dissenting.
I dissent for the reasons stated in State v. Moen, 309 Or 45, 102-04, 786 P2d 111 (1990) (Fadeley, J., dissenting).
The United States Supreme Court’s decision in Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989), cast doubt on the Oregon death penalty scheme *45because the Oregon statutes were primarily copied from the Texas procedure and laws that Penry held to be constitutionally inadequate. Thereafter, in Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989), that court vacated an Oregon death penalty sentence, apparently because of similar inadequacy of the pre-1989 Oregon statute that provided the method whereby an Oregon jury determined the sentence to be imposed.
The pre-1989 statute was proposed by the initiative process and adopted by a popular vote in 1984. On the United States Supreme Court’s remand of Wagner v. Oregon to this court, the majority of the Oregon Supreme Court reacted to try to “save” the initiated statute from its apparent constitutional infirmity by judicially adding a 100-word amendment to it. See State v. Moen, supra, 309 Or at 102-04 (dissenting opinion). I continue to dissent from the decision of the majority to make a substantial, significant, and after-the-fact addition to the 1984 statute that the people, by their vote adopting the statute, did not include.
I also dissent in this particular case on the further ground expressed by Unis, J., in his dissent that upholds the traditional rule requiring proof beyond a reasonable doubt. A death penalty case is no place to experiment with new, different, and ambiguous definitions of reasonable doubt that, in the minds of the jurors, may well reduce the level of proof required for conviction. The last sentence of the instruction, timely objected to by defendant, warned the jurors to be skeptical of whether the doubts that they might experience during deliberations were “reasonable” doubts by arguing “because everything depending on moral evidence is open to some possible * * * doubt.”