concurring specially:
Most respectfully, I concur in the judgment of the court but not in the reasoning of the majority opinion.
Although I agree that Michigan v. Jackson is an intervening change in the law, I do not believe that it is retroactive as to cases that are “final” and being reviewed by way of collateral attack. Solem v. Stumes and Shea v. Louisiana dictate such a conclusion and are reinforced by Griffith v. Kentucky.
In addition, I do not think the sentencing phase of a capital case falls within the phrase “truth-seeking” as used in opinions of the Supreme Court. Nor do I agree with the analysis used by the majority in that regard.
I do join in the discussion and holding regarding harmless error (section IIA 3) and no assistance of counsel (section IIB).