dissenting.
I respectfully dissent.
In the direct appeal of this matter, 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), a four to three majority sustained the sentence. The question of ineffective assistance of counsel was not before the court. Further, the decision to affirm relied in substantial measure upon the failure of counsel properly to preserve error in the lower trial court. Thus, the claimed errors were reviewed under the plain error standard and, as noted by the dissent, even though no one of the numerous irregularities in and of itself may have justified reversal, nevertheless, in the aggregate the errors so affect the substantial rights of the accused as to require reversal. Additionally, and essential to this appeal is the failure of trial counsel to investigate, discover, and present mitigating factors of substantial import which were not before the supreme court on the direct appeal.
The validity of a convicted defendant’s claim that counsel’s assistance was so defective as to require the setting aside of a death sentence is measured by a two-prong test. First, it must be determined whether counsel’s performance was deficient and, second, whether the deficient performance was so prejudicial that it deprived defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
However, “although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceedings whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular pro*865ceedings is unreliable because of a breakdown in the adversarial process that our system counts on to produce such results.” Strickland v. Washington, supra.
A death sentence is qualitatively different from any other sentence. “Death, in its finality, differs more from life imprisonment than a one hundred year prison term differs from only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). This requirement of reliability which is grounded in constitutional doctrine mandates a careful scrutiny in the review of any claim of error. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).
In the death penalty phase of this case, trial counsel, even though experienced in the area of death penalty cases, allowed himself to be so antagonistic to the defendant that he lost sight of his duty to make reasonable investigations or reasonable decisions that particular investigations were unnecessary. See Strickland v. Washington, supra. Further, because of the antagonism engendered by defendant’s undermining of counsel’s trial strategy, it is not seriously disputed that the proportional punishment theory, weak at best under the facts of this case, was not truly viable in the penalty phase.
Trial counsel candidly admitted at the Crim.P. 35(c) hearing that:
It is my belief under the Strickland v. Washington that I failed to perceive Mr. Davis’ change and that I was not prepared to counter his change. Therefore, I was ineffective in presenting mitigation, the so-called standard mitigation that we have all talked about. The thrust of mitigation was equitable and when that was taken from me, I was unprepared to go forward with regular mitigation, which may have been effective in this case.
Further, trial counsel’s ineffective assistance in preparation and presentation of the penalty phase was testified to by three experts in the area. Their testimony was unrebutted.
Hence, the critical question before this court is whether there is a reasonable probability that, but for the deficiency in counsel’s preparation and presentation of discoverable mitigating factors, the death sentence verdict would have been different. In other words, did the breakdown in trial counsel’s adversarial representation cause a loss of fundamental fairness? I conclude that it did.
The main thrust of the ineffective assistance claim here is that trial counsel failed in his duty to investigate and develop evidence tending to humanize the defendant and further failed to bring before the jury substantial mitigating factors both statutory and nonstatutory which could with reasonable probability have raised a sufficient doubt in the mind of at least one of the jurors as to the appropriateness of imposing the penalty of death. And, the Strickland court stated reasonable probability is not measured by whether it is more probable than not, but rather it is to be measured as “a probability sufficient to undermine confidence in the outcome.”
Here, trial counsel, after being frustrated by the defendant’s testimony in the guilty phase, failed to make a closing statement. Although the decision to waive final argument in the guilt phase may be a proper tactical decision if coordinated with an effective presentation of mitigation, such was not the case here. Rather, in the penalty phase, the sole evidence introduced was that there had been no reported trouble caused by defendant while a prisoner awaiting trial and testimony from the jailhouse chaplin that the death penalty was never an appropriate sentence. In my view, the value of the latter testimony argued to a death-penalty-qualified jury is, at best, speculative.
But, of more substantial concern to me is the fact that, because of trial counsel’s failure to investigate adequately defendant’s background, the jury was neither informed of his troubled childhood, which included probable sexual abuse by an older *866sibling, nor of the fact that when he was separated from the Marines he was diagnosed as having an “emotional and unstable personality with schizoid trends” that was deemed to be permanent.
Nor did trial counsel develop defendant’s history of chronic alcohol abuse. Although the decision not to use the defense of alcoholism in the guilt phase may well have been an appropriate tactical decision, I can surmise no such reason here not to at least place before the jury the serious nature of defendant’s alcoholism as a disease and as a statutory mitigator in the death penalty phase.
Additionally, in the death penalty phase of the case, trial counsel failed to inform the jury of the fact that whenever defendant was placed within penitentiaries or state hospitals, he immediately became compliant, peaceful, and a non-dangerous individual. (The facts of defendant’s prior criminal record had been fully developed in the guilt phase so there was little danger of opening closed doors). Cf. Strickland v. Washington, supra (contrary fact pattern). To disregard this factor when jurors must determine whether to impose the death penalty or to commit defendant to imprisonment appears unsustainable as a tactical decision. See Woodson v. North Carolina, supra.
If potentially beneficial mitigating evidence exists and counsel does not present it, then counsel precludes the jurors from considering mitigating factors. Hence, in the failure to discover and present such evidence, counsel creates the risk that the death penalty will be imposed in spite of factors that might have resulted in a less severe penalty. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Under Lockett, such a risk violates the Eighth and Fourteenth Amendments.
The scope of the presentation that counsel could have made is at least as important as that which does appear in the record. And, clearly, a defendant who introduces mitigating evidence stands a better chance of receiving a life sentence instead of death than does a defendant who does not introduce such evidence. See G. Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 239 (May 1983), (cited by Justice O’Connor in Washington v. Strickland, supra).
As noted by Professor Goodpaster, an effective counsel has a duty to bring to bear such skill and knowledge as would render the trial a reliable adversary testing process. Hence, in a capital case in which the evidence of guilt is overwhelming, the penalty phase is the only real trial the defense receives. Thus, effective assistance of counsel must be geared toward avoiding the imposition of death.
It is not my desire to measure trial counsel’s representation by the wisdom of hindsight, nevertheless, here, when his failure to present mitigating evidence of substantial statutory and non-statutory nature to the jurors is considered together with his expressed disgust for his client, I cannot in good conscience reject defendant’s claim of ineffective assistance of counsel.
Counsel’s animosity towards Davis is illustrated well by his statement to the jury:
There are times in this case that I hate Gary Davis, I’m going to tell you that, and I think that you know it. There are times I hate the things that he has done, and I have told him, and I tell you there is no excuse for it. There is no excuse for it whatsoever....
Some of the times I hate Gary Davis because of what he has done to me.
Counsel’s disdain for his client is so palpable in this statement that I cannot dismiss it as a mere tactical ploy.
Thus, reading the record here compels me to conclude that, but for the ineffective assistance of counsel at the penalty phase there is a reasonable probability that the result might have been different. Accordingly, I would reverse and remand to the trial court for further proceedings as permitted by § 16-ll-103(7)(b), C.R.S. (1992 Cum.Supp.). Because the matter is not before us and has not been briefed, I render no opinion whether a reversal because of ineffective assistance of counsel pre-*867eludes retrial of the penalty phase under that statute.