(dissenting):
An issue crucial to the legality of the conviction and the death penalty in this case has not been decided by a majority of the justices of this Court on either the direct appeal or this appeal, even though it was discussed in the direct appeal. On this appeal, the majority does not address the issue, which is whether a conviction and death penalty can be sustained on a vote of less than a majority of the justices of this Court. For the reasons explained below, I would set the death penalty aside and remand for a new penalty hearing.
This issue arises because of the divisions in the Court in the first appeal. A jury convicted ElRoy Tillman of capital homicide and imposed the death penalty. A divided Court affirmed the conviction and the sentence on appeal in State v. Tillman, 750 P.2d 546 (Utah 1987). Although Chief Justice Hall’s lead opinion stated the position of a majority of the Court on most issues, no one opinion stated the position of the majority on all issues. Id. at 550-77. Justice Stewart wrote an opinion concurring in part and concurring in the result in part. Id. at 577-82. Justice Howe also wrote a concurring and concurring in the result opinion. Id. at 582-83. Justice Durham wrote a concurring and dissenting opinion, id. at 583-91, as did Justice Zimmerman, id. at 591.
I. SCOPE OF HABEAS CORPUS REVIEW
A proceeding for extraordinary relief in the form of a petition for habeas corpus constitutes a collateral attack on a conviction or sentence, or both.1 The grounds on which a conviction may be successfully attacked are limited. The writ is not a substitute for a direct appeal, “especially for ordinary types of trial error that are not likely to affect the outcome of a trial.” Hurst v. Cook, 777 P.2d 1029, 1034 (Utah 1989); accord Bundy v. DeLand, 763 P.2d 803, 804 (Utah 1988); Andrews v. Shulsen, 773 P.2d 832, 833 (1988); Lopez v. Shulsen, 716 P.2d 787, 788 (Utah 1986); Codianna v. Morris, 660 P.2d 1101, 1104 (Utah 1983). Issues resolved on direct appeal against a defendant may not be reasserted in a habe-as proceeding, and issues that should have been raised on appeal are not legitimate *225grounds for seeking a writ of habeas corpus “except in unusual circumstances.” Codianna, 660 P.2d at 1104; see also Chess v. Smith, 617 P.2d 341 (Utah 1980). Habeas corpus provides a means for collaterally attacking a conviction because of unusual circumstances that have led to an obvious injustice. Usually that means a substantial and prejudicial denial of a constitutional right.2 Hurst, 777 P.2d at 1035. In Martinez v. Smith, 602 P.2d 700, 702 (Utah 1979), Justice Crockett restated the basic policy that has undergirded habeas corpus law in this state for decades:
It is true that we have repeatedly declared that any claims of error or impropriety should be asserted in the regular procedure provided for on appeals and that, if that is not done, the writ of habeas corpus may not be used as a belated appeal. Nevertheless, howsoever desirable it may be to adhere to the rules, the law should not be so blind and unreasoning that where an injustice has resulted the victim should be without remedy. For that reason, as indicated in the cited cases, the writ should be available in rare cases, where it appears that there is a strong likelihood that there has been such unfairness, or failure to accord due process of law, that it would be wholly unconscionable not to reexamine the conviction.
(Footnotes omitted.)
The “unusual circumstances” test is not a bright-line standard. A review of the cases indicates a variety of situations in which this Court has found “unusual circumstances” to exist. See generally Hurst, 777 P.2d at 1036. This Court has found unusual circumstances that justified addressing a claim on the merits, irrespective of whether we granted the petitioner the relief sought, in the following instances: (1) a claim that a new rule of law, effective after the direct appeal, should be applied retroactively to the defendant’s conviction or death penalty hearing, Andrews v. Morris, 677 P.2d 81 (Utah 1983); (2) a claim that a jury was selected in part on the basis of racial considerations, Andrews v. Barnes, 779 P.2d 228 (Utah) (per curiam), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 341 (1989); (3) a claim that a defendant was denied the effective assistance of trial or appellate counsel, Fernandez v. Cook, 783 P.2d 547 (Utah 1989); Bundy, 763 P.2d at 805; Codianna, 660 P.2d at 1108; see also Chess, 617 P.2d at 344; (4) a claim that the sentence imposed was not authorized by law or was otherwise illegal, Helmuth v. Morris, 598 P.2d 333, 335 (Utah 1979); Rammell v. Smith, 560 P.2d 1108 (Utah 1977); (5) a claim that there was such a possibility of prejudice against the defendant in the conduct of the trial as to make the trial fundamentally unfair, Chess, 617 P.2d at 344; see also Andrews v. Barnes, 779 P.2d 228, 229 (Utah 1989); Andrews v. Haun, 779 P.2d 229, 230 (Utah 1989); (6) a claim that the prosecution suppressed exculpatory evidence, Codianna, 660 P.2d at 1106; Gallegos v. Turner, 17 Utah 2d 273, 409 P.2d 386 (1965); (7) a claim of newly discovered evidence, see State v. Lafferty, 776 P.2d 631 (Utah 1989) (on reference from federal district court; proceeding was in the nature of habeas review); (8) a claim that a guilty plea was improperly taken, Martinez v. Smith, 602 P.2d 700 (Utah 1979); (9) a claim that the court convicting the defendant had no jurisdiction, see, e.g., Sullivan v. Turner, 22 Utah 2d 85, 448 P.2d 907 (1968); Thompson v. Harris, 106 Utah 32, 144 P.2d 761 (1943); (10) a claim that a conviction was based on a void statute or ordinance, Morgan v. Salt Lake City, 78 Utah 403, 3 P.2d 510 (1931).
I submit that the failure of a majority of this Court to address and resolve an issue critical to the legitimacy of a conviction and death penalty is an “unusual circumstance” and that the majority commits constitutional error by not doing so.
I now address how the issue arose, why the issue was not addressed on direct appeal, and how I think it should be resolved.
*226II. JURY UNANIMITY WITH RESPECT TO THE AGGRAVATING CIRCUMSTANCES
The aggravating circumstances charged were burglary, aggravated burglary, arson, and aggravated arson. The jury was not requested or directed to return special verdicts on the four types of capital homicide. Instead, the jury returned a general verdict of guilty of capital homicide, without specifying the aggravating circumstance or circumstances found.
On the direct appeal, Chief Justice Hall and Justice Howe were of the view, as stated in the lead opinion, that jury unanimity was not required in finding which aggravating circumstances defendant committed, so long as the jurors were unanimous on the ultimate issue of guilt. In other words, the jurors were entitled to find Tillman guilty of capital homicide, even if only some members of the jury found one aggravating circumstance while the remaining jurors found other aggravating circumstances.
That, however, was not the majority view. Justices Stewart, Durham, and Zimmerman joined to hold that Article I, section 10 of the Utah Constitution requires jury unanimity as to each element of an offense and that in a capital case the jury must unanimously agree on at least one aggravating circumstance. Tillman, 750 P.2d at 578-80 (Stewart, J., concurring in part and concurring in the result); id. at 585-88 (Durham, J., concurring and dissenting); id. at 591 (Zimmerman, J., concurring and dissenting). Justices Durham and Zimmerman would have reversed the conviction for that and other reasons, but they did not address the issue of whether the error in the unanimity instruction was harmless. Indeed, they expressly declined to undertake a harmless error analysis. Tillman, 750 P.2d at 588 (Durham, J., concurring and dissenting); id. at 591 (Zimmerman, J., concurring and dissenting). Justice Stewart stated his view that although the instructions on unanimity were not as explicit and detailed as was desirable, they were adequate because the jury would have construed them to require unanimity.3 In a footnote, Justice Stewart also stated in passing that even if the unanimity instruction were error, it was harmless because there was no “real dispute in this case that the defendant in fact committed the arson, aggravated arson, burglary, and aggravated burglary.” Id. at 580 n. 1.
In sum, Justices Durham, Zimmerman, and Stewart agreed in the abstract that jury unanimity was required, but only Justice Stewart stated that the instruction was adequate because even if incorrect, it was harmless. Because Chief Justice Hall and Justice Howe did not think that jury unanimity was required, they did not decide whether the instruction was correct or, if incorrect, whether it was harmless. In short, a majority of the Court has never decided whether the unanimity instruction was either correct or harmless error if incorrect.
The anomalous result of this highly unusual permutation of votes resulted in the *227affirmance of a conviction and death sentence on the basis of a single justice’s vote on a critical constitutional issue. Thus, the position of the only justice to find the instruction valid became, in effect, the position of the entire Court. That result, especially in a capital case, robs the affirmance of its legitimacy.
On direct appeal, no justice of this Court noted this anomaly. Tillman could not have raised this issue on direct appeal because the issue did not appear until after this Court handed down its opinion. Therefore, it is obligatory for this Court to address the issue on the merits in this habeas proceeding because this Court, sitting en banc, can affirm a conviction and sentence only by a majority vote on all issues necessary to the disposition of a case.
Accordingly, it is necessary, in my view, to decide the issue of whether the conviction and death sentence can be sustained in light of established Utah law that jury unanimity is constitutionally required as to each element of an offense. Because no other member of the Court agreed with me on direct appeal that the unanimity instruction was correct, I feel obliged to assume, for purposes of this appeal, that it was not.4 Therefore, I proceed to analyze whether the error was harmless.
Because it is impossible to know how the jury voted on the four aggravating circumstances and because it was possible, at least in the abstract, that the jury was not unanimous on any one circumstance, I must assume that there was no jury unanimity as to any aggravating circumstance. In this proceeding, Tillman contends that the evidence was not sufficient to support the aggravating circumstances of arson and aggravated arson. On direct appeal, Chief Justice Hall found that the evidence was sufficient to support the verdict finding Tillman guilty of capital homicide, Tillman, 750 P.2d at 566, but no other member of the Court concurred in that part of his opinion.5 But even if all the other members had concurred in that finding, it would not have resolved the issue of harmless error. A finding that the evidence is sufficient to support a verdict is not the equivalent of a finding that an error is harmless, especially when the error is constitutional in nature.
In criminal cases dealing with nonconsti-tutional errors, an error is not harmless if there is such a high likelihood of a different outcome that our confidence in the jury’s verdict is undermined. State v. Bishop, 753 P.2d 439, 477 (Utah 1988); State v. Knight, 734 P.2d 913, 919 (Utah 1987). We have not heretofore defined the standard for determining when a state constitutional error can be deemed harmless. Bishop, 753 P.2d at 500 (Zimmerman, J., concurring in the result); State v. Hackford, 737 P.2d 200, 205 n. 3 (Utah 1987). Under federal constitutional law, a conviction can be affirmed in some instances, notwithstanding a federal constitutional error, if the error is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 *228L.Ed.2d 705 (1967). In other instances, federal constitutional errors are per se reversible. Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3105-06, 92 L.Ed.2d 460 (1986).
The constitutional rights of criminal defendants under the Utah Constitution are no less important in their sphere than are federal constitutional rights. For that reason, I would hold that a state constitutional error must be harmless beyond a reasonable doubt unless the error produces the kind of prejudice that must be deemed inherently harmful.
The constitutional error at issue here is subject to a harmless error analysis that requires a close examination of the evidence as to the aggravating circumstances of capital homicide, since it is only on those issues that the unanimity requirement might have been violated. As to the actual killing, there is no issue with respect to unanimity.
Tillman does not question the sufficiency of the evidence supporting the aggravating circumstances of burglary and aggravated burglary, but does contest the sufficiency of the evidence as to arson and aggravated arson.6 Tillman’s concession as to the sufficiency of the evidence on burglary and aggravated burglary does not, of course, resolve the harmless error issue.
The only direct evidence of Tillman’s involvement in the crime, indeed the only evidence of his involvement at all, came from the testimony of Carla Sagers. According to her testimony, she was an equally culpable partner in the crime. Although the State could have prosecuted her as well for the crime of capital homicide, it decided, in effect, to buy her testimony by giving her total immunity from prosecution. There was no physical evidence, such as fingerprints, blood stains, etc., at the scene of the crime linking Tillman to the homicide. The police did not search either Tillman’s or Sagers’ apartment in an effort to find evidence of participation in the crime. Moreover, Carla Sagers herself on a prior occasion had set out alone to kill Mark Schoenfeld, but withdrew before the final act. The case against Tillman turned totally on her questionable credibility.
Nevertheless, to have convicted Tillman, the jury must have accepted at least the main thrust of Sagers’ testimony, and I am obliged to honor the jury’s determination of her credibility to the extent it is undisputed that the jury made such a determination. Because the jury unanimously found beyond a reasonable doubt that Tillman was guilty of the killing, it is certain that the jury also unanimously found beyond a reasonable doubt that Tillman committed the killing during the commission of a burglary and aggravated burglary because the homicide occurred inside the victim’s house while the victim was on his bed. The location of the killing necessarily meant that the killing took place during a burglary and an aggravated burglary.
Because the jury necessarily found beyond a reasonable doubt that Tillman committed burglary and aggravated burglary, and because proof of the crime of capital homicide requires proof of only one aggravating circumstance, it follows that the error in the unanimity instruction constituted harmless error beyond a reasonable doubt and that Tillman’s conviction cannot be set aside.
III. JURY UNANIMITY AND THE PENALTY PHASE
The issue of whether the failure to correctly instruct the jury with respect to unanimity on the aggravating circumstances constituted harmless error in the penalty proceeding requires a somewhat different analysis. Unlike the guilt phase, it is not possible to sustain the death penalty on the ground that burglary and aggravated burglary necessarily have been proved beyond a reasonable doubt because each of the four aggravating circumstances could have influenced the jury in imposing the penalty *229of death, given the uniquely delicate and profoundly consequential decision to impose a death penalty. See generally State v. Holland, 777 P.2d 1019 (Utah 1989); State v. Wood, 648 P.2d 71 (Utah), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982). Assuming, as I have, that arson and aggravated arson were not found by all jurors to have been proved beyond a reasonable doubt in the guilt phase, it is not possible to assess what influence the aggravating circumstances of arson and aggravated arson may have had in persuading the jury to choose the death penalty over a life sentence. As to these aggravating factors, there is nothing inherent in the jury’s conclusion of guilt that requires the subordinate conclusion that Tillman committed arson or aggravated arson.
Concededly, there was undisputed evidence of a fire that was started on the victim’s mattress, but that does not determine the issue. Whether the fire would have burned the structure of the house as required by the statutory definition of aggravated arson is arguable. See Utah Code Ann. § 76-6-104 (1978). There was no unarguable evidence that Tillman or Sagers intended to burn the structure. I acknowledge that the evidence would be adequate under a sufficiency of the evidence standard, but it is not possible to conclude that the instructional error was harmless beyond a reasonable doubt.
In addition, the damage from the. fire was minor. There is no evidence that the damage exceeded $5,000, the amount of damage a fire must cause to be a felony under the arson statute in effect at the time of the crime. Utah Code Ann. § 76— 6-102(2) (1978). Thus, the setting of the fire may only have constituted a misdemeanor. I cannot conclude that the Legislature intended a misdemeanor to constitute an aggravating circumstance of capital homicide under Utah Code Ann. § 76-5-202(l)(d). To so conclude would create a grave question as to the constitutionality of arson as an aggravating circumstance in a case such as this.
In any event, it is possible that the jury unanimously found the existence of all aggravating circumstances beyond a reasonable doubt.
The issue of the effect of whether the jury was properly instructed with respect to unanimity on the aggravating circumstances is complicated in the penalty hearing, however, because of the trial court’s Instruction No. 6, which stated:
You may consider as aggravating circumstances the very matters which you found to be present beyond a reasonable doubt as elements of the offense of first-degree murder in the guilt phase. The aggravating circumstances upon which you were instructed in the guilt phase were as follows:
The defendant intentionally or knowingly caused the death of Mark Allen Schoenfeld under any of the following circumstances:
The homicide was committed while the actor was engaged in the commission of, or an attempt to commit burglary or aggravated burglary and/or arson or aggravated arson.
Under this instruction you may consider as aggravating circumstances only those circumstances listed above which you, as a jury, unanimously found to exist beyond a reasonable doubt.
The last sentence of this instruction states that the jury should consider as aggravating circumstances “only those circumstances listed above which you, as a jury, unanimously found to exist beyond a reasonable doubt.” That language correctly stated the law and was not confusing concerning the requirement of unanimity as to the aggravating circumstances that could be considered. But the first sentence of the instruction interjects confusion; it carries forward into the penalty phase the lack of clarity as to the necessity for jury unanimity that arose in the guilt phase because it states that the “very matters which you found to be present beyond a reasonable doubt as elements of the offense of first-degree murder in the guilt phase” may be considered as aggravating circumstances. That sentence suggests *230that an aggravating circumstance found in the guilt phase, potentially by less than a unanimous jury, could be considered in the penalty phase, even .though the last sentence states otherwise. Because of this conflict in Instruction 6, the jury could have misapplied the law as to the requirement of unanimity in the penalty phase.
This confusion is compounded by an even more serious error in Instruction 6. The last sentence of Instruction 6 requires the jury to find the aggravating circumstances beyond a reasonable doubt. Reasonable doubt is defined in Instruction 12 as follows:
If after an impartial consideration and comparison of all the evidence in the case you can candidly say that you are not persuaded that the death penalty should be imposed, you have a reasonable doubt. But if after such impartial consideration and comparison of all the evidence you can truthfully say that you have been persuaded so as to have an abiding conviction that the death penalty is appropriate in this case, such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt. A reasonable doubt must be a real, substantial doubt and not one that is merely possible or imaginary.
(Emphasis added.)
This instruction was palpably erroneous. In State v. Johnson, 774 P.2d 1141 (Utah 1989), a majority of the Court made clear that such an instruction in the guilt phase of a criminal case was erroneous. 774 P.2d at 1147-49 (Stewart, J., concurring in the result, joined by Durham, J., and Zimmerman, J.); see also State v. Young, 853 P.2d 327, 345-346 (1993). The beyond-a-reasonable-doubt standard is unique to the law. Johnson, 774 P.2d at 1148. Instructing jurors that they may impose the death penalty with only the degree of certainty that jurors rely on in determining whether to buy a home, make financial investments, change jobs, or marry is utterly inappropriate and clearly unconstitutional. Human error in making “weighty and important” decisions in the conduct of one’s personal life is common, as shown, for example, by the high divorce rate and large numbers of bankruptcies. Of course, many of those decisions can be corrected, unlike the irreversible decision to execute. In truth, people do not make the weighty and important decisions in their lives with the same care and attitude the law demands from a jury when it authorizes the extinguishment of a life. For a court to instruct a jury to decide the issue of life or death on that basis is unlawful. See State v. Wood, 648 P.2d at 80-82; see also Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (instruction in guilt phase equating reasonable doubt with “grave uncertainty” and “actual substantial doubt” is violation of Due Process Clause). Allowing a jury to impose a death sentence on that basis is indefensible.8 I would reverse the death penalty and remand for a new hearing on this basis alone.
In addition, Instruction 13 in the penalty phase made it the jury’s duty, in effect, to impose the death penalty if the aggravating circumstances outweighed the mitigating circumstances. It was not the duty of the jury to impose the death penalty if it found that the aggravating circumstances outweighed the mitigating circumstances. *231In fact, the jury had no duty to impose the death penalty at all, irrespective of how it weighed the evidence. The law in this state is that the jury may impose the death penalty if the requirements of Wood and Holland are met. If a single juror harbors doubt that the death penalty is appropriate, then the duty of the jury is to impose a life sentence. It is inconsistent with the jury’s duty, properly stated and understood, for the trial judge to instruct, as he did here, that if the jury could not agree on the death penalty, then it would be discharged (as if it had failed in its duty) and the judge would impose a life sentence. Indeed, the trial judge should have informed the jury that a life sentence is presumptively a correct sentence. See State v. Pierre, 572 P.2d 1338, 1347-48 (Utah 1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 220, 58 L.Ed.2d 194 (1978). In my view, a jury ought to be told that a life sentence is an appropriate sentence and that its task is to choose between a life sentence and a death sentence.
In State v. Young, 853 P.2d at 384-385, Justice Durham detailed the legislative expansion of the circumstances in which the death penalty can be applied. Although I did not agree with her that the broadening of the death penalty statute made it an unconstitutional scheme, I am convinced that a limiting of the imposition of the death penalty in the penalty phase is essential to the continued constitutionality of the death penalty scheme. Therefore, if the instructions in the penalty phase do not succeed in narrowing the pool by enabling the jury to make reasonable distinctions, based on sound moral-legal principles for a death penalty, between those who should be given life sentences and those who should be given death sentences, the Utah death penalty statute will truly stand in grave constitutional jeopardy. It seems that juries are increasingly rubber stamping prosecutors’ requests for the death penalty. This Court cannot be true to the constitutions of the state and nation and allow the discretion of the prosecutor to be the de facto basis for selecting those to be executed by the state.
There were mitigating factors in this case. Tillman’s family testified on his behalf. Virtually all of the State’s case against Tillman came from a person who, herself, could have been prosecuted for capital homicide and yet was given total immunity from prosecution. The criminal law, for wholly pragmatic reasons, appears to have been applied discriminatorily. Furthermore, Carla Sagers’ testimony on some points was clearly contrived. Tillman had no record of any prior homicide, a factor that has been significant in a number of death penalty cases in this state, especially where there was only one homicide. Finally, although Tillman has a criminal record, his most serious crimes were committed more than twenty years ago, and only one, attempted robbery committed in 1962, appeared to be a crime of violence.
In my view, the penalty of death should be vacated and a new penalty hearing should be held.
. Rule 65B(b)(1) of the Utah Rules of Civil Procedure presently governs extraordinary relief proceedings. It provides for relief if "the commitment resulted in a substantial denial of rights." Although that rule spells out the procedure for asserting a petition for extraordinary relief, it is important to emphasize that substantively an extraordinary relief proceeding is a form of the writ of habeas corpus and has been referred to as such in innumerable cases over the years. See Hurst v. Cook, 777 P.2d 1029, 1035-37 (Utah 1989); Thompson v. Harris, 106 Utah 32, 42, 144 P.2d 761, 766 (1943). Of course, the writ of habeas corpus, which has always been available to challenge the legality of the detention of any person, is not confined to detentions under the criminal laws. For example, a parent or guardian may use the writ to obtain custody of an unlawfully detained child. E.g., Harrison v. Harker, 44 Utah 541, 142 P. 716 (1914).
. Rule 65B(b) was amended in 1991 to delete language requiring an allegation of a constitutional violation. Following our case law, Rule 65B(i) now allows a petitioner to seek extraordinary relief by asserting only that "the commitment resulted from a substantial denial of rights.” Utah R.Civ.P. 65B(b)(l) (1991).
. The main instruction was Instruction 15, which stated:
By the plea of not guilty the defendant denies each and every one of the essential elements of the charge, which elements are as follows:
1. That on or about May 26, 1982, in Salt Lake County, State of Utah, the defendant, EIRoy Tillman, caused the death of Mark Schoenfeld; and
2. That he acted intentionally or knowingly in causing the death of Mark Allen Schoen-feld; and
3.That at the time the homicide was committed, the defendant was engaged in the commission of, or attempting to commit burglary or aggravated burglary, and/or arson or aggravated arson.
If you find the State has proven beyond a reasonable doubt each and every one of these elements, then it is your duty to find the defendant guilty of the offense of criminal Homicide, Murder, First Degree, a Capital Offense.
. Justice Durham, in her separate concurring opinion, argues that Justices Hall and Howe "said that the instruction was correct because of their (minority) view on the requirements of the unanimity standard.” In fact, they said no such thing. They did not even discuss the issue. Furthermore, it is not possible to deduce what their position would have been had they addressed the issue. It simply does not follow that because they thought that unanimity was not required as to the aggravating circumstances, they would have concluded that the instruction given would be appropriate under a rule requiring unanimity. Under no reasonable view of the meaning of the term “holding" can it be said that Justices Hall and Howe "held” that the instruction was correct. Thus, Justice Durham is plainly incorrect in her statement that "three justices joined in a holding [her emphasis] predicated on the correctness of the instruction.” Justice Durham’s rationale would lead with equal force to the conclusion that she and Justice Zimmerman “held” that the instructional error was harmless, even though they expressly declined to reach that issue. In any event, capital cases ought not to be decided on such niceties.
. Chief Justice Hall wrote:
The jurors could have believed defendant committed the murder under any of the aggravating circumstances since each circumstance was supported by the evidence and the proof of any or all beyond a reasonable doubt satisfied the same circumstance requirement under the first degree murder offense.
Tillman, 750 P.2d at 566.
. Tillman argues that as a matter of law burglary and aggravated burglary cannot be aggravating circumstances because those two crimes were incidental to, or merged into, the crime of an intentional homicide. That argument was rejected on direct appeal. Tillman, 750 P.2d at 569-72; id. at 580-82 (Stewart, J., concurring in part and concurring in the result).
. I acknowledge that the correctness of the definition of the reasonable doubt standard as discussed above was not raised by counsel on direct appeal or on this appeal. A different assertion of error in the instruction was raised on direct appeal. State v. Tillman, 750 P.2d at 572-73. The error asserted was that the instruction shifted the burden of proof in the guilt phase and the burden of persuasion in the penalty phase to defendant. That construction was rejected by the Court. No issue was raised or addressed, however, as to the definition of the reasonable doubt standard. This Court is obligated to review for plain error in capital cases, and the issue should be addressed now. In State v. Holland, 777 P.2d at 1026, we stated: "In capital cases, this Court engages in a ‘comprehensive review’ of the record for manifest or plain error, whether or not raised for the first time on appeal and even though there was no objection at trial[.]” The error in the reasonable doubt instruction in this case is clearly plain error in my view, especially because of its tie-in to the unanimity and harmless error issues.