concurring:
4[ 51 I concur. I write to point out that the 1997 amendment to section 76-3-207(4) which changed the requirement of jury unanimity to a vote of at least ten of the twelve jurors to impose the sentence of life without parole does not necessarily create a signifi*626cant risk of increased punishment to criminal defendants. Before the statute was enacted, a juror in a capital case might be torn between imposing the death penalty or giving a life sentence knowing that the defendant might be paroled after serving only part of a life sentence. The statute offers another alternative to the death penalty, by allowing the life sentence to be without the possibility of parole. The 1997 amendment simply made that alternative more available to a defendant. Although the defendant in the instant case characterizes the amendment as increasing the risk of punishment for his crime, in reality the amendment may have been the means by which he avoided the death penalty.
DURHAM, Justice,concurring:
52 I concur in the result of the majority opinion, and all of its reasoning, except the approach to the constitutional analysis contained in section IV. In that portion of the opinion, the majority declines to undertake a separate and distinct analysis of the ex post facto clauses of the Utah and United States Constitutions, noting that its analysis "applies to both." However, the opinion cites only to federal case law without specifying whether our holding is mandated by an adequate and independent state ground. In addition, the opinion does not contain a "plain statement" clarifying whether the federal cases are being "used only for the purpose of guidance ... [or whether they] themselves compel the result that the court has reached." Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). I fear that this approach might be construed as a commitment to move in lockstep with future federal development of ex post facto doctrine. I continue to be a proponent of independent state constitutional analysis on federalism grounds, believing we should use a primacy approach or dual analysis approach whenever possible. See State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1319 (1983) (stating that "a practice of deciding federal claims without attention to possibly decisive state issues can create an untenable position for this state's system of discretionary & weme Court review"); see also Hans A. Lh is, E. Pluribus-Constitutional Theory and State Courts, 18 Ga. L.Rev. 165, 174-80 (1984) (proposing that courts should apply state constitutional law first, reaching federal constitutional claims only when state law fails to provide protection); Hans A. Linde, Without Due Process: Unconstitutional Law in Oregon, 49 Or. L.Rev. 125, 138-85 (1970) (explaining that when a decision rests on independent state grounds, along with federal constitutional claims, federal courts are bound by the cited state constitutional premise, not the "identical" federal premise); Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 68 Tex. LRev. 977, 980-82 (1985) (discussing the importance of the plain statement requirement of Michigan ).