People v. Rodriguez

Justice LOHR

dissenting:

In this proceeding for postconviction relief under Crim.P. 35, the majority upholds the death sentence imposed on Frank D. Rodriguez for conviction of first-degree murder stemming from the killing of Lorraine Mar-telli. I would hold that the proceedings that led up to the jury determination that the death penalty should be imposed were fatally flawed and that the sentence to death must be vacated.1 .1 therefore respectfully dissent.

I.

A.

A sentence to death is qualitatively different from any other punishment because of its unique severity and finality. E.g., Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978); Woodson v. North *324Carolina, 428 U.S. 280, 303-05, 96 S.Ct. 2978, 2990-92, 49 L.Ed.2d 944 (1976); People v. Tenneson, 788 P.2d 786, 791-92 (Colo.1990); People v. Drake, 748 P.2d 1237, 1254 (Colo.1988). For this reason, both the United States Supreme Court, see, e.g., Mills v. Maryland, 486 U.S. 367, 383-84, 108 S.Ct. 1860, 1869-70, 100 L.Ed.2d 384 (1988), and this court, see, e.g., Tenneson, 788 P.2d at 791-92; Drake, 748 P.2d at 1254, have repeatedly emphasized the heightened need for sentencing reliability in capital cases. Yet, after acknowledging that the district court properly vacated certain of the convictions upon which the jury may have relied in arriving at the sentence to death, the majority upholds that sentence. Maj. op. at 283, 285-86. The majority’s holding, in my opinion, violates the general, constitutionally-based requirement of sentencing reliability and misapplies relevant United States Supreme Court precedent.

B.

In post-trial proceedings under Crim.P. 35, the district court vacated Rodriguez’s convictions for felony murder of Lorraine Martelli, conspiracy to commit second-degree kidnapping, and conspiracy to commit aggravated motor vehicle theft. The court vacated the felony murder conviction because Rodriguez had also been convicted of first-degree murder of Lorraine Martelli after deliberation, and two murder convictions cannot be imposed for the killing of a single victim. E.g., People v. Glover, 893 P.2d 1311, 1314 (Colo.1995). The conspiracy convictions were vacated because Rodriguez had been convicted on another conspiracy charge relating to the chain of events in question, and, as the majority notes, “ ‘conspiracy constitutes a single offense, although the agreement upon which the charge is founded contemplates the performance of several criminal acts.’ ” Maj. op. at 283 (quoting People v. Bradley, 169 Colo. 262, 265, 455 P.2d 199, 200 (1969)). In this case, as the majority observes, the conspiracy extended to several criminal acts and therefore could support only a single conviction for conspiracy rather than the three that were imposed. Maj. op. at 283.

C.

The jury was permitted to consider the felony murder conviction as part of the evidence at the penalty phase of Rodriguez’s trial. Specifically, the jury was instructed that the felony murder conviction did not in itself constitute an aggravating factor “[e]x-cept as required by the alleged [felony murder] aggravating factor_”2 R. at v. IV, pp. 774, 777 (this form of reference will be used throughout to cite to the volume and page number of the record in this case). Nevertheless, the majority reasons that Rodriguez’s death sentence need not be overturned, even after admitting that the evidence supporting the vacated felony murder conviction “also supports” one of the aggravating factors found by the jury, i.e., “intentionally causing the death of a person in the course of or in furtherance of a felony or in his immediate flight therefrom, § 16 — 11— 103(6)(g).” Maj. op. at 284.3 The majority supports its conclusion by hypothetically reconstructing the jury’s deliberation process and distinguishing Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). Maj. op. at 284-86. Because it is impossible for an appellate court to reconstruct a jury’s deliberation process, and because the majority misreads the Johnson precedent in view of the statutory role of jurors in Colorado, I must respectfully dissent from parts IX(F) and XIV of the majori*325ty opinion and its resolution of the corresponding issues 13,130, and 131.4

1.

First, the majority notes that “section 16-11-103 does not require a conviction for either felony murder or conspiracy to commit murder before those aggravating factors are found,” maj. op. at 284, and “[e]ven after the vacation of the felony murder conviction, Rodriguez meets the requirements of the aggravating factor found in section 16-11-103(6)(g),” maj. op. at 284.5 However, the majority has no way of knowing what weight the jury gave to the felony murder conviction in determining the existence of that aggravating factor, nor can the majority accurately assess the importance of any potentially invalid aggravating factor in the jury’s weighing process. Cf. Mills, 486 U.S. at 376-77, 108 S.Ct. at 1866-67 (“[T]he jury’s verdict must be set aside if it could be supported on one ground but not on another, and the reviewing court was uncertain which of the two grounds was relied upon by the jury in reaching the verdict. In reviewing death sentences, the Court has demanded even greater certainty that the jury’s conclusions rested on proper grounds. Unless we can rule out the substantial possibility that the jury may have rested its verdict on the ‘improper’ ground, we must remand for resen-tencing.”) (citations omitted).

Second, in Johnson, 486 U.S. at 586, 108 S.Ct. at 1986-87, the United States Supreme Court vacated a death penalty that was based on an aggravating factor stemming from a subsequently overturned felony conviction. The majority distinguishes Johnson as a case where the evidence relating to the felony conviction was otherwise inadmissible, whereas in Rodriguez’s case “the evidence supporting the convictions was properly before the sentencing jury” and was constitutionally obtained. Maj. op. at 285-86. Although the majority does not reference any specific United States Supreme Court eases in distinguishing Johnson, see maj. op. at 285, its reasoning apparently is based on footnote nine of that opinion:

In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), we held that on the facts of that case the invalidation of an aggravating circumstance did not, under Georgia’s capital sentencing scheme, require vacation of the death sentence. In reaching this holding, we specifically relied on the fact that the evidence adduced in support of the invalid aggravating circumstance was nonetheless properly admissible at the sentencing hearing. Id., at 887,103 S.Ct. at 2748.

Johnson, 486 U.S. at 590 n. 9, 108 S.Ct. at 1989 n. 9.6 Thus, the majority’s dismissal of *326the Johnson precedent, maj. op. at 285, finds support in that opinion’s reference, Johnson, 486 U.S. at 590 n. 9,108 S.Ct. at 1989 n. 9, to the holding of Zant v. Stephens, 462 U.S. 862, 887, 108 S.Ct. 2733, 2748, 77 L.Ed.2d 235 (1983), which affirmed a death penalty conviction despite invalidation of an aggravating circumstance where the underlying evidence supporting the questionable aggravating circumstance was otherwise admissible and another aggravating circumstance remained undisturbed.

However, the distinction between Johnson and Zant does not support an application of the Zant precedent to Rodriguez’s case. It is true that in Zant the United States Supreme Court held that although “the fact that the [invalid aggravating circumstance] instruction gave added weight to [otherwise admissible prior felony convictions] no doubt played some role in the deliberations of some jurors,” Zant, 462 U.S. at 904, 103 S.Ct. at 2757 (Rehnquist, J., concurring), invalidation of an aggravating circumstance that was based on otherwise admissible evidence would not result in vacation of the death penalty under Georgia’s death penalty statutory scheme where other aggravating circumstances remained intact, id. at 889, 103 S.Ct. at 2749 (majority opinion). However, the Court began its assessment by noting that “[t]he answer depends on the function of the jury’s finding of an aggravating circumstance under Georgia’s capital sentencing statute_” Id. at 864, 103 S.Ct. at 2736 (emphasis added).7 The Court then described the jury’s function in finding aggravating circumstances under Georgia law as limited:

In Georgia, unlike some other States, the jury is not instructed to give any special weight to any aggravating circumstance, to consider multiple aggravating eircumstances any more significant than a single such circumstance, or to balance aggravating against mitigating circumstances pursuant to any special standard ....
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... Instead, as the Georgia Supreme Court has unambiguously advised us, the aggravating circumstance merely performs the function of narrowing the category of persons convicted of murder who are eligible for the death penalty.

Id. at 873-75,103 S.Ct. at 2740-42 (footnotes omitted); see also id. at 871-72, 103 S.Ct. at 2739-40. Indeed, as noted in Justice Marshall’s dissent in Zant, “[t]he very premise of the ‘threshold’ theory adopted today is that statutory aggravating circumstances are not relied upon by the jury in reaching its ultimate sentencing decision, but are considered only in deciding whether the defendant is eligible to receive the death penalty.” Id. at 914, 103 S.Ct. at 2762 (Marshall, J., dissenting) (emphasis in original).

In other words, under the Georgia death penalty statutory scheme under review in Zant, the only purpose of a jury’s finding of an aggravating circumstance was to make the defendant death eligible. Id. at 871-72, 873-75, 914, 103 S.Ct. at 2739-40, 2740-42, 2762. Therefore, where an aggravating circumstance was invalidated or questioned, but the underlying evidence was otherwise admissible, and where the jury made independent findings of other valid aggravating factors, see id. at 868, 103 S.Ct. at 2738, there was no reason to invalidate the death penalty; the jury made the requisite finding of one aggravating factor notwithstanding the invalidation of another aggravating factor, and the jury never considered any evidence in voting for the death penalty that they otherwise would not have considered. The *327majority’s reasoning in this case mirrors the result in Zant. See maj. op. at 285-86.

However, because the Court’s rationale in Zant was based fundamentally on Georgia’s death penalty statutory framework, the Court took pains to limit its holding to cases where a jury’s finding of aggravating factors simply served the death eligibility function, and questioned any applicability to cases where a jury was further instructed to weigh aggravating factors against mitigating factors:

Finally, we note that in deciding this case we do not express any opinion concerning the possible significance of a holding that a particular aggravating circumstance is ‘invalid’ under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty.... Under Georgia’s sentencing scheme, and under the trial judge’s instructions in this case, no suggestion is made that the presence of more than one aggravating circumstance should be given special weight.

Id. at 890-91,103 S.Ct. at 2750. Indeed, the Court compared the Georgia death penalty statutory scheme to the approaches of other states, see id. at 873 n. 12, 103 S.Ct. at 2741 n. 12, and distinguished those other statutory schemes:

In each of these eases, the State Supreme Court set aside a death sentence based on both valid and invalid aggravating circumstances. Respondent advances these cases in support of his contention that a similar result is required here. However, examination of the relevant state statutes shows that in each of these States, not only must the jury find at least one aggravating circumstance in order to have the power to impose the death sentence; in addition, the law requires the jury to weigh the aggravating circumstances against the mitigating circumstances when it decides whether or not the death penalty should be imposed.

Id. at 873 n. 12, 103 S.Ct. at 2741 n. 12. Unlike the death penalty statutory scheme under examination in Zant, Colorado does require jurors to determine “[wjhether sufficient mitigating factors exist which outweigh any aggravating factor or factors found to exist.” § 16-11-103(2)(a)(II), 8A C.R.S. (1986).8

The United States Supreme Court reviewed the question reserved in Zant, 462 U.S. at 890-91, 103 S.Ct. at 2749-50, in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), and left no doubt that the majority’s resolution of issue thirteen is incorrect.9 In Clemons, the Mississippi Supreme Court upheld a death penalty despite questions surrounding one of several aggravating circumstances. 494 U.S. at 743-44, 110 S.Ct. at 1445-46. On review, the United States Supreme Court noted the question reserved in Zant, 462 U.S. at 890, 103 S.Ct. at 2749-50, and prefaced its discussion by distinguishing Mississippi’s statutory death penalty scheme:

In Mississippi, unlike the Georgia scheme considered in Zant, the finding of aggravating factors is part of the jury’s sentencing determination, and the jury is required to weigh any mitigating factors against the aggravating circumstances.

Clemons, 494 U.S. at 745, 110 S.Ct. at 1446 (footnote omitted). The Court then explicitly rejected the rationale upon which the majority resolves issue thirteen in this case, see maj. op. at 284, 285-86, and held that where an aggravating factor is invalidated but another aggravating factor remains, “[a]n automatic rule of affirmance in a weighing State would be invalid under Lockett v. Ohio, 438 *328U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), for it would not give defendants the individualized treatment that would result from actual reweighing of the mix of mitigating factors and aggravating circumstances.” Clemons, 494 U.S. at 752, 110 S.Ct. at 1450. Although the Court approved the constitutionality of harmless error analysis or actual reweighing of aggravating and mitigating circumstances by appellate courts reviewing death sentences, id. at 748-50,110 S.Ct. at 1448-49, the Court vacated the death penalty judgment and remanded the case for a proper reweighing, if appropriate under Mississippi law, by the Mississippi Supreme Court, id. at 752, 110 S.Ct. at 1450. The Court took care to note that the permissibility of an appellate court’s reweighing of aggravating and mitigating circumstances was for state supreme courts to decide, and recognized that such courts might conclude that reweighing or harmless error analysis was “extremely speculative or impossible.” Id. at 754, 110 S.Ct. at 1451.

In a concurrence and dissent, four members of the Court took issue with the majority’s approval of the reweighing of aggravating and mitigating circumstances by appellate courts. Id. at 756-74, 110 S.Ct. at 1452-62 (Blackmun, J., dissenting). Justice Blackmun cogently wrote:

If a jury’s verdict rests in part upon a constitutionally impermissible aggravating factor, and the State’s appellate court upholds the death sentence based upon its own reweighing of legitimate aggravating and mitigating circumstances, the appellate court, in any real sense, has not approved or affirmed the verdict of the jury. Rather, the reviewing court in that situation has assumed for itself the role of sentencer. The logical implication of the majority’s approach is that no trial-level sentencing procedure need be conducted at all. Instead, the record of a capital trial (including a sentencing hearing conducted before a court reporter) might as well be shipped to the appellate court, which then would determine the appropriate sentence in the first instance.

Id. at 762-63, 110 S.Ct. at 1455-56. Justice Blackmun then pointed out the fundamental flaw in allowing appellate courts to reweigh aggravating and mitigating factors, emphasizing that “both this Court and the Supreme Court of Mississippi repeatedly have emphasized that appellate courts are institutionally incapable of fulfilling the distinct functions performed by trial judges and juries,” id. at 765,110 S.Ct. at 1457 (footnote omitted), and concluding that the majority’s approval of appellate reweighing of aggravating and mitigating circumstances “flies in the face of this Court’s prior warnings concerning the institutional limitations of appellate courts,” id. at 773, 110 S.Ct. at 1461 (footnote omitted).10

The Mississippi Supreme Court apparently found Justice Blackmun’s concurrence and dissent convincing in view of Mississippi’s statutory death penalty scheme. On remand for a better articulation of the Mississippi Supreme Court’s reweighing of the aggravating and mitigating circumstances or other rationale, that court began by delineating a threshold question:

[Preliminary to any attempt we make on remand to clarify our analysis in upholding the death sentence, we must decide, as a matter of state law, our authority to reweigh aggravating and mitigating circumstances in order to uphold a death sentence which is based in part upon an improperly defined aggravating circumstance.

Clemons v. State, 593 So.2d 1004, 1005 (Miss.1992). After citing the statutory requirement that a jury impose the death penalty and reviewing other elements of the Mississippi statutory death penalty scheme, the *329court found the Supreme Court’s invitation to reweigh aggravating and mitigating circumstances precluded and held:

[T]wo things are clear: only the jury, by unanimous decision, can impose the death penalty; as to aggravating circumstances, this Court only has the authority to determine whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance. There is no authority for this Court to reweigh remaining aggravating circumstances when it finds one or more to be invalid or improperly defined, nor is there authority for this Court to find evidence to support a proper definition of an aggravating circumstance in order to uphold a death sentence by reweighing. Finding aggravating and mitigating circumstances, weighing them, and ultimately imposing a death sentence are, by statute, left to a properly instructed jury-

593 So.2d at 1006; accord, e.g., State v. Moore, 614 S.W.2d 348, 352 (Tenn.) (“While proof of these convictions was admissible for purposes other than mere reflection upon credibility, these crimes were not properly shown to qualify as aggravating circumstances under T.C.A. § 39 — 2404(i)(2). Yet they were offered for that very purpose and the jury was instructed that one of them did qualify. The Court has no way of knowing whether the jury would have imposed the death penalty had they not been permitted to so consider this evidence in their weighing process.”), cert. denied, 454 U.S. 970, 102 S.Ct. 517, 70 L.Ed.2d 388 (1981). In my opinion, the Colorado statutory death penalty scheme merits the same conclusion as that reached in Clemons, 593 So.2d at 1006.

2.

On another occasion, this court described Colorado’s death penalty statutory scheme as a multi-step process, where the jury must determine first “if at least one of the statutory aggravating factors exists,” Tenneson, 788 P.2d at 789 (citing § 16-1 l-103(2)(a)(I), -103(6), 8A C.R.S. (1986)), so as to narrow the group of persons who may be subjected to the death sentence, id. at 791. However, unlike the statutory scheme under scrutiny in Zant, 462 U.S. at 871-72, 874-75, 914, 103 S.Ct. at 2739-40, 2741-42, 2762, Colorado’s death penalty statute aims not just to narrow the class of death-eligible prisoners, but requires the additional step that the jury then weigh aggravating against mitigating factors, see, e.g., Tenneson, 788 P.2d at 789, 791, and precludes a jury verdict of death unless “[tjhere are insufficient mitigating factors to outweigh the aggravating factor or factors that were proved,” § 16 — 11—103(2)(b)(II)(B), 8A C.R.S. (1986). In the final analysis, the Colorado death penalty statutory scheme is like that of Mississippi, see Clemons, 593 So.2d at 1006, in that after weighing aggravating and mitigating factors “the jury makes the ultimate individualized decision on whether death is the appropriate penalty.” People v. Rodriguez (Rodriguez IV), 794 P.2d 965, 973 (Colo.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991); see also Tenneson, 788 P.2d at 795 (“All of the foregoing considerations and authorities contribute to support the conclusion that Colorado’s death penalty statute must be construed to require that the jury must be convinced beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors before a sentence to death can be imposed.”) (footnote omitted). Under the death penalty process applicable to Rodriguez, the weighing process and decision to implement a death sentence are firmly within the jurors’ hands, § 16 — 11— 103(2)(a)(II), -103(2)(b)(II)(B), 8A C.R.S. (1986), and a judge that considers the jury’s verdict to be clearly erroneous only has the authority to sentence the defendant to life imprisonment, § 16 — 11—103(2)(c), 8A C.R.S. (1986).

The jury in Rodriguez’s case found six aggravating factors. Maj. op. at 284. In Rodriguez IV, this court invalidated the aggravating factor that the commission of the crime was “ ‘especially heinous, cruel or depraved.’ ” 794 P.2d at 965, 982-83 (quoting § 16-ll-103(6)(j), 8A C.R.S. (1986)). Nevertheless, this court concluded that inclusion of the invalid aggravating factor was harmless error, after emphasizing that the evidence was otherwise admissible and noting that the jury had found five other aggravating factors. Id. at 983-84; see also maj. op. at 246-*33047 n. 4. I continue to adhere to my dissent in Rodriguez IV that the majority’s harmless error analysis amounted to “no more than a guess as to what the jury might have decided had it been properly instructed.” Id. at 1000 (Lohr, J., dissenting) (internal quotation marks and citations omitted); see also Zant, 462 U.S. at 916, 103 S.Ct. at 2763 (Marshall, J., dissenting) (“There is simply no way for this Court to know whether the jury would have sentenced respondent to death if the unconstitutional statutory aggravating circumstance had not been included in the judge’s charge. If it is important for the State to authorize and for the prosecution to request the submission of a particular statutory aggravating circumstance to the jury, ‘we must assume that in some cases [that circumstance] will be decisive in the [jury’s] choice between a life sentence and a death sentence.’ ”) (quoting Gardner v. Florida, 430 U.S. 349, 359, 97 S.Ct. 1197,1205, 51 L.Ed.2d 393 (1977) (Stevens, J.)).

Regardless, the majority mistakenly insists that only benign implications stem from the trial court’s vacation of Rodriguez’ duplica-tive convictions and the majority’s affirmance of that vacation. Maj. op. at 284-85. The majority characterizes the vacation of Rodriguez’ duplicative convictions as an innocuous technicality, in that all of the underlying evidence supporting the vacated convictions was otherwise admissible. Maj. op. at 285-86. As I have indicated however, supra part 1(C)(1), the majority’s analysis ignores the responsibility of jurors in capital cases in Colorado to weigh aggravating factors against mitigating factors. The existence of a conviction can in itself result in a jury concluding that an aggravating factor exists, regardless of the general admissibility of the underlying evidence. For example, the jury in this case was instructed specifically that convictions did not in themselves constitute aggravating circumstances, “except as required ” by the alleged felony murder aggravating factor. (Emphasis added). The jury may have interpreted this instruction alone to require that they find the existence of a felony murder aggravating factor based solely on Rodriguez’s subsequently vacated felony murder conviction. Although the jurors may have reached their aggravating factor conclusions independently, we will never know whether they arrived at their felony murder aggravating factor conclusion based on full analysis and discussion or whether they simply found the automatic existence of that aggravating factor based on the aforementioned jury instruction. Even assuming that the jury did not read the relevant instruction to require an automatic finding of the existence of a felony murder aggravating factor, the convictions themselves may have been considered by the jury during their decisions to lend certain aggravating factors greater importance in the weighing process. For these reasons, the majority errs in focusing on the admissibility of the underlying evidence and disregarding the potency of the actual convictions.

In short, (1) this court’s existing invalidation of one of the aggravating factors in this case, Rodriguez IV, 794 P.2d at 982-83, (2) the admitted questions surrounding two other aggravating factors and their potential invalidity, maj. op. at 284, and (3) the United States Supreme Court’s suggestion in Zant, Johnson, and Clemons, see discussion in supra part 1(C)(1), that a potentially erroneous aggravating circumstance finding, even when based on otherwise admissible evidence, renders a death sentence infirm when the jurors’ statutory role is to weigh aggravating circumstances against mitigating circumstances, together preclude the continued disregard of the fundamental errors of law in this case under the banner of “harmless error,” Rodriguez IV, 794 P.2d at 983-84.11 After all, the jury instruction in this case directed that “ ‘[i]f one or more jurors finds sufficient mitigating factor or factors exist that outweigh a specified aggravating factor or factors, then the result is a sentence of life imprisonment.’ ” Rodriguez IV, 794 P.2d at 981-82 (quoting Jury Instruction No. 15). In Rodriguez’s case, with one aggravating factor invalidated and the validity of another two aggravating factors preserved only by hy*331pothesizing the jury’s deliberation process, only three aggravating factors remain and it is unreasonable for this court to reweigh aggravating and mitigating factors or continue to dismiss this impact as harmless error considering the jurors’ mandate to weigh aggravating factors against mitigating factors before they impose a sentence of death.12

Even if the evidence was otherwise admissible, it is the jurors’ role to weigh aggravating factors, and an appellate court has no way of discerning what use the jury made of improper convictions in finding the existence of certain aggravating factors. This fundamental problem is particularly acute in the context of a capital case, which requires a heightened degree of sentencing reliability. In view of the applicable United States Supreme Court precedent, the questions surrounding several aggravating factors in this case, the invalidation of the “especially heinous, cruel, or depraved” aggravating factor relied upon by the jurors, and this state’s statutory death penalty requirement that jurors exclusively must weigh aggravating factors against mitigating factors before they reach a death sentence verdict, I would vacate Rodriguez’s death penalty and remand for the imposition of a sentence to life imprisonment.

II.

The General Assembly mandated that jurors in capital cases weigh aggravating factors against mitigating factors before rendering a death sentence. § 16 — 11—103(2)(a)(II), 8A C.R.S. (1986). Where jurors are obligated to weigh aggravating and mitigating factors before imposing a death sentence, the balance can be tipped when an aggravating factor is invalidated or questioned, even if another valid aggravating factor remains and the underlying evidence is otherwise admissible. In such circumstances, there are qualitatively different implications in comparison to a statutory scheme that simply requires jurors to determine whether one aggravating circumstance exists in order for a criminal to become death eligible.

Although this distinction does not attract the support of a majority of this court’s *332members, it is not the only issue of concern in this case. Absent the requested relief of vacation of the death penalty, this case should be remanded to the district court for evidentiary hearings and the resolution of several issues. Crim.P. 35(c)(3) requires that “[ujnless the motion and the files and record of the case show to the satisfaction of the court that the prisoner is not entitled to relief, the court shall cause a copy of said motion to be served on the prosecuting attorney, grant a prompt hearing thereon, and take whatever evidence is necessary for the disposition of the motion.” (Emphasis added). I recognize that efficiency is a concern, but the penalty of death is irrevocable and must not be imposed in absence of adherence to those procedures presented by our rules to assure full and fair consideration of a defendant’s contentions of error. In my opinion, the following issues warrant more thorough discussions on the merits or a remand for evidentiary hearings pursuant to Crim.P. 35(c)(3).

A.

The majority considers as a group 110 of the postconviction claims raised by Rodriguez and rejected by the district court on the basis that they had been previously raised and resolved on direct appeal. Maj. op. at 248. It disposes of ninety-two of those claims by concluding that Rodriguez decided not to reassert them on this appeal and therefore consciously relinquished them. Maj. op. at 248^19. This overlooks the basis of Rodriguez’s assertion of error, which is simply that the district court erred in concluding, without a hearing on the merits of the claim, that the claims had been previously raised and resolved on direct appeal.13 It is not the merit of the claims that is at issue here; it is the correctness of the district court’s ruling that the claims were previously raised and resolved on direct appeal that is now before us. This issue has been properly raised by Rodriguez in the present appeal, and I dissent to the majority’s refusal to address it.

In relying on its reassertion rule, the majority avoids addressing several claims that were dismissed by the district court as raised and resolved on direct appeal even though they were not addressed by this court on such appeal. For example, in ruling on the postconviction motion, the district court rejected as raised and resolved on direct appeal Rodriguez’s contentions that:

THE TRIAL COURT VIOLATED THE DEATH STATUTE AND DENIED MR. RODRIGUEZ DUE PROCESS OF LAW BY GRANTING THE STATE REBUTTAL CLOSING ARGUMENT AND BY REFUSING TO ALLOW MR. RODRIGUEZ SURREBUTTAL ARGUMENT ARGUMENT [sic].

(R. at v. I, p. 157).

MR. RODRIGUEZ WAS DENIED HIS RIGHTS UNDER THE DUE PROCESS, TRIAL BY JURY, CRUEL AND UNUSUAL PUNISHMENT CLAUSES AND THE DEATH STATUTE BECAUSE THE COURT SUBMITTED THE “KILLING A WITNESS” AGGRAVATING FACTOR TO THE JURY, SINCE THAT FACTOR WAS NEITHER FACTUALLY NOR LEGALLY APPLICABLE TO THIS CASE, AND SINCE THE INSTRUCTIONS TO THE JURY ON THAT FACTOR WERE MANIFESTLY INCORRECT.

(R. at v. I, p. 163).

THE SUBMISSION OF THE “UNDER SENTENCE OF IMPRISONMENT” AGGRAVATING FACTOR WAS IMPROPER, SINCE IT DOES NOT APPLY LEGALLY OR FACTUALLY TO THIS CASE, AND IF IT IS SO INTERPRETED AS TO ARGUABLY APPLY IN THIS CASE, IT VIOLATES THE DUE PROCESS AND CRUEL AND UNUSUAL PUNISHMENT CLAUSES OF THE FEDERAL AND COLORADO CONSTITUTIONS.

(R. at v. I, p. 163).

*333THE REFUSAL OF THE COURT TO CHANGE VENUE IN THIS CASE DENIED MR. RODRIGUEZ A FAIR TRIAL BY IMPARTIAL JURY AND DUE PROCESS OF LAW.

(R. at v. I, p. 171).

The district court dismissed the first of these listed claims by ruling that this court generally “resolved closing argument claims.” R. at v. I, p. 155. The district court rejected the second and third of these listed claims by holding that this court “resolved against the defendant all his other claims regarding the jury instructions.” R. at v. I, p. 159. Similarly, the district court dismissed the last listed claim, a venue assertion, by declaring broadly and without further explanation:

The [Supreme] Court also found that [Rodriguez’s] sentence was appropriate. It found that the evidence against him was overwhelming, that it amply supported the jury’s aggravating factors, and that the mitigating factors did not outweigh the aggravating factors. The court also found that the murder was particularly brutal and pitiless, that the defendant demonstrated no remorse, that the defendant had a serious criminal record, and that the jury did not impose the sentence under the influence of passion, prejudice, or any other arbitrary factor. As a result, this court concludes that the following claims are not available to the defendant in a Crim.P. 35(c) motion.

R. at v. I, p. 169. None of the aforementioned examples was in fact raised and resolved by this court on direct appeal in People v. Rodriguez, 794 P.2d 964, 964-65 (Colo.1990) (Rodriguez III), or Rodriguez IV, 794 P.2d at 965-91, the only cases referenced by the district court in dismissing Rodriguez’s 110 claims as raised and resolved, R. at v. I, p. 155.

These examples illustrate the need for more specific findings detailing the holdings of this court that are relied upon to establish whether each of the 110 claims has been raised and resolved. A hearing should be permitted to assist the district court in determining whether particular claims have been raised and resolved. Crim.P. 35 contemplates just such a procedure:

Unless the motion and the files and record of the case show to the satisfaction of the court that the prisoner is not entitled to relief, the court shall cause a copy of said motion to be served on the prosecuting attorney, grant a prompt hearing thereon, and take whatever evidence is necessary for the disposition of the motion. In all cases, the court shall determine the issues and make findings of fact and conclusions of law with respect thereto.

Crim.P. 35(c)(3) (quoted in relevant parts). For these reasons, I would remand issue one for a more detailed and accurate analysis or address the remaining ninety-two issues contained within issue one on the merits after dismissing those that were indeed raised and resolved on direct appeal. As a result, I respectfully dissent from part 11(A) of the majority opinion and its disposition of Rodriguez’s issue one.

B.

In section 11(D) of its opinion, the majority dismisses issue three as an attack on the constitutionality of the death penalty statute,14 an issue previously resolved by this court. Maj. op. at 249-50. However, although the majority correctly dismisses issues 6, 7, 8, and 87 as attacks on the constitutionality of the death penalty statute, maj. op. at-, the majority incorrectly assumes that the district court properly characterized the questions contained within issue three as redundant attacks on the constitutionality of the death penalty statute. The district court again swept away discrete issues by generalizing broadly:

The Colorado Supreme Court has previously construed C.R.S. 16-11-103, 8A (1986 Repl.Vol.), applicable here and as it existed prior to the July 1, 1988 amendments, consistent with the United States and Colorado constitutions. People v. Ten*334neson, 788 P.2d 786 (Colo.1990); People v. Davis, 794 P.2d 159. (Colo.1990), cert. denied, 498 U.S. 1018 [111 S.Ct. 662, 112 L.Ed.2d 656] (1991). As a result, the defendant’s attacks on the constitutionality of the statute are denied, as the Court has previously resolved them against the defendant's position....

R. at v. I, p. 209. The district court then detailed the specific claims asserted by Rodriguez in his Crim.P. 35(c) motion that the court determined to have been previously resolved. In doing so, the court included assertions by Rodriguez that were not addressed in either Tenneson, 788 P.2d at 786-800, or People v. Davis, 794 P.2d 159, 159-213 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991), including case-specific attacks on motion denials. For example, Rodriguez unsuccessfully argued that, “[t]he court erred by refusing to grant the motion to death qualify the judge.” R. at v. I, p. 209. The correctness of the district court’s characterization of the questions contained within issue three as attacks on the constitutionality of the death penalty statute is precisely the issue that Rodriguez is concerned with, and this court should have reviewed that characterization for accuracy, rejecting those claims settled in Tenneson and Davis and addressing the remainder on the merits or remanding for such consideration, rather than accepting the district court’s characterization at face value and rejecting issue three as an attack on the constitutionality of the death penalty statute. As a result, I respectfully dissent from the majority’s disposition of Rodriguez’s issue three in part 11(D) of the majority opinion.

C.

In part III of its opinion, the majority rejects issues 41, 42, 43, 44, 45, and 88 as inadequately raised. Maj. op. at 252. The majority describes its reasoning in dismissing claims forty-four and eighty-eight:

Because the district court can summarily dismiss claims inadequately presented to it, our consideration of such issues on appeal of the district court’s order would effectively grant Rodriguez a successive 35(c) motion without also burdening him with the harsher standard of review appropriate to a successive motion. We decline to grant Rodriguez this deference and, instead, uphold the district court’s dismissal of these claims, regardless of the adequacy of their presentation upon this appeal. We refuse to review the following issues [including forty-four and eighty-eight] because of Rodriguez’ failure to adequately specify the errors and legal grounds for relief at the district court level....

Maj. op. at 251 (citations omitted). The majority inexplicably never mentions issues 42, 43, or 45 in its litany of claims that the district court allegedly dismissed as inadequately raised and yet nevertheless concludes:

In issue 41, Rodriguez alleges error in the district court’s dismissal of postconviction claims which he now reasserts in Issues 42, 43, 44, 45, and 88. Because we hold these underlying issues to be inadequately presented, we reject Issue 41.

Maj. op. at 252. Notwithstanding the failure to include issues 42, 43, and 45 in the discussion of those claims that the district court allegedly dismissed as inadequately raised, the majority affirms the district court’s alleged dismissal of issues 42, 43, 44, 45, and 88 as inadequately raised. Maj. op. at 251-52.

However, the district court did not dismiss issues 42, 43, 44, 45, and 88 as inadequately raised. Instead, the district court dismissed these claims on other grounds, (1) dismissing issues forty-four and eighty-eight as eviden-tiary issues that were “forfeited” for failing to raise the issues on direct appeal, R. at v. I, pp. 191, 190, and then (2) apparently in the alternative, rejecting both of these claims as well as issues 42, 43, and 45 as nonconstitu-tional issues, R. at v. I, 212-13. The majority mistakenly dismisses issues 42, 43, 44, 45 and 88 as inadequately raised, unless the majority’s characterization is an independent conclusion in which case at least a modicum of analysis or explanation is warranted. See maj. op. at 250-51. Since the majority explicitly rejects the district court’s waiver rule, maj. op. at 253-54 & n. 20, issues forty-four and eighty-eight should be remanded for consideration in view of the majority’s waiver *335pronouncements or this court should review issue forty-one on the merits15 and determine whether issues 42, 43, 44, 45, and 88 were properly dismissed in the alternative as nonconstitutional issues. For these reasons, I respectfully dissent from the majority’s disposition of issues 41, 42, 43, 44, 45, and 88, as set forth in part III of the majority opinion.

D.

The majority acknowledges that failure to raise an issue on direct appeal will not result in waiver absent an abuse of process, and that abuse of process is an affirmative defense to be pleaded and proved by the state. Maj. op. at 253 & n. 20. However, the majority does not require the state to meet this burden and instead creates an analytical framework whereby a defendant’s failure to reassert claims in this court, even where the defendant correctly challenges the claims as incorrectly dismissed at the district court level based on faulty waiver principles, constitutes a “conscious relinquishment” by the defendant. Maj. op. at 254. The majority’s “conscious relinquishment” rule, maj. op. at 254, is particularly surprising considering the majority’s admission that “we have had little occasion to address [the waiver standard],” and indeed “have addressed the [waiver] standard only obliquely, through dicta and dismissals of claims.” Maj. op. at 252. Considering that “[t]he case law and dicta which do address the [waiver] standard are not easily synthesized,” maj. op. at 252, it cannot reasonably be maintained that Rodriguez’s understanding of the standard was such that he could consciously decide to relinquish certain claims in failing to reassert them now. In my opinion, the better course would be to clarify the waiver standard and remand the case to allow the state to meet the “abuse of process” burden, or to determine whether the state satisfied the abuse of process burden based on already submitted materials. As a result, I respectfully dissent from the majority’s rejection of Rodriguez’s issues 2, 57, 65, 80, 99(A), 99(D), 99(E), 107, 133, 146, and 147, contained within part IV of the majority opinion.16

E.

The majority correctly asserts that the burden is on the defendant to preserve a record for appeal. Maj. op. at 260. However, the majority glosses over two possible qualifications to this rule in the context of lost jury questionnaires or other record material, and instead scolds the defendant for not attempting to prepare a statement based on his recollections of the questionnaires. Maj. op. at 260. Pointing to C.A.R. 10(c), the majority concludes that Rodriguez “has not prepared such a statement nor provided this court with specific assertions of fact or error,” and therefore holds that “the record before us is sufficient to permit our resolution of the jury selection issues which are properly before us.” Maj. op. at 260.

First, the burden to preserve portions of the record should not be placed on the defendant where the judiciary itself is responsible for destroying or losing those parts of the record in question. The majority’s demand that Rodriguez “ ‘prepare a statement of the evidence or proceedings from the best available means, including his recollection,’ ” maj. op. at 260 (quoting C.A.R. 10(c)), is completely unrealistic in the context of hundreds of lost jury questionnaires. In addition, the majority transforms a discretionary option under Colorado’s appellate rules, see C.A.R. 10(c) (“the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection”) (emphasis added), into a mandatory obligation.

Second, section 13-71-115, 6A C.R.S. (1995 Supp.), adopted after conclusion of the trial in this case, requires courts to retain all *336completed questionnaires of prospective jurors. Although the majority recognizes this, maj. op. at 259 n. 30, it makes no effort to examine the legislative history for any indications as to whether the statutory revision simply codified existing practice or legislative expectations.

In addition, the majority errs in dismissing Rodriguez’s ineffective assistance of counsel claim with regard to lost portions of the record. In Perry v. Leeke, the United States Supreme Court determined that if governmental action actually or constructively denies the assistance of counsel altogether, a showing of prejudice is not necessary to establish a violation of a defendant’s constitutional right to effective assistance of counsel. Perry v. Leeke, 488 U.S. 272, 279-80, 109 S.Ct. 594, 599-600, 102 L.Ed.2d 624 (1989); see maj. op. at 302. As that case makes clear, denial of the assistance of counsel altogether is to be evaluated with respect to individual issues or times during the course of the judicial proceedings. Id. For instance, such denial resulted when a court forbade a defendant from consulting with his attorney during an overnight recess at the conclusion of the defendant’s direct examination. See Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).

In the case before us, I do not agree with the majority’s conclusion that the judiciary’s loss of portions of the record, including lost jury questionnaires, cannot support a claim for ineffective assistance of counsel with regard to those claims that were dependent upon the lost portions of the record. The majority states:

In the present case, the state of the record did not altogether prevent Rodriguez’ counsel from assisting Rodriguez in the preparation of his appeal. On direct appeal, Rodriguez’ counsel filed a 138-page brief and an appendix listing 102 additional issues. Accordingly, we conclude that the incompleteness of the record did not amount to an actual or constructive denial of counsel for which prejudice would be presumed.

Maj. op. at 303. In my opinion, the number of pages and listed issues in Rodriguez’s brief and appendix are of no help in determining whether the judiciary’s loss of portions of the record deprived Rodriguez of effective assistance of counsel with respect 'to claims that are dependent on the missing portions of the record. I would hold that Rodriguez has a legitimate claim that the judiciary’s loss of jury questionnaires prevented him from receiving effective assistance of counsel with regard to those claims that could not be evaluated or substantiated in absence of the lost record material.

I would qualify a defendant’s burden to preserve the record for appeal where the judiciary is responsible for lost portions of the record, and remand the question of lost portions of the record to the district court for a hearing on the issue of whether the defendant has suffered prejudice as a result of the missing records. In addition, this court should consider on the merits Rodriguez’s claim that he has not received effective assistance of counsel with regard to any claims that were dependent upon the lost record material, without requiring that Rodriguez establish prejudice, rather than dismissing that claim in part because Rodriguez did receive effective assistance of counsel on certain unrelated claims. For these reasons, I respectfully dissent from parts VI(A), VI(C), and XVIII of the majority’s opinion, including its disposition of issues 53, 54, 58, 65, and 81.

F.

Addressing Rodriguez’s issue sixty-one, the majority concedes that his allegations, if true, would establish a violation of the Uniform Jury Selection and Service Act, §§ 13-71-101 to -122, 6A C.R.S. (1987), but dismisses the need for a hearing by framing the claims as nonconstitutional issues. Maj. op. at 262-63. Because fundamental errors in the jury selection process can implicate constitutional norms such as due process concerns or the right to a jury trial, a hearing is necessary to determine whether the alleged errors indeed occurred. See Crim.P. 35(c)(3). I would remand issue sixty-one to the district court for a hearing on the merits of Rodriguez’s Uniform Jury Selection and Service Act claim. For this reason, I respectfully dissent from the majority’s disposi*337tion of issue sixty-one, contained within part IV(D) of the majority’s opinion.

G.

The majority engages in a cursory analysis of issue thirty-eight, without any specific references to the record or elaboration. Maj. op. at 267. The majority characterizes issue thirty-eight as a due process claim.- Maj. op. at 267. However, Rodriguez’s issue thirty-eight extended beyond due process questions:

THE RESTRICTIONS ON DEFENSE COUNSEL’S CROSS-EXAMINATION AND IMPEACHMENT OF PATRICIA THOMAS VIOLATED THE CONFRONTATION, CRUEL AND UNUSUAL PUNISHMENT AND DUE PROCESS CLAUSES OF THE FEDERAL AND COLORADO CONSTITUTIONS.

Appendix A to maj. op. at 307. Within issue thirty-eight, Rodriguez raised several discrete contentions, including that:

The trial court demonstrated a complete misunderstanding of the “collateral impeachment” rule. The court repeatedly refused to allow defense counsel to ask questions which went directly to the bias of the witness, [and] to her interests and motives in testifying as she did....
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... The numerous discovery violations by the state went totally unsanctioned by 'the court, to the enormous prejudice to Mr. Rodriguez’ fundamental rights. The court’s refusal to grant a continuance at any time, or even to delay the cross examination of Ms. Thomas after the latest of these many intentional attempts by the state to subvert the truth-seeking function of the trial [through alleged discovery violations], or even to grant Mr. Rodriguez any relief or to sanction the state when its misconduct and lies became evident during the examination of Ms. Thomas, fully protected the state’s efforts....

Appellant/Cross-Appellee’s Opening Brief at 145-46, People v. Rodriguez (No. 91SA112) (March 9, 1995). Rather than engage in any discussion of Rodriguez’s claims, the majority simply notes the principle that a trial court has discretion to determine the scope and limits of cross-examination and summarily concludes that its review of the record discloses no abuse of trial discretion. Maj. op. at 267. Because issue thirty-eight requires a substantive discussion on the merits of the claim, I respectfully dissent from issue thirty-eight in part VII(A)(2) of the majority opinion.

H.

In issue thirty-one, Rodriguez contends that the district court erred in refusing to grant a continuance so that the defense could secure the testimony of Sam Cruz. Cruz allegedly would have testified that the knife admitted into evidence was given by him to Patricia Thomas as a birthday present. See maj. op. at 268. One of Rodriguez’s main lines of defense was that David Martinez, the boyfriend of Patricia Thomas, was the actual killer of Lorraine Martelli. Evidence that Thomas owned the murder weapon could have cast significant doubt on Thomas’s credibility and the jury’s determination regarding who wielded the knife during the murder. Furthermore, in view of the multiple stab wounds and vicious nature of this killing, the jury’s finding that Rodriguez was the killer could in turn have been highly prejudicial during the sentencing phase of this case.

The majority reasons that there was no abuse of discretion because Mary Compos had already testified that she saw Thomas in possession of a knife that Thomas received as a birthday present, that Compos’ testimony indicated that the birthday knife had the same brand or model marking as the murder knife, and that Cruz’ testimony would therefore have been cumulative. Maj. op. at 268-69. However, there is a substantial difference between testimony that Thomas possessed a knife with the same general brand or model marking and testimony that Thomas possessed the knife that was used in the murder. Here, the murder weapon was uniquely characterized by a defective locking mechanism. See r. at v.31, pp. 48-51. Although Compos testified that the birthday knife and the murder knife had the same brand or model markings, only Cruz could potentially have testified that the knife given *338to Thomas for her birthday had the same defective locking mechanism, thereby providing strong evidence that Thomas’s knife was the murder weapon. Cruz’s potential testimony cannot be considered cumulative evidence, especially in view of the crucial nature of Thomas’ testimony for the prosecution, and the majority is disingenuous in arguing that Rodriguez has not shown that the continuance denial “prevented him from effectively impeaching Thomas.” Maj. op. at 268.17 Because Cruz’s testimony may not have been cumulative, I would remand issue thirty-one for an evidentiary hearing regarding the potential testimony and the district court’s decision to deny the motion for continuance. For this reason, I respectfully dissent from the majority’s disposition of issue thirty-one, contained within part VII(C) of the majority opinion.

III.

This dissent does not address the majority’s opinion comprehensively. I have singled out issues that appear to be most salient and have concluded that the death penalty imposed on Frank D. Rodriguez should be vacated and the case remanded for imposition of a sentence to life imprisonment for reasons explained in part I of this opinion. At a minimum, the majority’s rejection of this conclusion should still require remand to the district court for resolution of the issues discussed in part II of this opinion. For these reasons, I respectfully dissent.

. Even if I could accept the contrary conclusion reached by the majority — and I cannot — I would require a remand to the district court for further hearings, findings, and conclusions. See infra part II.

. The penalty phase instruction defining the felony murder aggravating factor read:

The Defendant committed a class one, class two, or class three felony and in the course of or in the furtherance of the felony, he intentionally caused the death of a person other than one of the participants.

R. at v. IV, p. 774.

. The majority also admits that the evidence supporting the vacated convictions for conspiracy to commit second-degree kidnapping and conspiracy to commit first-degree aggravated motor vehicle theft also supports another aggravating factor found in this case, i.e., "intentionally killing a person in furtherance of an agreement to kill, § 16 — 11—103(6)(e).” Maj. op. at 284. Although I see no need to address this contention in view of my resolution of the implications stemming from the vacated felony murder conviction, the majority’s assertion provides additional support for my position today.

. The references to numbered issues in this dissenting opinion are to the issues presented by Rodriguez for appellate review as set forth and numbered in Appendix A to the majority opinion. See Appendix A to maj. op. at 303-20. For-the sake of uniformity and simplicity, series of three or more numbers will not be spelled out.

. Section 16-11-103(6)(g), 8A C.R.S. (1986), sets forth the following aggravating factor:

The defendant committed a class 1, 2, or 3 felony and, in the course of or in furtherance of such or immediate flight therefrom, he intentionally caused the death of a person other than one of the participants; ...

. See also Johnson v. Mississippi, 486 U.S. 578, 581, 108 S.Ct. 1981, 1984, 100 L.Ed.2d 575 (1988) ("The sole evidence supporting the aggravating circumstance that petitioner had been ‘previously convicted of a felony involving the use or threat of violence to the person of another' consisted of an authenticated copy of petitioner’s commitment to Elmira Reception Center in 1963 following his conviction in Monroe County, New York, for the crime of second-degree assault with intent to commit first-degree rape,” a conviction that had been reversed on appeal.); Zant v. Stephens, 462 U.S. 862, 873, 103 S.Ct. 2733, 2740-41, 77 L.Ed.2d 235 (1983) (describing how "[t]he [Georgia Supreme Court] noted that a different result might be reached if the failed circumstance had been supported by evidence not otherwise admissible”); id. at 886, 103 S.Ct. at 2747 ("The underlying evidence is nevertheless fully admissible [despite invalidation of the aggravating circumstance] at the sentencing phase.”); id. at 886, 103 S.Ct. at 2747 ("This case involves a statutory aggravating circumstance, invalidated by the State Supreme Court on grounds of vagueness, whose terms plausibly described aspects of the defendant's background that were properly before the jury and whose accuracy was unchallenged."); id. at 887 n. 24, 103 S.Ct. at 2748 n. 24 (“Petitioner acknowledges that, if an invalid statutory aggravating circumstance were supported by material evidence not properly before the jury, a different case would be presented. We need not decide in this case whether the death sentence would be impaired in other cir*326cumstances, for example, if the jury’s finding of an aggravating circumstance relied on materially inaccurate or misleading information.”) (citations omitted).

. On the first review by the United States Supreme Court, the Court remanded the case to the Georgia Supreme Court for an explanation of the "premises” and "rationale” for a rule that invalidation of one aggravating circumstance would not render a death sentence constitutionally infirm. Zant v. Stephens, 456 U.S. 410, 414-15, 416-17, 102 S.Ct. 1856, 1857-58, 1858-59, 72 L.Ed.2d 222 (1982). The Court reasoned:

It may be that implicit in the rule is a determination that multiple findings of statutory aggravating circumstances are superfluous, or a determination that the reviewing court may assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions.

Id. at 415, 102 S.Ct. at 1858.

. This analysis is not necessarily applicable to the amendments to Colorado’s death penalty statute. See § 16-11-103, 8A C.R.S. (1995 Supp.).

. Issue thirteen reads:

THE ILLEGALITY OF THE FIRST DEGREE MURDER AND TWO CONSPIRACY CONVICTIONS REQUIRES THAT THE DEATH SENTENCE BASED UPON THEM BE VACATED. THE MOTOR VEHICLE THEFT AND "CRIMES OF VIOLENCE" CONVICTIONS, AND THE DEATH SENTENCE BASED ON THEM, ARE ALSO ILLEGAL SINCE THEY ARE BASED ON THE MURDER CONVICTION.

Appendix A to maj. op. at 305.

. Although this court acknowledged Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), in People v. Davis, 794 P.2d 159, 178-79 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991), we refrained from engaging in appellate reweighing, Davis, 794 P.2d at 179. At this point, with the benefit of both the remand in Clemons, 593 So.2d 1004 (Miss. 1992), and our own statutory death penalty requirement that jurors engage in the weighing of aggravating and mitigating circumstances, § 16-1 l-103(2)(a)(II), 8A C.R.S. (1986), we should explicitly reject the notion that appellate courts are equipped to engage in a weighing process that is the statutory province of the jury.

. The majority seems to reason that the errors were harmless, although it does not use that terra. See maj. op. at 284-86.

. In addition to the above-described infirmities in the jury’s findings of certain aggravating factors, the reliability of the jury's aggravating factors determinations is weakened further by the trial court’s invalid complicity instruction. The majority agrees with Rodriguez that the trial court erred in instructing the jury on "complicity” that ”[t]he defendant must have had knowledge that the other person intended to commit all or part of the crime.” Maj. op. at 276, 277 (emphasis added). Rodriguez points out that because of this erroneous instruction "the jury could convict Rodriguez of the first-degree murder of Lorraine Martelli even if he only agreed to her assault,” maj. op. at 276, but the majority dismisses the instructional mistake as harmless error, maj. op. at 276 n. 47, 277.

In support of its harmless error conclusion, the majority argues that the first-degree murder conviction is supported by the record but points to (1) the testimony of Patricia Thomas, which was contested, and (2) blood evidence, which casts no light on whether Rodriguez had knowledge regarding the extent of an alleged co-participant's murderous intentions. Maj. op. at 276-277. The majority's dismissal of the complicity mistake as harmless error is surprising considering the prosecution’s reliance on that instruction during closing arguments:

[L]ook at Instruction Number 12. It's a very important instruction. It has to do with the legal concept of complicity, because even if you somehow believe David Martinez, not [Rodriguez], deliberately stabbed Lorraine Martelli to death, [Rodriguez] is still guilty of first degree murder after deliberation. He is guilty as an accomplice and Instruction Number 12 makes that clear to you.

R. at v. XXXI, p. 24. In my opinion, this reliance alone casts in doubt the majority's disposition of issues 130 and 131.

The majority finds further support by reasoning that "in returning a guilty verdict on the charge of conspiracy to commit first-degree murder after deliberation, the jury necessarily found that Rodriguez specifically intended to promote or facilitate the first-degree murder of Lorraine Martelli.” Maj. op. at 277. However, the majority's reasoning in this regard is circular. If the jury was allowed to convict Rodriguez of first-degree murder based on a complicity instruction that hypothetically allowed the conviction to be founded on Rodriguez’s mere knowledge of an alleged co-perpetrator’s assaultive, but not murderous, intentions, the conspiracy to commit murder conviction could have been based on the potentially improper first-degree murder conviction and a reviewing court has no way of assuming that the jury necessarily found specific murderous intent on Rodriguez's part rather than simple knowledge of "part" of an alleged co-conspirator’s intentions. See R. at v. Ill, pp. 572-73, 581 (applicable jury instructions).

. Specifically, Rodriguez’s issue one reads:

THE DISTRICT COURT’S RULING THAT MR. RODRIGUEZ HAD ALREADY HAD APPELLATE REVIEW OF MANY CLAIMS IN HIS POSTCONVICTION MOTIONS WAS ERRONEOUS.

Appendix A to maj. op. at 303.

. Rodriguez's issue three reads:

THE DISTRICT COURT’S RULING THAT THIS COURT DECIDED SEVERAL OF MR. RODRIGUEZ' CLAIMS AGAINST HIM IN PEOPLE V. TENNESON, 788 P.2d 786 (Colo. 1990), AND PEOPLE V. DAVIS, 794 P.2d 159 (Colo.1990), IS INCORRECT.

Appendix A to maj. op. at 304.

. Rodriguez's issue forty-one reads:

THE COURT'S RULING THAT SEVERAL CLAIMS CONCERNED ONLY "INADEQUATE FOUNDATION FOR EXHIBITS" AND THUS THAT THEY WERE NOT "AVAILABLE" WAS ERROR.

Appendix A to maj. op. at 307.

. I agree with the majority that issues 120, 121, 122, 125, 126, 127, and 128 are rendered moot by this court's affirmance of the trial court’s vacation of the predicate offenses. Maj. op. at 254-55.

. In contrast, I agree with the majority’s analysis and disposition of the second part of issue thirty-one, the hearsay question. See iraj. op. at 268-69.