She had not read any newspaper accounts of the crime, nor had she seen any picture of petitioner. When she was asked if petitioner was the man who had committed the crimes, she said yes. She also repeatedly identified him at trial.

Phillip Arnold first identified petitioner in a photo lineup while in the hospital. He could not speak at the time, and in response to the written question whether petitioner had a mustache, Phillip wrote back “I don’t think so.” Id., at 476. Phillip also testified at trial that the attacker was a heavy-set man wearing a dull, light color knit shirt with a ring around the neck. Id., at 443. He testified that the man was almost his height, about 6' 2" tall.

A motorist who stopped at the scene of the accident testified that petitioner was wearing a white or off-grey button-down shirt and that he had a slight mustache. Id., at 313, 318-320. In fact, the witness stated that he “didn’t know it was that [the mustache] or the raindrops on him or not. I couldn’t really tell that much to it, it was real thin, that’s all.” Id., at 318-319. Petitioner is about 5' 10" tall, and at the time of trial testified that he weighed about 175 pounds.

2 Prior to voir dire defense counsel objected to any questioning by the prosecution regarding a potential juror’s feelings about the death penalty. The judge denied the motion, stating:

“It is my ruling if a prospective juror states on his voir dire examination that because of his moral, religious or conscientious principles and belief he would be unwilling to recommend a death penalty, even though the facts and circumstances meet the requirements of law, then he in effect has said he would be unwilling to follow the law . . . .” App. 6.

Although the judge correctly stated the general standard for dismissal,, he assured defense counsel that they were free to make- an objection to any particular Witherspoon question that was otherwise objectionable or that had “gone too far.” Id., at 7.

3 For example, the court asked Mrs. Macy: “[D]o you hold such conscientious moral or religious principles in opposition to the death penalty that you would be unwilling under any circumstances to recommend the death sentence?” Tr. 44. To Mr. Varney, who responded affirmatively to the above question, the court asked further: “[I]n the event that the evidence should be such that under the law that should be the legal recommendation you would be unwilling to return such a recommendation because of your conscientious beliefs?” Ibid. When three new veniremen replaced others who had been excused, the court asked: “Do either of the three of you hold such strong religious, moral or conscientious principles in opposition to the imposition of the death penalty that you would be unwilling to vote to recommend the death penalty regardless of what the evidence was?” Id., at 88. Ata similar point later on, the court explained to replacements from the venire that “I have asked the others and I will ask each of the four of you whether you have such strong religious, conscientious or moral principles against the imposition of the death penalty that you would be unwilling to vote to return a recommended sentence of the death penalty regardless of what the evidence or the facts might be?” Id., at 109. When one of the four expressed reservations, the court once again followed up with further questioning, demonstrating its practice of assuring itself, if there was any doubt, of the potential juror’s true position. See also id., at 107. During the voir dire examination prior to Murphy, four potential jurors were excused on Witherspoon grounds.

4 Rule 3.250 of the Florida Rules of Criminal Procedure (1973) provided that “a defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.”

5 “The Judge is going to tell you to consider the evidence or the lack of evidence. We have a lack of evidence, almost criminally negligent on the part of the Polk County Sheriff’s Office in this case. You could go on and on about it.” Tr. 728.

6 “They took a coincidence and magnified that into a capital case. And they are asking you to kill a man on coincidence.” Id., at 730.

7 “The first witness that you saw was Mrs. Turman, who was a pathetic figure; who worked and struggled all of her life to build what little she had, the little furniture store; and a woman who was robbed, sexually assaulted, and then had her husband slaughtered before her eyes, by what would have to be a vicious animal.” Id., at 717. “And this murderer ran after him, aimed again, and this poor kid with half his brains blown away. . . . It’s the work of an animal, there’s no doubt about it.” Id., at 731-732.

8 “So they come on up here and ask Citrus County people to kill the man. You will be instructed on lesser included offenses. . . . The question is, do they have enough evidence to kill that man, enough evidence? And I honestly do not think they do.” Id., at 736-737.

9 “As far as I am concerned, there should be another Defendant in this courtroom, one more, and that is the division of corrections, the prisons. . . . Can we expect him to stay in a prison when they go there? Can’t we expect them to stay locked up once they go there? Do we know that they’re going to be out on the public with guns, drinking?” App. 15-16. “Yes, there is another Defendant, but I regret that I know of no charges to place upon him, except the public condemnation of them, condemn them.” Id,., at 16.

10 “I will ask you to advise the Court to give him death. That’s the only way that I know that he is not going to get out on the public. It’s the only way I know. It’s the only way I can be sure of it. It’s the only way that anybody can be sure of it now, because the people that turned him loose — .” Id., at 17-18.

11 “As far as I am concerned, and as Mr. Maloney said as he identified this man, this person as an animal, this animal was on the public for one reason.” Id., at 15.

12 “He shouldn’t be out of his cell unless he has a leash on him and a prison guard at the other end of that leash.” Id., at 16. “I wish [Mr. Turman] had had a shotgun in his hand when he walked in the back door and blown his [Darden’s] face off. I wish that I could see him sitting here with no face, blown away by a shotgun.” Id., at 20. “I wish someone had walked in the back door and blown his head off at that point.” Ibid. “He fired in the boy’s back, number five, saving one. Didn’t get a chance to use it. I wish he had used it on himself. ” Id., at 28. “I wish he had been killed in the accident, but he wasn’t. Again, we are unlucky that time.” Id., at 29. “[D]on’t forget what he has done according to those witnesses, to make every attempt to change his appearance from September the 8th, 1973. The hair, the goatee, even the moustache and the weight. The only thing he hasn’t done that I know of is cut his throat.” Id., at 31. After this, the last in a series of such comments, defense counsel objected for the first time.

13 Justice Blackmun’s dissenting opinion argues that because of pros-ecutorial misconduct petitioner did not receive a fair trial. The dissent states that the Court is “willing to tolerate not only imperfection but a level of fairness and reliability so low it should make conscientious prosecutors cringe.” Post, at 189. We agree that the argument was, and deserved to be, condemned. Swpra, at 179. Conscientious prosecutors will recognize, however, that every court that criticized the argument went on to hold that the fairness of petitioner’s trial was not affected by the prosecutors’ argument.

On direct appeal in 1976, the Florida Supreme Court so held after a careful review of the “totality of the record.” Darden v. State, 329 So. 2d 287, 290-291. On the first federal habeas petition, the District Court considered the prosecution’s closing argument at length and denied the petition. It concluded after a “thorough review of the record” that it was “convinced that no relief is warranted.” Darden v. Wainwright, 513 F. Supp. 947, 958 (MD Fla. 1981). “Darden’s trial was not perfect — few are — but neither was it fundamentally unfair.” Ibid. The original panel of the Court of Appeals affirmed the District Court’s holding with respect to the prosecutors’ argument. It stated that it had “considered the prosecutors’ remarks and evaluated them in light of Darden’s entire trial,” and that it “agree[d] with the district court’s conclusion that the prosecutors’ comments did not deny Darden a fundamentally fair trial.” 699 F. 2d 1031, 1036-1037 (1983). When the Court of Appeals reheard the case en banc for the second time it expressly agreed with the panel decision on the pros-ecutorial misconduct issue. 725 F. 2d 1526, 1532 (1984).

The Court of Appeals, however, reversed the District Court on the Witherspoon issue. This Court granted the State’s petition for certiorari only on that issue, and vacated and remanded the ease for reconsideration in light of Wainwright v. Witt, 469 U. S. 412 (1985). The Court of Appeals denied all relief, 767 F. 2d 752 (1985). During this protracted litigation not one court has agreed with petitioner’s claim with respect to improper pros-ecutorial argument.

14 “Mr. McDaniel made an impassioned plea . . . how many times did he repeat [it]? I wish you had been shot, I wish they had blown his face away. My God, I get the impression he would like to be the man that stands there and pulls the switch on him.” Tr. 791; see also id., at 794.

One of Darden’s counsel testified at the habeas corpus hearing that he made the tactical decision not to object to the improper comments. Based on his long experience with prosecutor McDaniel, he knew McDaniel would “get much more vehement in his remarks if you allowed him to go on.” By not immediately objecting, he hoped to encourage the prosecution to commit reversible error. Supp. App. 46-47.

15 Justice Blackmun’s dissenting opinion mistakenly argues that the Court today finds, in essence, that any error was harmless, and then criticizes the Court for not applying the harmless-error standard. Post, at 196-197. We do not decide the claim of prosecutorial misconduct on the ground that it was harmless error. In our view of the case, that issue is not presented. Rather, we agree with the holding of every court that has addressed the issue, that the prosecutorial argument, in the context of the facts and circumstances of this case, did not render petitioner’s trial unfair— i. e., that it was not constitutional error.

Petitioner also maintains that the comments violated the requirement of reliability in the sentencing process articulated in Caldwell v. Mississippi, 472 U. S. 320 (1985). The principles of Caldwell are not applicable to this case. Caldwell involved comments by a prosecutor during the sentencing phase of trial to the effect that the jury’s decision as to life or death was not final, that it would automatically be reviewed by the State Supreme Court, and that the jury should not be made to feel that the entire burden of the defendant’s life was on them. This Court held that such comments “presen[t] an intolerable danger that the jury will in fact choose to minimize the importance of its role,” a view that would be fundamentally incompatible with the Eighth Amendment requirement that the jury make an individualized decision that death is the appropriate punishment in a specific case. Id., at 333.

There are several factual reasons for distinguishing Caldwell from the present case. The comments in Caldwell were made at the sentencing phase of trial and were approved by the trial judge. In this case, the comments were made at the guilt-innocence stage of trial, greatly reducing the chance that they had any effect at all on sentencing. The trial judge did not approve of the comments, and several times instructed the jurors that the arguments were not evidence and that their decision was to be based only on the evidence. But petitioner’s reliance on Caldwell is even more fundamentally mistaken than these factual differences indicate. Caldwell is relevant only to certain types of comment — those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision. In this ease, none of the comments could have had the effect of misleading the jury into thinking that it had a reduced role in the sentencing process. If anything, the prosecutors’ comments would have had the tendency to increase the jury’s perception of its role. We therefore find petitioner’s Eighth Amendment argument unconvincing.