concurring and dissenting.
I concur with the Court that petitioner Stephen Howard Oken’s convictions for first degree murder, first degree *684sexual offense and use of a handgun in the commission of a crime of violence should be affirmed. I also agree with its reversal, for insufficient evidence, of his burglary conviction. For the reasons that follow, however, I dissent from the Court’s judgment as it relates to the sentencing proceeding.
Maryland Code (1957, 1987 Repl.Vol.) Art. 27, § 413(k)(2), the statute in effect when the murder of which the petitioner was convicted and for which he was sentenced to death, provided:
If the jury, within a reasonable time, is not able to agree as to whether a sentence of death shall be imposed, the court may not impose a sentence of death.
The petitioner requested that the jury be instructed as follows:
I advise you that if for any reason you are unable within a reasonable period of time to reach a unanimous judgment as to the balancing required by Section_of the form, I will sentence Stephen H. Oken to life imprisonment.1
The court refused to do so.2 Instead, the court walked the jury through the sentencing form, pointing out the *685issues which the jury was required to resolve unanimously, as well as those which it was not, as a prerequisite to proceeding from one section of the form to the next. Toward the end of the instructions, for example, the court instructed the jury that its determination of whether the aggravating circumstance alleged by the State to exist outweighed the mitigating circumstances the jury might *686find must be unanimous; “[ujntil all 12 of you agree on whether the answer is ‘Yes’ or ‘No’, do not go onto Section V.” It then advised the jury:
Before arriving at your verdict, you are to consider all of the evidence of the case. You are to consider all of the evidence that is favorable to the defendant as well as all of the evidence which is unfavorable to him. Moreover, your verdict, whatever it may be, must be the unanimous verdict of all 12 members of the jury.
Now, as I said, your verdict has to be unanimous, that is, all of you must agree upon the verdict returned by your foreman. If any one of you disagrees with the findings of your fellow jurors, it is your duty to maintain your position until convinced that you are incorrect. You should not agree to a verdict merely because the majority of your fellow jurors vote in a certain way or merely to assume unanimity. By this, I do not mean that you should not consider and weigh the views and opinions of your fellow jurors with regard to the evidence you heard in making up your mind, arriving at your own judgment. You should listen to and consider the views and opinions of your fellow jurors, but after you have done this and arrived at a verdict in your own mind, you should not recede from or abandon your independent judgment simply for the purpose of reaching a compromised verdict. (Emphasis added)[3]
The petitioner argues that, by so instructing the jury, the trial court “indicated that a unanimous verdict was the sole method of terminating the deliberations” and, therefore, that the court’s refusal to propound his proposed instruction was reversible error. This is so, he says, because of the “recent trend” of this Court to require that the jury be instructed as to all possible outcomes. He cites, e.g., Hook *687v. State, 315 Md. 25, 553 A.2d 233 (1989); State v. Hutchinson, 287 Md. 198, 411 A.2d 1035 (1980). Relying on Burnette v. State, 280 Md. 88, 371 A.2d 663 (1977), he maintains that “telling a jury (as in the instant case) that unanimity is the only way to end the deliberations is very likely to have a coercive impact.” The petitioner also relies upon cases from other jurisdictions. See, e.g., Whalen v. State, 492 A.2d 552 (Del.1985); State v. Loyd, 459 So.2d 498 (La.1984); State v. Williams, 392 So.2d 619 (La.1980); State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988); State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987).
The majority counters, in Part II of its opinion, by pointing out that, in Calhoun v. State, 297 Md. 563, 593-95, 468 A.2d 45, 58-60 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984), “this Court has already rejected the notion that a trial judge must instruct the jurors in a capital sentencing proceeding prior to its deliberation that if they cannot agree on sentencing within a reasonable time a life sentence would be imposed.” [Op. at 642-43.] In that case, we interpreted the 1982 version of § 413(k)(2) as an instruction to the trial court, to whom, we held, was entrusted, as in traditional trials, the determination when deliberations have continued for a reasonable time and, hence, whether a jury is truly hung, i.e., in the context of a sentencing proceeding, unable to arrive at a decision as to the appropriate sentence. Calhoun was most recently followed in Booth v. State, 327 Md. 142, 608 A.2d 162 (1992).
Booth involved a similar, though not identical, issue. There, the petitioner’s argument concerning the inappropriateness of refusing to instruct the jury consistent with former § 413(k)(2) was coupled with his misgivings concerning the coercive impact of an Allen type charge, given in supplemental instructions, to break an announced jury deadlock on a threshold determination, which, by rule and statute, was required to be made unanimously. The majority reiterated the conclusion previously reached in Calhoun and held that whether the jury was hung on the threshold issue, in that case, principalship, and whether mistrial *688should have been declared, and a life sentence imposed, were issues for the trial court alone to decide. Id. at 157, 608 A.2d at 169. The majority also held that the modified Allen charge that the trial court gave over the petitioner’s objection was not coercive and was not rendered so simply because the proceeding involved a potential capital sentencing. Id. at 159, 608 A.2d at 170.
I dissented in that case. For essentially the same reasons, I dissent in this case as well.
I acknowledge that Calhoun stands for the proposition that when to declare a mistrial is a matter addressed to the trial court and, further, the jury need not be told of the effect of its failure to agree. Nevertheless, as I pointed out in Booth,
[t]his does not, and can not mean, however, that § 413(k)(2) has no role to play in connection with the various determinations that must be made during the sentencing proceeding. Simply because § 413(k)(2) is addressed to the trial court, and not the jury, and the jury, therefore, is never instructed as to its content or operation, does not mean that the sentencing proceeding may be treated as if unanimity were a prerequisite of a valid outcome; that up to, and until the trial court finally determines that the jury is hung, the jury not only need not be told of the effect of a failure to agree but actually may be misled into believing that it must agree one way or the other.
The jury’s inability to agree unanimously, one way or the other, as to sentencing in a capital case tried in this State, former § 413(k)(2) makes clear, necessarily results in imposition of a life sentence. To treat the sentencing procedure, including its component parts, as if unanimity were an absolute prerequisite, notwithstanding former § 413(k)(2), and to so instruct the jury is actively to mislead it____ [W]hile unanimity is required for the jury to render a verdict, the law recognizes and thus contemplates that the jury may not render a verdict. Thus, although by its terms, [a section] of the sentencing form *689seeks unanimity, in point of fact, unanimity is not absolutely required. That section is only a component part of the verdict; therefore, to the extent that a reasonable time for deliberations has passed, ... the lack of unanimity must result in the imposition of a life sentence. Giving a modified Allen charge, the only purpose of which is to break a deadlock, is a clear statement to the jury that unanimity must be achieved. That is clearly not the case.
327 Md. at 210-211, 608 A.2d at 195-96.
I continue to adhere to those views. In this case, the modified Allen charge was given immediately after the reiteration that a verdict must be unanimous, thus conveying the very clear message to the jury that it must agree unanimously. Here, just as in Booth, that not only was totally inaccurate, it was, and is, actually misleading.
. Petitioner’s jury instruction was apparently based on the 1982 version of Maryland Code (1957) Art. 27, § 413(k)(2), which provided:
If the jury, within a reasonable time, is not able to agree as to sentence, the court shall dismiss the jury and impose a sentence of imprisonment for life.
The difference between the 1982 version and the 1987 version is undoubtedly due to the passage of Chapter 237, Laws 1987, effective July 1, 1987, which added a sentencing option, life imprisonment without the possibility of parole, to be considered with death and life with possibility of parole, See Md.Code (1957, 1987 Repl.Vol.) Art. 27, § 413(e)(4). The language change makes clear that the only restriction imposed on the judge when a sentencing jury cannot agree as to death, is that he or she not sentence the defendant to death.
. The petitioner asserts that the issue is preserved for appellate review. Although it does not appear that it was recorded, he suggests, by reference to a chambers’ conference, that the issue was raised and discussed there. His objection was preserved, he says, by virtue of the court’s statement that all issues raised at the chambers’ conference *685were preserved. The State does not dispute that the issue is preserved. It maintains, rather, that the proposed instruction properly was rejected because it "in fact did not conform to § 413(k)(2), and indeed was affirmatively misleading.” It also believes, for the reasons stated by the majority, see infra, that the issue has previously been resolved against the petitioner.
The non-conformity to § 413(k)(2) of the proposed instruction is reflected, according to the State, in the fact that it is premised upon the law that existed prior to the Legislature’s addition of life imprisonment without possibility of parole as an additional sentencing option for the jury. Because, in this case, the jury was instructed as to three, rather than two, sentencing options, had it been unable unanimously to agree that death should not be imposed, deliberations to choose between simple life and life without parole would still have been required. It is the reference to only a sentence of imprisonment for life, presumably, life imprisonment with possibility of parole, which the State believes renders the instruction not only incorrect, but, misleading. It cites Henry v. State, 324 Md. 204, 248-49, 252, 596 A.2d 1024, 1046 (1991) and Hunt v. State, 321 Md. 387, 405, 583 A.2d 218, 227 (1990), cert. denied, sub nom., Hunt v. Maryland, — U.S. -, 112 S.Ct. 117, 116 L.Ed.2d 86 (1991) as standing for that proposition.
I continue to be of the view that a trial judge’s role in propounding jury instructions encompasses more than reviewing the proposed instructions for error or to determine whether they are misleading. See Clark v. State, 80 Md.App. 405, 411-15, 564 A.2d 90, 94 (1989). See also Glover v. State, 88 Md.App. 393, 398, 594 A.2d 1224, 1227 (1991). When proposed instructions address issues properly to be decided by the jury, even though they are not totally accurate, the court nevertheless is required to instruct the jury on those issues even if it may have to make changes to ensure that the instructions it does give are fully reflective of the law. Criminal trials, and especially capital sentencing proceedings, are not games. Thus, even though the proposed instruction in this case was technically erroneous—although it addressed only the court’s lack of power to impose a death sentence when the jury cannot agree unanimously that it is the proper sentence and did not fully take account of all of the sentencing options available to the jury—I fail to see how it was misleading. It certainly was not incapable of correction so as to provide the jury with both a complete and accurate picture of the situation. In my view, technical inaccuracy of the proposed instruction did not relieve the court of its obligation accurately to instruct the jury on so critical a point.
. The second paragraph of the questioned portions of the court's instruction is a modified Allen charge, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), Burnette v. State, 280 Md. 88, 371 A.2d 663 (1977), the purpose of which is to break any potential deadlock in the jurors’ deliberations.