VANCE and ANDERSON, Circuit Judges:

On the evening of June 5, 1976, Grady Peek, Jr. and James Jones were brutally beaten to death. Petitioner David Peek was arrested in connection with the murders early the following morning. After being advised of his rights, petitioner confessed to both beatings, but claimed he did so in self-defense. Peek later recanted this statement and denied any involvement in the murders. He was eventually tried on two counts of capital murder and one of kidnapping. The state's primary witness at trial was Pearlie Mae Lawrence, Grady Peek's girlfriend.

Pearlie Mae Lawrence testified that on the night of the murder, she, Grady Peek, and David Peek went to the White Plains Club in Siloam, Georgia. They returned from the club to the home of Barbara Peek, petitioner's sister. Ms. Lawrence testified that after petitioner's efforts to rape her were thwarted by Grady Peek, petitioner attacked Grady with a stick and beat him to death. He then put the body and the stick in the car, and forced Ms. Lawrence in the car with him. After driving a short distance, petitioner ran the car into a ditch. He then raped Ms. Lawrence.

James Jones, who was living in Barbara Peek's house, came outside to investigate. After petitioner raped Ms. Lawrence he got out of the car and saw Jones behind it. He grabbed the stick with which he had beaten Grady Peek and beat Jones to death. He put Jones' body in the back seat of Jones' own car and Grady's body in the trunk. He locked Ms. Lawrence in the trunk with Grady's body. Petitioner returned to Barbara Peek's house and told Barbara that someone had hurt James Jones. After the police were summoned and Ms. Lawrence gave her statement, petitioner was taken into custody.

On July 28, 1976, Peek was tried on two counts of murder and one count of kidnapping in a superior court in Greene County, Georgia. A jury found him guilty on all three counts and he was sentenced to death. His convictions and sentences were affirmed as to the murders, but the Georgia Supreme Court reversed his death sentence on the kidnapping conviction. Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1972). Following two days of hearings, his convictions and sentences were also upheld in state habeas proceedings. The district court for the Middle District of Georgia denied his petition for habeas corpus relief under 28 U.S.C. § 2254. A panel of this court reversed the district court's denial of the writ and remanded with instructions that the writ be granted. Peek v. Zant, 746 F.2d 672 (11th Cir. 1984).

We granted the petition for rehearing en banc to consider two issues. First, in a section of this opinion written by Judge Vance we consider whether constitutional error occurred when the Greene County trial court replaced a regular juror, Chester Greeson, with an alternate juror, Ben Weinstein, without personally questioning Greeson to ascertain whether he was too ill to continue deliberations and without instructing the jury to begin its deliberations anew with the substitute juror. In a second section written by Judge Anderson we consider whether the trial court's instructions regarding mitigating circumstances were constitutionally deficient.

SECTION I. REPLACEMENT OF JUROR

VANCE, Circuit Judge:

(1) Replacing Juror Greeson with Alternate Juror Weinstein

Peek's trial began at 9:00 a.m. on July 28, 1976. At 10:27 p.m. the jury retired to consider its verdict. At midnight the state trial judge sent for the jury and inquired whether a verdict had been reached. The jury foreman responded "no sir." The court then asked the jurors if they wanted to retire for the night or continue their deliberations. He informed them that hotel accommodations had been arranged and that the decision to continue or break for the evening was entirely up to them. The jury foreman asked the court to allow them a few more minutes and the court agreed.

Approximately thirty minutes later, the jury foreman returned to the courtroom and the following exchange took place on the record:

THE COURT: All right. Let the record show that the Foreman has come out and indicated that Mr. Chester Geesling [sic], he feels, is definitely extremely nervous and almost at the breaking point and that they have been trying to do what they could to placate him and keep something from happening and that Mr. Geesling [sic] has requested that he would like to be excused and Mr. Briley, I believe, you said that you will stipulate —

MR. BRILEY: The State will stipulate that he may be excused.

MR. ASHLEY: Under the circumstances, the Defense will stipulate that he may be excused.

THE COURT: All right, sir.

MR. BRILEY: Let's substitute the first alternate, is that —

THE COURT: Well, I think we ought to have the Foreman to advise the, after Mr. Geesling [sic] leaves, to advise the panel that we are not going to just, you know, start excusing at random, because, but I think they are all aware as I understand it from what you say of the situation —

MR. FOREMAN: Everybody else is just fine, but I mean, it is just that that fellow.

THE COURT: Yes, sir. Okay. Well, we'll then, let him go. Let him come on out then.

MR. FOREMAN: You just want me to tell him he can leave?

THE COURT: Yes, sir.

MR. FOREMAN: Because he doesn't want to make a big to do about it.

THE COURT: Right. Well, I haven't got a backdoor [sic] for him to go out. Mr. Weinstein?

MR. WEINSTEIN: Yes, sir.

MR. FOREMAN: Can I just tell him the gist of what we've been talking about?

THE COURT: All right. We have just excused a Juror by agreement of both Counsel and by the Court on word that has come out of the Jury Room here, so, we need to ask you to go in and take his place, please, sir.

At this point juror Chester Greeson was replaced on the jury by first alternate Ben Weinstein. Subsequent fact-finding revealed that at the time of his dismissal, Greeson was the lone holdout as to guilt. This was unknown to the court and both attorneys at the time. Weinstein entered the jury room and the jury returned with guilty verdicts as to all three counts a short time later. The jury then heard arguments on the sentencing phase and after further deliberation reached the decision that Peek should be put to death.

Peek argues that the state trial court committed constitutional error by failing to observe and question Greeson personally prior to dismissing him, and by failing to instruct the jury that they should begin their deliberations anew following the substitution of first alternate Weinstein for juror Greeson. Peek contends that the consequence of these errors was a denial of his right to due process. We conclude that petitioner has failed to demonstrate that the circumstances surrounding juror Greeson's dismissal and first alternate Weinstein's substitution were fundamentally unfair and therefore affirm the district court's denial of the writ as to this claim.

We begin our analysis by reviewing the findings of fact made by the state habeas court. Section 2254 requires that these findings be accorded a presumption of correctness if they are fairly supported by the record. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). While the state court's habeas findings are not a model of clarity, the following principal findings are present:

(1) Greeson harbored a reasonable doubt as to Peek's guilt at the time he requested to be relieved of his duties;

(2) Greeson's emotional and physical state, however, impaired his voting and participating in deliberations;

(3) The foreman informed Judge Duke that the juror was ill;

(4) Judge Duke formed the correct impression that juror Greeson was ill and unable to continue; and

(5) Both the prosecution and defense agreed to the substitution of first alternate Weinstein for juror Greeson.

Our review indicates that these findings of fact are fairly supported by the record, and we therefore accord them the presumption of correctness required by 28 U.S.C. § 2254.

Turning now to the legal consequences of Greeson's dismissal, we begin by recognizing as we have previously that the erroneous replacement of a juror may under certain circumstances deprive a defendant of his valued right to have his trial completed by a particular tribunal, his sixth amendment right to a fair, impartial and representative jury, and his due process rights grounded in the entitlement to procedures mandated by state law. See Green v. Zant, 715 F.2d 551, 555-56 (11th Cir. 1983) ( Green I), cert. denied, ___ U.S. ___, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984).

Juror Greeson was excused and replaced pursuant to Ga. Code Ann. § 15-12-172 which provides:

If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.

Peek contends that Greeson's excusal and the substitution of first alternate Weinstein was in violation of the statute because Greeson was not ill at the time he was excused. In light of the findings by the state habeas court and the supporting evidence in the record, we reject that contention. As stated above, the state habeas court concluded that Greeson's emotional and physical state impaired his voting and participating in deliberations and rendered him unable to continue. The state habeas record is replete with testimony which supports this finding. Greeson's own testimony at the state habeas proceedings was as follows:

Well, I got sick — I got so upset, I couldn't stand it anymore and it looked like I couldn't make a verdict

. . . .

. . . .

Well, it seemed like that I couldn't make the decision and I just kept getting more and more upset. . . . And I just got so upset, I — it seemed like — I had to disqualify myself.

. . . .

. . . I got so physically — well, mental upset that I knew I couldn't make a decision.

Greeson also responded affirmatively to the following questions:

And so your physical illness resulted from being mentally upset because of uncertainty about the case, is that right?

. . . .

Did you say that during the deliberations on this case, you just got so physically ill that you did not feel you could continue?

. . . .

And because of your physical condition, you discussed with the Jury Foreman the matter of your being removed from the Jury or asking the judge to allow you to be removed?

. . . .

Mr. Greeson, at the time that you asked to be removed from the Jury, did you feel that you would have difficulty making a decision? Did your physical condition really bother you?

In addition, jury foreman Smith testified as follows:

. . . I thought he [Greeson] was sick and ought to be excused and he agreed and everybody else in there agreed, it would be all right if he left.

. . . .

Yeah, I asked him, you know, how he was feeling. I can remember doing that. I mean, the man kept going to the bathroom and he was turning a dark shade of red and sweat — I mean, his shirt was saturated with sweat. I mean, the man looked sick to me. And I imagine anybody that saw him at that time, you know.

. . . .

I mean, the man just gave me the opinion that he was sick.

. . . .

He indicated before I came out to the Judge that he was sick and that if there was anyway [sic], he would like to go home and that he was just ill.

Because we find that the record supports a finding that Greeson was too ill to continue in the deliberations at the time he was dismissed, we find that no constitutional error resulted from the state trial judge's failure to question juror Greeson personally prior to dismissing him. The right to a fair and impartial jury entitles a defendant in a criminal case to be tried by the jury originally selected to determine his guilt or innocence. This right, however, must in some instances be subordinated to the public's interest in fair trials designed to end in jury verdicts. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). In Green I, we held that it would be prejudicial and constitutionally deficient for a trial judge to excuse a juror during deliberations "`for want of any factual support, or for a legally irrelevant reason.'" Green v. Zant, 715 F.2d at 555 (quoting United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir. 1978)). In Green I, the state trial judge, like the state trial judge here, had excused a juror without direct interrogation after the jury foreman reported that the juror was unable to continue in the deliberations. Green v. Zant, 715 F.2d at 553. In Green I, we remanded the case to the district court to determine factually whether the excused juror had actually been so ill that she could not continue. We expressly noted that if the evidence on remand revealed that the excused juror was too incapacitated to continue at the time of her excusal and that a hearing would have revealed that fact to the trial court, then Green could not complain that he was prejudiced by the court's failure to hold a hearing. Id. at 557.

On remand, the district court found that the juror had in fact been too incapacitated to continue at the time of her excusal, and we therefore found no constitutional error in the state trial court's failure to interrogate the witness personally prior to excusing her. Green v. Zant, 738 F.2d 1529 (11th Cir.) ( Green II), cert. denied, ___ U.S. ___, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984). Because the situation here is almost identical, we likewise find no constitutional error in the state trial court's failure to question and observe Greeson personally prior to his dismissal. Juror Greeson was unquestionably too ill to debate or vote at the time of his excusal. We conclude that the trial judge's decision to excuse Greeson from the jury has a sound basis and no prejudice resulted to the petitioner from the trial judge's failure to question Greeson personally before dismissing him. See Green II, 738 F.2d at 1533.

(2) Supplementary Jury Instructions to Begin Deliberations Anew

Peek's contention that constitutional error occurred when the trial court failed to instruct the jury to begin its deliberations anew after the substitution of juror Weinstein is also without merit. The only circuit court that has addressed this issue concluded that substituting an alternate juror without instructing the jury to commence its deliberations anew is not constitutional error. See United States v. Evans, 635 F.2d 1124, 1127-28 (4th Cir. 1980), cert. denied, 452 U.S. 943, 101 S.Ct. 3090, 69 L.Ed.2d 958 (1981). In United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B Dec. 28, 1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982), we noted the rationale of Evans with approval:

In Evans the trial court replaced a regular juror with an alternate after the jury had begun deliberations; however, the defendant expressed himself unequivocally in favor of proceeding with the newly constituted jury. The newly constituted jury was not specifically instructed to begin its deliberations anew, but rather was told only to continue its deliberations. Nevertheless, the appellate court concluded that the "speculative assertion of prejudice . . ., to which no objection was raised, was insufficient to justify reversal," stating that "[n]othing precluded the jury from starting from the very beginning all over again." 635 F.2d at 1128 (emphasis added).

644 F.2d at 992 n. 16. The Phillips court noted that supplementary instructions to deliberate anew can serve to obviate the danger of undue prejudice when a juror is substituted, but the court did not hold that such instructions were mandated as a matter of constitutional right.

As in Evans, the defense counsel here did not object to the lack of supplementary instructions to begin anew when juror Weinstein was substituted, and the jury was not prevented from starting its deliberations from the beginning on its own. The state habeas proceeding revealed that juror Weinstein had attended the entire trial, had heard the charge to the original jury, and had reviewed the case with the jury after he joined them. Because the prejudice alleged by Peek is speculative at best, we conclude that Peek suffered no deprivation of his constitutional rights when the trial court substituted juror Weinstein without instructing the jury to begin its deliberations anew.

SECTION II. JURY INSTRUCTIONS AT SENTENCING PHASE CONCERNING MITIGATING CIRCUMSTANCES

ANDERSON, Circuit Judge:

After the jury convicted Peek of kidnapping with bodily injury and two counts of murder, the jury began its sentencing deliberations. Under Georgia law, in order to impose the death penalty for the capital crimes with which Peek was charged, the sentencing jury must find the existence beyond a reasonable doubt of at least one statutorily defined aggravating circumstance. Ga. Code Ann. § 17-10-31. If no such circumstance is found, the jury may not impose death, and must instead give a sentence of life imprisonment. Id. If an aggravating circumstance is found, the jury then may impose death, but it is nevertheless free to grant mercy in any case and sentence the defendant to life imprisonment. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 46 L.Ed.2d 859 (1976); Ga. Code Ann. §§ 17-10-31, 17-10-2(c). In making its determination, the jury is free to consider any mitigating evidence, see Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666, cert. denied sub nom., Franklin v. Georgia, 448 U.S. 913, 101 S.Ct. 32, 65 L.Ed.2d 1176 (1980), and to interpret any evidence as mitigating in its decision to grant mercy. Spivey v. State, 241 Ga. 477, 246 S.E.2d 288, cert. denied sub nom., Spivey v. Georgia, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 699 (1978). In this case, the jury found aggravating circumstances and sentenced Peek to death.

Peek argues that the sentencing jury was not adequately instructed on the nature and function of mitigating circumstances and that, therefore, under binding precedent in this circuit, see, e.g., Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983), the death sentences must be vacated. We recognize that the relevant sentencing instructions given in the instant case are virtually indistinguishable from those given in Westbrook. The en banc posture of this case, however, permits us to reevaluate Westbrook. We believe that the trial court's instructions cannot be evaluated in the abstract, but rather must be considered in context. See Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). We do not disagree with the underlying premise of Westbrook that a jury, when making the awesome decision of whether or not to impose the death penalty, must understand the meaning and function of mitigating evidence. However, we believe that a common sense evaluation of the proceedings in this case indicates that no reasonable juror could have failed to understand the challenged instructions and the role of mitigation.

In its sentencing instructions, the trial judge gave the following instructions concerning mitigating circumstances:

You are authorized to consider the facts and circumstances, if any, in extenuation, mitigation or aggravation of punishment which may have been submitted to you. And of course, no evidence was submitted, but you do have the arguments of the District Attorney for the State and of Mr. Ashley as Counsel of record for the Defendant.

However, it is not essential to your decision that you find extenuating or mitigating facts and circumstances on the one hand, or facts and circumstances in aggravation on the other. Please do not confuse this with the charge which I shall give you a little bit later insofar as statutory aggravating circumstances maybe [sic] concerned.

. . . . .

[quoting from the statute:] "Where a Jury returns a verdict or finding of guilty, the Court shall resume the trial and conduct a Pre-Sentence Hearing before the Jury at which time, the only issue shall be the determination of punishment to be imposed." . . .

Now, . . . as to capital felonies . . . [quoting from the statute:] "In such hearings subject to the laws of evidence, the Jury shall hear additional evidence in extenuation, mitigation and aggravation of punishment including the record of any prior criminal convictions and pleas of guilty or pleas of Nolo Contendere of the Defendant or the absence of any such prior criminal convictions and pleas. Provided; however, that only such evidence in aggravation as the State has made known to the Defendant prior to his trial shall be admissible. . . ."

. . . [Y]ou will be making only a finding as to certain statutory aggravating circumstances if you find such to exist. And those findings as related thereto, will determine the sentence to be given in this case, that, plus a recommendation. And I will go into that in just a moment. Pertinent portions of Code Section 27-2534.1, entitled "Mitigating and aggravating circumstances, death penalty," reads as follows: And I will tell you that some of this, of course, does not apply, but I have to read it in order that it will make sense. Subsection "(A) The Death Penalty may be imposed for the offenses of aircraft hijacking or treason in any case." Now, of course, we don't have either of those offenses involved here. "(B) In all cases of other offenses for which the Death Penalty may be authorized the Judge shall consider, or he shall include in his instructions to the Jury. For it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence."

Trial Transcript at 235-37.

As we have indicated, the above instructions are virtually indistinguishable from those given in Westbrook v. Zant, 704 F.2d 1487; see also Tyler v. Kemp, 755 F.2d 741, 746-47 (11th Cir. 1985); Morgan v. Zant, 743 F.2d 775, 777-79 (11th Cir. 1984); Finney v. Zant, 709 F.2d 643 (11th Cir. 1983). The Westbrook decision has its origins in Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978). In Chenault, the petitioner challenged the trial judge's instruction about mitigating circumstances. Id. at 447. The court did not resolve the issue because the petitioner had not exhausted his state remedies. Id. at 448. The court did, however, hold that the petitioner had stated a claim which implicated a constitutional right. Id. at 447-48. The Chenault court grounded its decision on the then recent pronouncements of the Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), as follows:

In view of the two most recent Supreme Court death penalty decisions — Lockett v. Ohio . . . and Bell v. Ohio . . . — we conclude that the petitioner's objection does implicate a substantial denial of a federal constitutional right. In Lockett the plurality opinion of the Chief Justice, in which Justices Stewart, Powell and Stevens joined, states that the Eighth and Fourteenth Amendments require that the sentencing judge or jury must be allowed to consider, as a mitigating factor, "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death" . . . . The plurality would apply this requirement in all cases except perhaps where a mandatory death sentence is needed to deter certain kinds of homicide. . . . Justice Marshall, although still adhering to his view that capital punishment is always unconstitutional, appears to have suggested that the sentencer must be allowed to consider "the unique individuality of every criminal defendant." . . .

It now seems, therefore, that a death sentence imposed by a sentencer barred from considering mitigating circumstances will be vacated by a six-member majority of the Supreme Court. . . . This constitutional requirement to allow consideration of mitigating circumstances would have no importance, of course, if the sentencing jury is unaware of what it may consider in reaching its decision. We read Lockett and Bell, then, to mandate that the judge clearly instruct the jury about mitigating circumstances and the option to recommend against death. Thus, the petitioner's contention that the sentencing instructions given by the trial judge were not adequate on this point does implicate a substantial denial of a federal constitutional right.

Chenault, 581 F.2d at 447-48.

In Spivey v. Zant, 661 F.2d 464 (5th Cir. Unit B Nov. 16, 1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982), the former Fifth Circuit considered a situation in which the trial court's sentencing instructions did not mention, let alone define, mitigating circumstances or indicate their function in the Georgia capital sentencing scheme. Id. at 468. The instructions simply told the jurors, amidst a lengthy instruction focusing almost entirely on the function of aggravating circumstances, that "you are authorized to consider all the evidence received by you in open Court, and both phases of the trial ... [and] are authorized to consider all the facts and circumstances of the case." Id. In finding the instruction unconstitutional, the court relied upon the prior holding in Chenault that the Lockett and Bell decisions logically required the sentencing jury to understand the nature and function of mitigating evidence, and upon the fundamental constitutional requirement "that a state death sentencing procedure [must] `allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition on him of a sentence of death.'" Id. at 469 (quoting Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976)). A jury which does not understand that the evidence and argument presented to it can be considered in mitigation of punishment cannot give a capital defendant the individualized sentencing hearing which the Constitution requires. Moreover, because of the lack of any instruction on mitigating circumstances, the deficient instruction in Spivey focused almost entirely on the concept of aggravation, and may well have skewed the jury towards death and misled the jury with respect to its absolute discretion to grant mercy regardless of the existence of "aggravating" evidence. The Spivey court, however, went beyond simple reliance on the lack of any instruction concerning mitigating circumstances and stated its holding as follows:

the jury must receive clear instructions which not only do not preclude consideration of mitigating factors, Lockett, but which also "guid[e] and focu[s] the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender . . ."

Spivey, 661 F.2d at 471 (quoting Jurek v. Texas, 428 U.S. 262, 274, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929 (1976)).

The Westbrook case presented a different situation. The sentencing judge had given, as did the sentencing judge in the instant case, instructions concerning mitigating circumstances. In particular, the sentencing judge had given an instruction authorizing the jury to "`consider the facts and circumstances, if any, in extenuation, mitigation, or aggravation of punishment. . . .'" Westbrook v. Zant, 704 F.2d at 1501. However, the court held that

[t]he [sentencing] charge fails to provide clear instructions on the function of mitigating circumstances and [gives] no guidance on the relationship between mitigating and aggravating circumstances. . . .

Although the charge authorized the jury to consider circumstances in extenuation or mitigation, . . . . the court failed to explain what function such a consideration would play in sentencing deliberations. An authorization to consider mitigating circumstances is a hollow instruction when unaccompanied by an explanation informing the jury why the law allows such a consideration and what effect a finding of mitigating circumstances has on the ultimate recommendation of sentence. We cannot fit this instruction within the requirements of Spivey.

Id. at 1503.

Although the instructions given in Westbrook are virtually identical to those given to Peek's sentencing jury, the en banc posture of this case permits us to reconsider the validity of the Westbrook holding by reviewing the sentencing charge in context to ascertain whether the jury understood the meaning and function of mitigating circumstances. We must recognize at the outset that, although the Westbrook court focused on just one sentence of the trial court's charge, it is well established that a challenged instruction must be evaluated in context:

In determining the effect of this instruction on the validity of respondent's conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U.S. 104, 107, 70 L Ed 857, 46 S Ct 442 [443] (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U.S. 100, 34 L Ed 2d 335, 93 S Ct 354 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.

Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400. The ultimate question is whether there is a reasonable possibility that the jury understood the instructions in an unconstitutional manner. Francis v. Franklin, ___ U.S. ___, ___ n. 8, 105 S.Ct. 1965, 1975-76 n. 8, 85 L.Ed.2d 344 (1985). We conclude that there is no such possibility; rather, we conclude that no reasonable juror could have failed to understand the meaning and function of mitigating circumstances.

Early in its sentencing phase instructions, the trial court made the following statement:

You are authorized to consider the facts and circumstances, if any, in extenuation, mitigation or aggravation of punishment which may have been submitted to you.

Trial Transcript at 235. Of course, this instruction, standing alone, does not adequately define the meaning of "mitigation" or "extenuation," nor does it explain the role of these concepts in the jury's task, i.e., that they represent factors which point in the direction of mercy for the defendant. A reasonable juror may not understand the meaning of such legalistic terms, nor are their meanings made clear in the context of that sentence alone. The consecutive appearance of the words "mitigation, extenuation or aggravation" does not serve to distinguish the terms from one another and, therefore, fails to allocate the mitigating function to the defendant and the aggravating function to the state. See Goodwin v. Balkcom, 684 F.2d 794, 802 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983). There were in this case, however, additional instructions which served to further enlighten the jury.

Immediately after giving the above instruction, the trial judge told the jury:

However, it is not essential to your decision that you find extenuating or mitigating facts on the one hand, or facts and circumstances in aggravation on the other.

Trial Transcript at 235. Although this instruction did not allocate the mitigating and aggravating functions to the parties, it did indicate clearly, by use of the terms "on the one hand" and "on the other," that the concepts of mitigation (or extenuation) and aggravation are opposite concepts, thus indicating that the "facts and circumstances" relevant to these concepts would be presented for opposing purposes by the opposing parties.

Shortly thereafter, the judge, quoting from the Georgia statute, explained to the jury as follows:

"In such hearings subject to the laws of evidence, the Jury shall hear additional evidence in extenuation, mitigation and aggravation of punishment including the record of any prior criminal convictions and pleas of guilty or pleas of Nolo Contendere of the Defendant or the absence of any such prior criminal convictions and pleas. Provided, however, that only such evidence in aggravation as the State has made known to the Defendant prior to his trial shall be admissible."

Trial Transcript at 236. This instruction gives a very helpful, common sense example of aggravating evidence ( i.e., prior criminal convictions) and mitigating evidence ( i.e., the absence thereof). No reasonable juror could fail to understand that the defendant's prior criminal record would be presented in aggravation of punishment, and that the absence of a criminal record would be presented in mitigation. A reasonable juror would also understand, regardless of whether the terms "mitigation" or "extenuation" had been given dictionary definitions, that the lack of a criminal record would be a factor presented in favor of the defendant, i.e., in favor of mercy, and that the existence of a prior criminal record would be against the interest of the defendant. The function of such evidence is self-evident. Also, the above-quoted instruction does explicitly allocate the "aggravation" function to the state by indicating that the state was legally required to give the defendant notice of aggravating evidence before presenting such evidence in court. At this point, therefore, a reasonable jury could not have misunderstood that the role of the defense was to present evidence and/or argument in mitigation since the concepts of aggravation and mitigation had been identified as opposites.

In addition, other instructions repeatedly cautioned the jury that they were not authorized to recommend the death sentence unless they first found beyond a reasonable doubt at least one of the statutory aggravating circumstances. The trial judge also described the particular statutory aggravating circumstances urged by the state ( i.e., that the crimes were committed while the offender was engaged in the commission of another capital felony). See Trial Transcript at 237-40. The particular aggravating circumstances described were self-evidently aggravating in nature. Thus, these instructions clearly identified the state's role to adduce aggravating evidence and argument, and clearly indicated that such evidence and argument would be presented in support of the death sentence.

Because the instructions cast mitigating circumstances as being in opposition to aggravating circumstances, and because of the self-evident role of the aggravating circumstances described in the charge and because of the self-evident role of the example given earlier of aggravating and mitigating circumstances — i.e., prior criminal record or absence thereof — we are satisfied that there is no reasonable possibility that the jury failed to understand that it was the defendant's role to present mitigating evidence and argument, and that such evidence and argument would be presented in support of mercy, i.e., a life sentence.

Moreover, other circumstances of the proceedings bolster our confidence that reasonable jurors could not have misunderstood the instructions and the jury's role in evaluating mitigating evidence and argument.

Just prior to the presentation of argument by counsel in the sentencing phase, the following colloquy took place between the trial judge and counsel:

THE COURT: All right, sir. All right, Gentlemen, we come now to the Pre-Sentencing phase. Is there anything that the State would like to offer in aggravation?

MR. BRILEY: No, Your Honor.

THE COURT: Is there anything in the way of the evidence that the Defendant would like to offer in mitigation? Mitigating circumstances?

MR. ASHLEY: No, Your Honor.

THE COURT: All right. Mr. Briley, I believe you would have the first and the Defendant would have the last, for any remarks that you would like to make.

MR. BRILEY: Thank you, Your Honor.

Trial Transcript at 234 (emphasis added). The above-quoted passage represents an explicit allocation of functions to the defendant and the prosecutor, an allocation which arguably was only implicit in the court's instructions discussed above. The prosecutor was asked if the state had any aggravating evidence and defense counsel was asked if the defendant had any evidence to offer in mitigation. "Mitigation" is not defined; however, any reasonable juror, upon an explicit indication that the defendant is the party to present "mitigating evidence," could not fail to understand that such evidence is presented in favor of the defendant's position, i.e., mercy. In any event, since this colloquy occurred prior or to the jury's instructions it insured that the jury understood from the instructions that the defendant would be presenting mitigating evidence and argument and that such would be presented in favor of the defendant's position, i.e., mercy. We conclude that no reasonable juror could have understood otherwise.

As is indicated in the above-quoted colloquy, immediately after the state and defense counsel indicated that they had no evidence to present in aggravation or in mitigation, counsel made closing arguments to the sentencing jury. Given this sequence of events, there is no reasonable possibility that the jury was not aware that the state's argument would be one in aggravation, i.e., in favor of death, and that the defense counsel's argument would be one in mitigation, i.e., in favor of life.

Although Peek did not present evidence in the sentencing phase, two mitigating factors — Peek's young age and his lack of any prior criminal record — may have been considered by the jury. Peek testified at the guilt/innocence phase that he was nineteen years old. Trial Transcript at 185-86. In addition, although there was no evidence specifically presented concerning a past criminal record, or the lack thereof, the fact that Peek had no prior criminal convictions emerges from the record. No evidence of prior criminal activity was of record during the guilt/innocence phase, nor did the state present evidence of prior convictions during the sentencing phase, as surely it would have if such existed. The jurors would surely have assumed that the nineteen-year old Peek had no prior criminal record since the judge instructed them, quoting from the Georgia statute, that prior criminal convictions can be considered as aggravating evidence. Therefore, the jurors would surely have expected the prosecutor to present Peek's prior convictions if any existed. Cf. Respondent's Exhibit No. 1 at 77 (report of trial judge dated January 11, 1977: Judge checked box indicating that Peek had no prior criminal record, and wrote that Peek did not have a record "as far as the Court knows"). These factors would have played a common sense role in the jury's sentencing deliberations. It was not necessary for the judge to tell the jury that these specific factors may be considered in mitigation; their mitigating tendency was self-evident. No reasonable juror could have failed to understand that the only mitigating factors ( i.e., young age and absence of criminal record) would tend toward mercy.

Finally, at the close of the sentencing instructions, defense counsel expressly stated that he had no exceptions, an additional indication that all parties present at the proceedings perceived that the instructions did in fact convey to the jury the meaning and function of mitigating circumstances. Cf. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) ("It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court").

In light of the foregoing analysis, we are confident that no reasonable jury could have failed to understand the nature and function of mitigating circumstances, and its own role in evaluating mitigating evidence and argument. There is no reasonable possibility otherwise, and thus the trial court's jury instructions were not constitutionally deficient.

We are bolstered in our finding by the Supreme Court's recent pronouncement in Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). In Stephens, before making its determination that the defendant deserved death rather than mercy, the sentencing jury had determined that death was an option by finding beyond a reasonable doubt that three statutory aggravating factors existed. Later, the Georgia Supreme Court declared one of the aggravating factors unconstitutionally vague. The petitioner argued, among other things, that the erroneous instruction concerning the now constitutionally defective aggravating circumstance required that his death sentence be vacated. Although there were other aggravating factors found which would have supported the death sentence, the petitioner argued that the instruction (and the jury's concomitant finding of the unconstitutional aggravating factor), may have been accorded weight in the sentencing determination. Id. at 888, 103 S.Ct. at 2748-49, 77 L.Ed.2d at 257. The Supreme Court rejected this argument, holding that "any possible impact [of the improper instruction] cannot fairly be regarded as a constitutional defect in the sentencing process." Id. at 888, 103 S.Ct. at 2748-49, 77 L.Ed.2d at 257 (footnote omitted).

The Court stated that "the absence of legislative or court-imposed standards to govern the jury in weighing the significance . . . of . . . aggravating circumstances does not render the Georgia sentencing statute invalid as applied in this case." Id. at 879-81, 103 S.Ct. at 2744-45, 77 L.Ed.2d at 251-52. In addition, the Court noted that

the Constitution does not require a State to adopt specific standards for instructing the jury in its consideration of aggravating and mitigating circumstances, and Georgia has not adopted such a system.

Id. at 890, 103 S.Ct. at 2750, 77 L.Ed.2d at 258. See also id. at 876-77 n. 13, 103 S.Ct. at 2742, 77 L.Ed.2d at 249 n. 13 (it is "clear that specific standards for balancing aggravating against mitigating circumstances are not constitutionally required," (citing Jurek v. Texas, 428 U.S. 262, 270, 96 S.Ct. 2950, 2955, 49 L.Ed.2d 929 (1976)); Briley v. Bass, 750 F.2d 1238, 1244 (4th Cir. 1984) (relying on the subsequent decision of the Supreme Court in Zant v. Stephens in rejecting the Westbrook line of cases and holding that "the trial judge's failure to offer a fuller explanation of the concept of mitigation [did not] render the sentences unconstitutional").

We recognize that the challenged instructions in Stephens are different than those in the instant case, and Stephens is not, therefore, controlling. However, Stephens is a strong indication that the Constitution does not require specific and detailed instructions, outlined by the federal courts, with respect to mitigating and aggravating circumstances, so long as there is no reasonable possibility that the jury misunderstands its role in the capital sentencing procedure or misunderstands the meaning and function of mitigating circumstances. The Supreme Court in Stephens did not retreat from its prior insistence on reliability in the sentencing phase of a capital trial and reiterated that "[w]hat is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant v. Stephens, 462 U.S. at 879, 103 S.Ct. at 2745, 77 L.Ed.2d at 251 (citing Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and numerous other cases). We also recognize that death is different in kind from all other criminal sanctions, Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944 (1976), and that "[b]ecause of that qualitative difference, there is a corresponding difference in the need for reliability and the determination that death is the appropriate punishment in a specific case." Id. We have carefully considered that need for reliability in our review of the jury instructions and the attendant circumstances in the instant case. However, because we are convinced that there is no reasonable possibility that the jury misunderstood its role with respect to mitigating circumstances, we are confident that the need for reliability is satisfied.

As stated at the outset, we continue to agree with our holding in Spivey that the jury instructions must guide and focus the jury's consideration of mitigating circumstances. Today, we elaborate on Spivey and hold that the Constitution requires that there be no reasonable possibility that a juror will misunderstand the meaning and function of mitigating circumstances, i.e., that the law recognizes the existence of circumstances which in fairness or mercy may be considered as extenuating or reducing the punishment. What we reject is the notion that the Constitution requires that the jury instructions include any particular words or phrases to define the concept of mitigation or the function of mitigating circumstances. It is sufficient from a constitutional standpoint if it is clear from the entire charge considered in context that a reasonable jury could not have misunderstood the meaning and function of mitigating circumstances. To the extent that Westbrook and its progeny are inconsistent, those cases are overruled.

In light of the foregoing, we hold that the court's instructions concerning mitigating circumstances were not constitutionally deficient and, therefore, Peek is not entitled to a new sentencing hearing on that ground.

SECTION III. CONCLUSION

Finding no merit in Peek's challenges to the constitutionality of his convictions and sentences, the judgment of the district court denying habeas corpus relief is

AFFIRMED.

APPENDIX A [70] THE CHARGE OF THE COURT

Ladies and Gentlemen of the Jury, the Defendant in this case has been found guilty of the three Counts in the Bill of Indictment against him, wherein he's charged with Count 1, Kidnapping, Count 2, Murder, and Count 3, Murder. I'd like to read to you again the two Code Sections that are involved in this. And I can now read them to you in their entirety whereas previously, they were only given to you in pertinent parts. Code Section 26-1311 reads as follows: "Kidnapping, subsection (A) A person commits Kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will." Then, the last paragraph of the section, "A person convicted of Kidnapping shall be punished by imprisonment for not less than one nor more than 20 years provided that a person convicted of Kidnapping for ransom shall be punished by life in prisonment [sic] or by death."

Now, we do not have Kidnapping for ransom in this case. But then, it goes on and says, "and provided further, that if the person Kidnapped shall have received bodily injury, the person convicted shall be punished by life imprisonment or by death." Code Section 26-1101, entitled Murder, reads as follows, subsection "(A) A person commits Murder when he unlawfully and with malice aforethought either express or implied causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all of the circumstances of the killing show an abandoned and malignant heart." And subsection, (C) which reads as follows, "A person convicted of Murder shall be punished by death or by imprisonment for life." And now it is your duty, in regards to these three particular Counts within the limits prescribed by law, to determine the penalty which shall be imposed as punishment for these three offenses which, as I have just indicated to you, are all capital felonies.

In arriving at the determination for the punishment for Kidnapping and Murder, you are authorized to consider all of the evidence received in Court presented by both the State and the Defendant throughout the trial before you. You are authorized to consider the facts and circumstances, if any, in extenuation, mitigation or aggravation of punishment which may have been submitted to you. And of course, no evidence was submitted, but you do have the arguments of the District Attorney for the State and of Mr. Ashley as Counsel of record for the Defendant.

However, it is not essential to your decision that you find extenuating or mitigating facts and circumstances on the one hand, or facts and circumstances in aggravation on the other. Please do not confuse this with the charge which I shall give you a little bit later insofar as statutory aggravating circumstances may be concerned.

Now, the laws of Georgia were changed by the General Assembly in 1974 to provide that the Judges would impose the sentences in all cases rather than the Juries except in capital felonies. This change of law as I said, was during the 1974 session and became effective on July 1, 1974. Your responsibility will be to make a further determination as related to your verdicts of guilty as to Counts # 1, 2, and 3, charging the Defendant guilty of the offenses of Kidnapping, Murder and Murder which as I have already stated to you, are all three capital felonies. I would like to call to your attention the pertinent portions of Code Section 27-2534, which has to do with this part of the proceedings that we are now in. "Pre-Sentence Hearings in felony cases. At the conclusion of all felony cases heard by a Jury, and after argument of Counsel and proper charge from the Court, the Jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment." May I veer off here to say, you have already accomplished that. "Where a Jury returns a verdict or finding of guilty, the Court shall resume the trial and conduct a Pre-Sentence Hearing before the Jury at which time, the only issues shall be the determination of punishment to be imposed."

Now, that is only as related now, and I think you will see as I cite it a little bit later, as to capital felonies, because as I stated to you as to all other felonies, it is now the duty of the Court to impose punishment. "In such hearings subject to the laws of evidence, the Jury shall hear additional evidence in extenuation, mitigation and aggravation of punishment including the record of any prior criminal convictions and pleas of guilty or pleas of Nolo Contendere of the Defendant or the absence of any such prior criminal convictions and pleas. Provided, however, that only such evidence in aggravation as the State has made known to the Defendant prior to his trial shall be admissible. The Jury shall also hear argument by the Defendant or his Counsel, and the Prosecuting Attorney as provided by law regarding the punishment to be imposed. The Prosecuting Attorney shall open and the Defendant shall conclude the arguments to the Jury. Upon the conclusion of the evidence and the arguments, the Judge shall give the Jury appropriate instructions and the Jury shall retire to determine the punishment to be imposed."

Now, this is a real pertinent part, "In cases in which the Death Penalty may be imposed by a Jury, the additional procedure provided in section 27-2534.1," and I will charge you the pertinent portions of that Code Section in just a minute, "shall be followed. The Jury shall fix a sentence within the limits prescribed by law. The Judge shall impose the sentence fixed by the Jury as provided by law."

Now, that has been been modified to the extent that you will be making only a finding as to certain statutory aggravating circumstances if you find such to exist. And those findings as related thereto, will determine the sentence to be given in this case, that, plus a recommendation. And I will go into that in just a moment. Pertinent portions of Code Section 27-2534.1, entitled "Mitigating and aggravating circumstances, death penalty," reads as follows: And I will tell you that some of this, of course, does not apply, but I have to read it in order that it will make sense. Subsection "(A) The Death Penalty may be imposed for the offenses of aircraft hijacking or treason in any case." Now, of course, we don't have either of those offenses involved here. "(B) In all cases of other offenses for which the Death Penalty may be authorized the Judge shall consider, or he shall include in his instructions to the Jury. For it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence." And I give you in charge only two of those specific statutory aggravating circumstances that are set out there. They both deal with "the offense of one capital felony being committed while the offender was engaged in the commission of another capital felony."

In this case, there would be the offense of Kidnapping was committed while the offender was engaged in the commission of another capital felony, to-wit Murder. Or as to Count, that is to Count 1, as to Count 2 and 3, the offense of Murder was committed while the offender was engaged in the commission of another capital felony, to-wit Kidnapping or, two, the offense of Murder was committed while the offender was engaged in the commission of another capital felony, to-wit Murder, and conceivably you could find both of those statutory aggravating circumstances and contend that the offense of Murder was committed while the offender was engaged in the commission of both capital felonies, to-wit Kidnapping and Murder.

And finally, subsection (C) of that Code Section reads, "The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the Jury for it's deliberations. The Jury if its verdict be a recommendation of death, shall designate in writing, signed by the Foreman of the Jury the aggravating circumstance or circumstances which it found beyond a reasonable doubt. Except in cases of treason or aircraft hijacking, unless at least one of the statutory aggravating circumstances enumerated in this section is so found, the Death Penalty shall not be imposed."

I charge you Code Section 27-2302, which reads as follows: "Recommendation to Mercy. In all capital cases other than those of homicide, when the verdict is guilty with a recommendation to mercy, it shall be legal and shall be a recommendation to the Judge of imprisonment for life. Such recommendation shall be binding upon the Judge."

I charge you Code Section 26-3102, which reads as follows: "Capital offenses, Jury Verdict and Sentence. Where upon a trial by Jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the Jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the Court shall sentence the Defendant to death. Where a sentence of death is not recommended by the Jury, the Court shall sentence the Defendant to imprisonment as provided by law. Unless the Jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in it's verdict, the Court shall not sentence the Defendant to death provided that no such finding of statutory aggravating circumstance shall be necessary in the offenses of treason or aircraft hijacking. The provisions of this section shall not effect the sentence when the case is tried without a Jury or when the Judge accepts a guilty plea."

Now, I have prepared for you here, the certain statutory aggravating circumstances as applied to this case which is required under law as I have already referred to the Code Section and to those, hoping that it may be of some help to you in a form which will go out with you, so, that you may perform the duty expected of you under these Code Sections which I have just read.

The first one is headed with the heading of the case and says, "As to Count 1, 2," and that 2 is just the second listed aggravating statutory circumstance. It reads, "The offense of Kidnapping was committed while the offender was engaged in the commission of another capital felony, to-wit Murder. 1. Do you find that the statutory aggravating circumstances above set out has been shown beyond a reasonable doubt?" And there's a place for you to either check yes or no. "2. If the question above is answered yes, do you recommend the Defendant David Peek, be given the Death Penalty or Life Imprisonment?" And you check whichever one you indicate. It's then, to be dated and signed by your Foreman.

As to Count 2, the heading again of the case, "# 1." And here's where you have two alternatives, either/or or both. "The offense of Murder was committed while the offender was engaged in the commission of another capital felony, to-wit Kidnapping. Or, the offense of Murder was committed while the offender was engaged in the commission of another capital felony, to-wit, Murder."

Now, conceivably as I have said before, the offense of Murder as charged in count 2 could have been committed while the offender was engaged in the commission of two capital felonies, one, for Kidnapping and another for another Murder. So, "Do you find that the statutory aggravating circumstances above set out, one or two have been shown beyond a reasonable doubt?" And your answer would be, either yes or no. "Which one?" And you would either check one or two. And if you felt that both of them existed, you would check both of them. "If the question above is yes, do you recommend that the Defendant, David Peek, be given the Death Penalty or Life Imprisonment?" And you must check one or other of those and let it be dated and signed by your Foreman.

You have the same alternatives as to Count 3, because Count 3 is also, Murder and you have the choice between, "the offense of Murder being committed while the offender was engaged in the commission of another capital felony, to-wit Kidnapping. Or the offense of Murder was committed while the offender was engaged in the commission of another capital felony, to-wit, Murder." Or a finding of both. "Do you find that the statutory aggravating circumstances above set out, one or two, has been shown beyond a reasonable doubt?" And a place to check yes or no, "which one," one or two and if you believe both, you can check both. "If the question above is answered yes, do you recommend that the Defendant, David Peek, be given the Death Penalty or Life Imprisonment." And you would check one or the other and it would be dated and signed by your Foreman and returned back into Open Court.

Now, Ladies and Gentlemen, I charge you that you shall not in your verdict as to punishment on Counts 1, 2, or 3 against this Defendant, recommend punishment by death if you find the statutory aggravating circumstances exist under the influence of passion, prejudice or any other arbitrary factor. But as I have previously stated, it should be based on the evidence presented in this case and in the original case and the law which I gave you prior to this charge on the original case to a moral and reasonable certainty and beyond a reasonable doubt.

The determination of guilt or innocence is now past and has been made. And now the Jury, if it's verdict be a recommendation of Death, shall designate it in writing, signed by the Foreman of the Jury on this form, the aggravating circumstances which it finds beyond a reasonable doubt would likewise be designated.

Unless the statutory aggravating circumstance or one of them, enumerated, on these forms is found beyond a reasonable doubt, the Death Penalty shall not be imposed.

In short, Members of the Jury, as I have said, before you would [sic] authorized to recommend the Death Penalty, you must be satisfied that the State has proven to you to a moral and reasonable certainty and beyond a reasonable doubt that the statutory aggravating circumstance given you or one of them given you in this charge as related to each of the Counts, have or has been proven to you to a moral and reasonable certainty and beyond a reasonable doubt. You must write your verdict as you have before and you must determine as I have said, if you find an aggravating circumstance, indicate whether you recommend the Death Penalty or Life Imprisonment. If you do not find either of the statutory aggravating circumstances, then, the penalty will automatically be life imprisonment. Remember again, that this decision must be unanimous and agreed to by all twelve of you. Now, you may once again retire and consider the punishment feature of your verdict.