concurring, specially:
I concur with nearly everything that Judge Gibson has written, except that an affirmance can be squared with the cases in this Circuit following Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Thus, I concur with Judge Clark’s decision of this case. Realizing this is a judgment subject to reasonable disagreement, until this Circuit is prepared to narrow the broad application of Sandstrom or is told to do so by the Supreme Court, I think a capital case like this is too close to call in favor of the State. Apparently the retroactivity of Sandstrom is under consideration by the Supreme Court. Koehler v. Engle, — U.S. —, 104 S.Ct. 231, 78 L.Ed.2d 224 (1984). If the Court decides against retroactivity, then the issue on which we reverse would not be applicable to Patterson’s trial in 1975, Sandstrom having been decided in 1979. I agree with Judge Gibson on his resolution of the other issues, although it is not necessary for the Court to reach those points in view of our decision on Sandstrom.