Rehearing Denied Sept. 15, 1988.

See 487 U.S. 1263.

On petition for writ of certiorari to the Supreme Court of Alabama.

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

I continue to believe that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U.S. 153, 231-241, 2973-2977 (1976) (MARSHALL, J., dissenting). But even if I did not hold this view, I would grant the petition for writ of certiorari and vacate the death sentence in this case, because the sentence was secured in flagrant violation of our decision in Caldwell v. Mississippi, 472 U.S. 320 (1985).

In Caldwell we vacated a sentence of death because the prosecutor " sought to minimize the jurys sense of the importance of its role" by stressing to the jury that its verdict would be subject to appellate review. Id., at 325. The prosecutor told the jury during the sentencing phase that "your decision is not the final de- [487 U.S. 1241, 1242] cision. . . . Y