concurring.
I concur in the principal opinion but also believe that Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), prohibits the state from seeking the death penalty in every instance where (1) the jury in the first trial rejected the death penalty, or (2) where the state did not seek the death penalty at the first trial. Both constitute double jeopardy.