specially concurring:
I specially concur in the judgment. In Part IV the court relies on People v. Tenneson, 788 P.2d 786, 796 (Colo.1990), and holds that the trial court erred in failing to instruct the jury that, in the fourth phase of the deliberative process on punishment, the jurors must unanimously agree that death is the appropriate punishment beyond a reasonable doubt before a death verdict can be returned. I agree with this disposition. Because this error requires the reversal of the death sentence, I see no need to address either the trial court’s disqualification of three jurors because of their beliefs concerning capital punishment (Part IIC), or the trial court’s refusal to disqualify several jurors because of their views supportive of capital punishment (Part IID).
*180The trial court’s rulings on these matters raise close and difficult questions. Even if the trial court’s rulings were to be found erroneous, however, they would not affect the guilt phase of the trial. Rather, the proper remedy would be to reverse the death sentence. Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). In my view, this court’s reliance on Tenneson to reverse the death sentence dispenses with any need to consider the correctness of the trial court’s rulings on these matters. I accordingly do not join Parts IIC and IID of the court’s opinion.
In joining Part IV of the court’s opinion, I continue to disagree with the Tenneson formulation of the “proof beyond a reasonable doubt” standard with respect to the third phase of the deliberation proven, namely, that the ■ prosecution must prove beyond a reasonable doubt that mitigating factors do not outweigh proven aggravating factors. I disagree with such formulation because it permits the jury to return a death sentence predicated on a state of evidentiary equipoise. Irrespective of its propriety under federal constitutional standards, see Walton v. Arizona, — U.S. -, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (plurality opinion), I view such formulation as “irreconcilable with the heightened reliability and concomitant certainty required for a constitutionally valid death verdict” and thus violative of due process of law and the prohibition against cruel and unusual punishment under the Colorado Constitution. People v. Tenneson, 788 P.2d at 805 (Quinn, J., dissenting); see also People v. Davis, 794 P.2d 159, 218-19 (Colo.1990) (Quinn, J., dissenting). In the instant case, however, the trial court instructed the jury, correctly I believe, that “[t]he burden is on the prosecution to prove beyond a reasonable doubt that the aggravating factor or factors outweigh any and all of the mitigating factor or factors" and that the jurors must unanimously find beyond a reasonable doubt “that the aggravating factor or factors outweigh the mitigating factor or factors” before proceeding to the final step of the deliberative process.
With the above qualifications, I specially concur in the judgment.