(concurring and dissenting with comment):
This concurring and dissenting opinion is written for the purpose of directing attention to what I consider to be fatal flaws in our statute as it relates to the death penalty. These flaws are fatal not only because of Constitutional infirmity, but they are fatal in a grimmer sense. The statute is virtually a mandatory death law. In addition, in my view it allows imposition of the capital sanction in a fashion which has heretofore been styled as “freakish,” and without direction or limitation. Again, in my view, the statute does not provide proper guidelines “to minimize the risk of wholly arbitrary and capricious action.”
Additionally, I wish to point out what I consider to be extreme anomalies in the enactments which control first and second degree murder. These are also constitutionally infirm. I concur in the conviction for homicide and in the remand for imposition of a life sentence, for the reasons stated. I respectfully dissent from the opinion remaining, with comments. All statutory references are to U.C.A.1953, as enacted 1973.
The judgment of the trial court imposing the death sentence is properly reversed, and the case remanded to the trial court to impose a sentence of life imprisonment. This action can be sustained upon alternative grounds, viz., there was prejudicial error in the sentencing proceeding, § 76-3-207(3); and the statutory provisions imposing the sentence of death are unconstitutional, § 76-3-207(4). This opinion will address the constitutional infirmities of the statutory scheme for imposition of the death penalty. The specific errors, which were prejudicial in the sentencing proceeding, are well treated and managed in the opinion of Mr. Justice Wilkins.
The Utah statutory plan violates the Eighth and Fourteenth Amendments to the United States Constitution in that there are “inadequate statutory guidelines to instruct the jury on the proper application of the mitigating and aggravating circumstances provided by law, thus leaving the jury with untrammeled discretion to impose or withhold the death penalty. Secondly, the death sentencing procedure inhibits perceptive judicial review.
To understand the constitutional infirmities in the statute, a review of the Supreme Court decisions since Furman v. Georgia1 is beneficial. In Gregg v. Georgia2 the court in commenting on the underlying principle of Furman, stated:
Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.3
*277In testing the constitutionality, the ultimate issue is whether the sentencing procedures create a substantial risk the death penalty will be imposed in an arbitrary and capricious manner. In a series of five cases, the Supreme Court examined five diverse statutory plans for imposition of the death penalty. Three were held constitutional,4 and two were found not to be constitutionally tolerable responses to Furman’s rejection of unbridled jury discretion in the imposition of capital sentences.5 From these five opinions, there are certain comments and observations which indicate the constitutional perimeters, within which the exercise of discretion in these challenged sentencing procedures can be made.
In Gregg, the court observed, under the Georgia statute, the jury was not required to find any mitigating circumstances in order to make a recommendation of mercy that was binding on the trial court. However, the jury must find a statutory aggravating circumstance before recommending a sentence of death.
In Gregg, the court explained it was possible to construct capital-sentencing systems capable of meeting Furman’s constitutional concerns. One aspect to fulfill the requirements is to devise standards to guide a capital jury’s sentencing deliberations. The court cited the standards formulated by the drafters of the Model Penal .Code, A.L.I., Model Penal Code § 201.6 (Tent. Draft No. 9, 1959) to illustrate it was possible to point to the main circumstances of aggravation and mitigation as a means of providing guidance to the sentencing authority. Doing so would reduce the likelihood óf the imposition of an arbitrary or capricious sentence.
The court stated:
Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.
In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.6
The admonition of the court is significant in assessing the Utah procedure:
We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis. . . . 7
In Proffitt v. Florida,8 the procedures to ensure a sensible appellate review were noted. The trial court, after receiving an advisory sentence from the jury (which determines whether the aggravating circumstances outweigh the mitigating), must justify the imposition of the death penalty with written findings. Upon appellate review, the evidence of the aggravating and mitigating circumstances is reviewed and re-weighed to determine independently whether imposition of the ultimate penalty is warranted. In Proffitt it was urged the aggravating circumstances cannot be *278weighed against the mitigating without the assignment of numerical weights by the legislature to each factor.
In response, the court said Furman was satisfied when the sentencing authority’s discretion is guided and channeled by specific factors, thus eliminating arbitrariness and capriciousness. The trial court’s sentencing discretion is guided and channeled by a system which focuses on the circumstances of each individual homicide. Thereafter, the Florida Supreme Court reviews each death sentence to ensure similar results in similar cases.
In Jurek v. Texas,9 the Texas statutory scheme was found constitutional. Although Texas does not have statutory aggravating circumstances as Georgia and Florida have, the capital offenses have been confined to a small group of narrowly defined and particularly brutal offenses, which fulfill the same purpose. In the sentencing phase of the proceedings, the jury is required to respond to three statutory, designated questions. If the jury finds the State has sustained the burden of proving beyond a reasonable doubt, and the answer is in the affirmative to each of the questions, then the death sentence is imposed. The court stated:
By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing of whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure the sentences of death will not be “wantonly” or “freakishly” imposed, it does not violate the Constitution. . . . 10
In Woodson v. North Carolina,11 the court found a mandatory death sentence was not a constitutionally proper response to Fur-man’s rejection of unbridled jury discretion in the imposition of capital sentences. The court observed that central to the limited holding in Furman was the concept that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. A mandatory death sentence papers over the problem of unguided and unchecked jury discretion. The mandatory North Carolina act provided no standards to guide the jury in the exercise of its power to determine who lives or dies. Furthermore, there was no way provided for the judiciary to check arbitrary and capricious exercise of the power through a review of the death sentence. The mandatory death sentence does not fulfill Fur-man’s basic requirements, viz., arbitrary and wanton jury discretion be replaced with objective standards to guide, make regular, and rationally reviewable, the process for imposing sentence of death. Since there is a qualitative difference in the sentence of death, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.
Louisiana also responded to Furman by enacting a mandatory death penalty; however, there was requirement that four verdict forms setting forth first and second degree murder, manslaughter, and not guilty, be submitted to the jury, whether raised by the evidence or requested by defendant. In Roberts v. Louisiana12 the court said Louisiana’s definition of murder, although more narrow than that of North Carolina’s, was not of controlling constitutional significance.. The constitutionally *279proscribed vice of mandatory sentencing was the lack of focus on the circumstances of the particular offense and the character and propensities of the offender. The diversity of circumstances presented by cases within a single category of killings during the commission of a specified felony, as well as the variety of possible offenders, underscores the rigidity of Louisiana’s enactment and its similarity to the North Carolina statute. There was no opportunity for consideration of mitigating factors presented by the circumstances of the particular crime, or by the attributes of the individual offender. The mandatory sentence also fails to comply with Furman’s requirement that standardless jury discretion be replaced by procedures which safeguard against arbitrary and capricious imposition of death sentences. The court observed the Louisiana procedure neither provided standards to channel jury judgments, nor permitted review to check the arbitrary exercise of the capital jury’s de facto sentencing discretion. As in North Carolina, there were no standards provided to guide the jury in the exercise of its power to select those first degree murderers who would receive the death sentence, and no possibility of a discerning appellate review of the jury’s decision.
Further substance to the court’s concept of perceptive appellate review was provided in Gardner v. Florida :13
. Since the State must administer its capital sentencing procedures with an even hand [Citation], it is important that the record on appeal disclose to the reviewing court the considerations which motivated the death sentence in every case in which it is imposed. Without full disclosure of the basis for the death sentence, the Florida capital-sentencing procedure would be subject to the defects which resulted in the holding of unconstitutionality in Furman v. Georgia.
From the foregoing cases, certain general concepts emerge. There must be discretion conferred on the sentencing body in capital cases to consider the circumstances of the particular crime and the attributes of the individual offender. However, this discretion must be directed and limited by a means designed with the specific purpose of minimizing the risk of arbitrary and capricious action by the sentencing body. Finally, there must be a sufficiently definite specification or identification of the factors relied upon by the sentencing authority, in reaching its decision, so perceptible judicial review is available to ensure the sentence has not been imposed capriciously or in a freakish manner.
The Utah statutory plan for imposition of the death penalty does not comply with these minimal requirements. To hold the statutory scheme constitutional requires elevation of form over substance. Section 76-5-202(1) sets forth the aggravating circumstances which are incorporated as elements of the capital crime of first degree murder. Although these circumstances are more numerous than the five under the Texas statute, they do fulfill the requirement for statutory aggravating circumstances. During the guilt phase of the proceeding, at least one of these aggravating circumstances must be found beyond a reasonable doubt, by the fact finder, or the defendant is not subject to a capital sentence. During the sentencing phase of the proceeding, under § 76-3-207(1), in addition to the statutory aggravating circumstances, the sentencing body hears evidence as to any matter the court deems relevant in aggravation or mitigation of the sentence. Since the jury makes no findings, and aggravating circumstances other than the statutory ones are considered, it is impossible for an appellate court to conduct a discerning review to determine the precise considerations which motivated the verdict of death. The same type of problem applies regarding the mitigating circumstances, for there is no means by which the appellate court can determine whether the jury did not believe the evidence, disregarded it, or found the evidence insufficient.
*280The most serious deficiency in the Utah statutory scheme is the total failure to supply any guidelines to the sentencing authority in the assessment of the mitigating and aggravating circumstances. The statute neither states who has the burden of proof nor the quantum of this burden in assessing the aggravating and mitigating circumstances. Through this omission the sentencing authority, in effect, has unbridled discretion to determine who shall die and who shall live.
In State v. Pierre,14 this Court compensated for the legislative omission by supplying the guidelines. In Pierre, the trial judge had instructed the jury the State had the burden to prove a death sentence was appropriate. In the instant case, the trial court adhered to the statutory provisions in § 76-3-207(2) and no instruction concerning the burden of proof or its quantum was given. In Pierre, this Court held, in the penalty phase of . capital offenses, the burden of proof for a verdict of death was on the State, and the totality of evidence of aggravating circumstances must therefore outweigh the totality of mitigating circumstances.
As noted in the opinion of Mr. Justice Wilkins, the opinion in Pierre became public after the matter at hand was tried.
In Jurek, where the aggravating circumstances are, in effect, incorporated as an element of the capital offense; and, as in Utah, are determined by the fact finder beyond a reasonable doubt during the guilt phase of the proceeding, the same burden of proof is imposed on the state during the penalty phase.
However (again in Jurek), specifically, the jury must answer the following three questions in the penalty phase; after receiving evidence of the mitigating circumstances:
(1)Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
(2) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(3) If raised by the evidence whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. Art. 37.071(b) (Supp.1975-1976).
The death sentence is imposed, only if the jury finds the State has proved, beyond a reasonable doubt, the answer to each of the three questions is affirmative. If the answer to any of the questions is negative, a sentence of life imprisonment is imposed.15
The Utah statute lacks a counter-balance similar to that of Texas. Namely, Utah does not require the state to sustain a similar burden (beyond a reasonable doubt) concerning the circumstances in mitigation, as it does during the guilt phase in regard to statutory aggravation.
Although the Pierre test is effective in states such as Georgia and Florida where the sentencing body finds both the aggravating and mitigating circumstances and weighs them during the penalty phase, it has the effect under the Utah statutory scheme of creating a mandatory death penalty. Specifically, since the aggravating circumstances (the statutory ones) have already been proved under a standard of proof which is of the greatest magnitude in the judicial system (beyond a reasonable doubt), the aggravating circumstances must necessarily always outweigh the mitigating circumstances. In effect, the mitigating circumstances must attain a level of proof of a magnitude unknown or unidentified in the legal system; to outweigh the aggravating circumstances. The present statute does not even have the latitude of the prior Utah statute, § 76-30-4, which permitted the jury to recommend leniency.
*281The Utah statutory plan has a format similar to the Model Penal Code16 the standards of which were commended in Gregg v. Georgia.17 However, the aggravating circumstances, which are first determined in the penalty phase under the Model Penal Code, are engrafted into the guilt phase in the Utah Code, and become one or more elements of first degree murder, § 76-5-202(l)(a) through (h). Both Codes set forth similar mitigating circumstances in the penalty phase, § 76-2-307(l)(a) through (g). The Utah Code is silent and provides no guidelines as to the manner in which the sentencing body deals with the mitigating and aggravating circumstances. The Model Penal Code supplies these deficiencies. Section 210.6(2) provides:
The court in exercising its discretion as to sentence, and the jury, in determining upon its verdict, shall take into account the aggravating and mitigating circumstances enumerated in Subsections (3) and (4) and any other facts that it deems relevant, but it shall not impose or recommend sentence of death unless it finds one of the aggravating circumstances enumerated in Subsection (3), and further finds that there are no mitigating circumstances sufficiently substantial to call for leniency. When the issue is submitted to the jury, the Court shall so instruct. 18
In my opinion, if the jury has any doubt the death penalty is proper, it should not impose the penalty; and it should be. so instructed.
The Model Code format clearly guides and channels the sentencing authority’s discretion and thus averts arbitrariness and capriciousness. Furthermore, the guidelines provide a basis for cognitive appellate review, viz., does the evidence support the finding there were no mitigating circumstances sufficiently substantial to call for leniency. In contrast, the Utah statute, through legislative omission, leaves the sentencing body with carte blanche discretion in its evaluation of the aggravating and mitigating circumstances.
Furthermore, even with the Pierre balancing standard,, which has no statutory authority,19 there can be no appellate review, with cognition, for the court is left to speculate whether the sentencing body did not believe the evidence of mitigating circumstances, or whether it was determined the aggravating outweighed the mitigating facts.
The deficiencies in the Utah statute are vividly illustrated in the matter at hand. There was a substantial amount of evidence defendant had ingested rather substantial quantities of drugs (Preludin and Valium) and alcohol (whiskey and beer) prior to the murder. In addition, there was included in evidence, during the penalty phase of the proceeding, a psychiatric report stating defendant had acted in a state of diminished capacity, without the ability to reason, caused by intoxication and drugs. Such evidence supports a statutory mitigating circumstance, § 76-3-207(l)(d):
At the time of the murder, the capacity of the defendant to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirement[s] of law was substantially impaired as a result of mental disease, intoxication, or influence of drugs;
The jury was given no instruction concerning the manner in which this circumstance should be appraised, vis-a-vis, with *282the statutory aggravating circumstances, as well as the other facts in evidence, in the penalty phase proceeding. Thus, this Court on review is left to speculate whether the jury disbelieved the evidence concerning this statutory mitigating circumstance, ignored the statute, or attributed little weight to it. The record does not disclose to this court the basis and considerations which motivated the death sentence.20 ,
An examination of the instruction to the jury during the penalty phase clearly reveals the constitutional infirmities in the Utah statutory plan. Significantly, the instruction adheres to § 76-3-207(2),21 which is the only statute concerning’instruction to the jury during the penalty phase.
The court instructed the jury as follows:
Members of the Jury:.
Having found the defendant guilty of the crime of criminal homicide, murder in the first degree, which is a capital felony, you now, under the law, have a responsibility with respect to the sentence for that crime.
' The law provides that when a defendant has been found guilty of a capital felony there shall be a further proceeding on the issue of penalty. The penalty which will ultimately be imposed as provided by law is either death or life imprisonment.
The law provides that evidence may be presented to you as to any matter the court deems relevant to the sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. The State’s attorney, the defendant’s attorneys and the defendant are and will be permitted to present evidence and arguments for or against the sentence of death.
With respect to mitigating circumstances, the law provides that you may consider the following:
(a) The defendant has no significant history of prior criminal activity;
(b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;
(c) The defendant acted under extreme duress or under the substantial domination of another person;
(d) At the time of the murder, the capacity of the defendant to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirement of law was substantially impaired as a result of mental disease, intoxication, or influence of drugs;
(e) The youth of the defendant at the time of the crime;
(f) The defendant was an accomplice in the murder committed by another person and his participation was relatively minor;
(g) Any other fact in mitigation of the penalty.
The law further provides that if you return a unanimous verdict for death, then that sentence is to be imposed by the Court. On the other hand, if you do not reach a unanimous verdict of death, then the Court is required to impose a sentence of life imprisonment.
The parties to this proceeding, that is, the State of Utah and the defendant, may now proceed to bring before you such aggravating and mitigating circumstances as may be relevant to the sentence to be imposed, and at the conclusion of the proceedings you will retire for *283deliberation thereon. When in the course of your deliberations you either reach a unanimous verdict for death or you become reasonably satisfied that such unanimous verdict will not be rendered, then you will notify the officer having you in charge who will conduct you into court.
I will hand you herewith two forms, one of which is denominated Sentence Verdict and the other has no denomination.
The sentence verdict reads:
“We, the Jury impanelled in the above entitled cause, having heretofore found the defendant guilty of criminal homicide, murder in the first degree, render a verdict for death.”
The other form reads:
“Our deliberations have been concluded, and we are reasonably satisfied that we will not reach a unanimous verdict for death.”
The foreman will sign the appropriate form and not the other, and bring both forms into court.
You may take this instruction with you to the jury room.
Dated this 22nd day of September, 1977.
Hon. Allen B. Sorensen Judge.
Under this instruction, the jury had untrammeled discretion to impose or withhold the death penalty. The mere recital of the statutory mitigating circumstances in the instruction, without any guidance as to its usage or weight, did not suitably direct or limit the discretion of the jury so as to minimize the risk of wholly arbitrary and capricious action.22 The conclusion is compelling, the Utah statutory scheme for imposition of the death penalty violates the Eighth and Fourteenth Amendments of the United States Constitution, and Art. I, § 9, Constitution of Utah.
With reference to the prejudicial error of the inadmissible testimony, I wish to make comment. This error may be deemed of constitutional dimension. The Utah Constitution, Article I, Section 12, provides:
In criminal prosecutions the accused shall have the right . . . to be confronted by the witnesses against him
Although, it is not necessary to go further, it is well to note, in Gregg, the court expressed approval of a procedure which does not unnecessarily restrict the evidence that can be offered at the penalty hearing. The court admonished:
. So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions.23
In Presnell v. Georgia,24 the court stated the fundamental principles of procedural fairness apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial. In Gardner v. Florida,25 the court observed that in a capital case, the sentencing process must satisfy the requirements of the Due Process Clause. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence. The court stated consideration must be given to the quality as well as the quantity of the information upon which the sentencing body may rely. In Gardner the court found, in a capital case, the interest in the reliability of the information used in the sentencing process outweighed other asserted interests of the State.26
This case is analogous to Gardner, where the trial judge used confidential information in the process of determining to sentence the defendant to death. The court ruled defendant was denied due process of *284law, when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain. Since defendant Brown’s death sentence was based, in part, on information (hearsay on hearsay) that was unreliable, and where he had no opportunity to confront his accuser, he was denied due process of law.
Even if there were a reasonable doubt as to whether this error were prejudicial, this court has ruled the doubt should be resolved in favor of the defendant, especially where the error violates a defendant’s constitutional rights.27
The Anomaly of Section 76-5-202
■ Another aspect of constitutional dimension which merits consideration is the arbitrary and unreasonable classification of second and first degree murder.
Section 76-5-202(1) provides:
(1) Criminal homicide constitutes murder in the first degree if the actor intentionally or knowingly causes the death of another under any of the following circumstances: .
Section 76-5-203 provides:
(1) Criminal homicide constitutes murder in the second degree if the actor:
(a) Intentionally or knowingly causes the death of another; .
A person convicted of murder in the first degree is subject to the death penalty, and a person convicted of second degree murder is subject to a term of imprisonment of not less than five years, and may be for life. Both degrees of murder require the actor intentionally or knowingly cause the death of another, the distinction in classification involves the eight circumstances set forth in subdivisions (a) through (h) inclusive in § 76-5-202(1), the first degree murder statute.
A legislative classification is never arbitrary or unreasonable so long as the basis for differentiation bears a reasonable relation to the purposes or objectives to be accomplished by the act. If some persons or transactions, excluded from the operation of law, were as to the subject matter of the law in no differentiable class from those included within its operation, the law is discriminatory in the sense of being arbitrary and unconstitutional. . . . 28
The objective or functions of the death penalty are purported to be retribution, i. e., a vindication of society’s moral outrage at particularly offensive conduct and a possible deterrence of capital crimes by prospective offenders.29
The most offensive, brutal, cold-blooded homicide is second degree murder if its circumstances are not within those specified in § 76-5-202(1). If “A” rapes and murders a woman, it is first degree murder, subdivision (l)(d). If “B” tortures and murders a woman without raping her and dissects her body, it is second degree murder. If “A” murders two people at the same time, it is first degree murder, subdivision (l)(b). If “B” murders a dozen people, each at a separate time, each murder is in the second degree. If “A” commits a murder after he has previously been convicted of first or second degree murder, it is first degree murder, subdivision (l)(g). If “B” commits a number of murders prior to any conviction for this continuing conduct, each murder is in the second degree. If “A” kills his father to inherit his property, it is first degree murder, subdivision (l)(f). If “B” kills his father because he knows his father disinherited him, it is second degree murder. If “A” kills someone for some pecuniary or personal gain, it is first degree murder, subdivision (l)(f). If “B” kills someone for the thrill or personal enjoyment in killing, it is second degree murder.
In the matter before us, defendant could not have been convicted of first degree murder if he could have convinced the jury his purpose was not to prevent the victim *285from testifying in a legal proceeding, subdivision (lXh), but rather he killed because the victim had irritated him. Furthermore, if defendant had murdered the victim, after he had testified, although motivated by vengeance, he would have been guilty of second degree murder. Admittedly, the timing would have been important; defendant would have had to kill the victim after he testified and before he was convicted of second degree murder.
The foregoing examples illustrate the persons or transactions excluded from the operation of the first degree murder statute are, as to the subject matter of that statute, in no differentiable class from those included in its operation. The basis for differentiation between the two classes of murder does not bear a reasonable relationship to the avowed purposes or objectives to be accomplished by the death penalty, viz., vindication of society’s outrage at particularly offensive conduct and the claimed deterrent value. The classification is arbitrary and unreasonable and the law is discriminatory and unconstitutional on the grounds the heinous crimes excluded from the first degree murder statute are, as to the subject matter, not differentiable from those included.
The unconstitutional aspect could be equally based on the Eighth and Fourteenth Amendments on the ground the classification between first and second degree murder provides, in effect, a random and arbitrary imposition of the death penalty.
HALL, Justice(concurring and dissenting):
I concur in affirming the conviction, but dissent from that portion of the main opinion which reverses the judgment imposing the death penalty.
The main opinion acknowledges that the issue relating to the trial court’s “failure” to instruct on the burden of proof to be borne by the state at the penalty phase was never raised below nor on appeal. It is also of particular note that no exceptions were taken to the court’s instructions as given. In addressing the matter sua sponte, the main opinion would appear to misconstrue the purpose of the bifurcated trial and grossly distorts its function, meaning and effect. In the case of Gregg v. Georgia,1 the United States Supreme Court approved a bifurcated proceeding similar to that adopted in Utah. The reason for separating a determination of guilt from a determination of penalty is to avoid the constitutional pitfalls which exist in the automatic imposition of the death penalty following conviction of a capital crime.2 As stated in Gregg,
Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question. [Citation omitted.] This problem, however, is scarcely insurmountable. Those who have studied the question suggest that a bifurcated procedure — one in which the question of sentence is not considered until the determination of guilt has been made — is the best answer.
Although we are dealing with a two-step decision process, the “guilt” evidence may well overlap with the “penalty” evidence. Indeed, no additional evidence need be submitted.3 At the penalty phase, both the prosecution and the defense have the opportunity to present any additional evidence of aggravation or mitigation they may have, but neither has any burden to go forward. Indeed, they may elect not to offer any additional evidence and merely argue the propriety of imposing the death penalty based on the evidence adduced at the guilt phase. (As was done in Gregg). For pur*286poses of sentencing a defendant to death, the jury need only find that, from the “totality of the evidence,” the aggravating circumstances outweigh the mitigating circumstances.4
The ■ penalty phase is not an adversary proceeding in the traditional sense; rather, it is a neutral proceeding whereby both prosecution and defense are afforded the opportunity of apprising the jury of circumstances not already before it regarding defendant’s character, background, history, mental and physical condition and other facts in aggravation or mitigation of the penalty.5 Also, the court itself is afforded the opportunity of becoming directly involved in this evaluation process, since the statute provides that “[i]n these proceedings, evidence may be presented as to any matter the court deems relevant to sentence . .” 6 The jury then weighs the aggravating circumstances against the mitigating circumstances to determine the, penalty to be imposed.7
While the main opinion cites no authority in support of its analysis, Gregg contains language consistent with the foregoing. In affirming the judgment, the Court recited the facts in Gregg as follows:
At the penalty stage, which took place before the same jury, neither the prosecutor nor the petitioner’s lawyer offered any additional evidence. Both counsel, however, made lengthy arguments dealing generally with the propriety of capital punishment under the circumstances and with the weight of the evidence of guilt. The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count. The judge further charged the jury that in' determining what sentence was appropriate the jury was free to consider the facts and circumstances, if any, presented by the parties in mitigation or aggravation.
Finally, the judge instructed the jury that it “would not be authorized to consider [imposing] the penalty of death” unless it first found beyond a reasonable doubt one of these aggravating circumstances: [The court then listed three of the statutory aggravating circumstances in Georgia.]
Regarding the court’s final instruction quoted above, it is of note that in Georgia, a jury can convict a defendant of a capital offense without even considering aggravating circumstances.8 Evidence of aggravation need not be submitted by the prosecution until the penalty phase,9 at which time at least one aggravating circumstance must be found beyond a reasonable doubt before the jury can consider imposing the penalty of death. After so finding, aggravation is weighed against mitigation in determining the penalty. In Utah, before a jury can even convict a defendant of first degree murder, it must find that at least one aggravating circumstance has been proven beyond a reasonable doubt.10 Then, at the penalty phase, the jury is to weigh evidence of aggravation against evidence of mitigation in passing upon a sentence. It would therefore appear that Utah’s procedure offers even additional protections to a defendant, not present in Georgia’s procedure which has been specifically approved by the United States Supreme Court.
For the foregoing reasons, it was not incumbent upon the court to give a specific instruction as to burden of proof in the instant case, especially where neither party requested it.
The main opinion also bases its decision on the prejudicial effect of certain testimo*287ny admitted at the penalty phase. It is my opinion that even assuming, arguendo, that the testimony of Watson was improperly admitted,11 the testimony of other witnesses clearly show that aggravation outweighed mitigation in the instant case. Several persons testified in the guilt phase of the trial that defendant had used the same and similar obscenities and had used other language which reflected the same callous disregard for human life as was testified to by Watson. The jury’s consideration of these other testimonies assuages any possible error and renders it harmless.12
Given the overwhelming totality of the aggravating circumstances and the extreme paucity of eyidence offered in mitigation, it is obviously not to be said that the death penalty was imposed as the result of the arbitrary and capricious action of an aberrant jury. On the contrary, the record of trial before us adequately supports the verdict of death. The acts of defendant in committing this unusually serious and shocking crime of raw violence, heedless of human life, were proven — and proven in the environs of a fair and just trial.
I would affirm the verdicts and the judgment.
CROCKETT, Chief Justice(concurring with affirmance of conviction, but dissenting as to interference with judgment):
I agree with the main opinion’s affirmance of the defendant’s conviction. But I am unable to see it as consistent with judicial prerogative or responsibility to nullify the jury’s recommendation, and the judgment entered thereon by the trial court. These done after extended trial in careful conformity with the law and conscientious consideration of all aspects of the case by both the court and the jury.
In preface to the observations in this partial dissent, I think it appropriate to observe that I do not regard it as a proper prerogative or concern of this writer, nór of the Courts or the Justices thereof, to permit any personal predilections to justify rationalizations one way or the other in regard to the propriety or efficacy of the death penalty. The making of the laws and the prescribing of the manner in which they are to be carried out is the prerogative and the responsibility of the legislature. Whereas, it is the bounden duty of judges to see that those laws are carried out in accordance with their intent and purpose, without compunction or distortion resulting from our own notions as to what the law ought to be.
The main opinion commendably and correctly discusses and disposes of the defend-, ant’s assignments of error in attacking his conviction. But I am impelled to disagree with the position that there was error in failing to instruct as to the burden of proof in the “penalty phase” of the proceeding.
In the trial of the case as. to the guilt or innocence of the defendant, the court fully, carefully and repeatedly instructed the jury as to the presumption of the defendant’s innocence and that the burden was upon the State to prove each and all of the elements of the charge against him beyond a reasonable doubt.
From an examination of the statutes prescribing procedure in such cases, it is abundantly clear that the legislature intended that if an accused is found guilty of the capital felony, then in the subsequent penalty phase of the proceedings any formalities of procedure are to be relaxed for the purpose of full inquiry, and the receiving of any information, either on behalf of the defendant, or of the State, as to any matters of aggravation or mitigation which should be considered on the problem as to the penalty to be imposed.
The view just stated is borne out by Sec. 76-3-207, U.C.A. 1953, which provides for such subsequent hearing and states in part that:
In these proceedings, evidence may be presented as to any matter *288the court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court deems to have probative force may be received regardless of its admissibility under the exclusionary rules of evidence. [Emphasis added.]
It is further significant to note that, in so prescribing the procedure, that statute does not impose any requirement as to burden of proof. I see no disharmony with the observation made in State v. Pierre1 that “the totality of evidence of aggravating circumstances must therefore outweigh the totality of mitigating circumstances.” Simply stated, unless that is the case, a death sentence could not and would not be imposed. That is so obviously a matter of common sense as would not require further explanation to the jurors. Particularly so, when they had already been told several times that it was the State’s burden to prove beyond a reasonable doubt every element of the accusation against the defendant; and there had been no other instructions given as to any other burden of proof in the proceedings.
It is also worthy of note that neither the defendant nor the State made any request for any such further instruction in the trial court, nor raised any such point in this Court. However, I certainly have no disagreement with the proposition that in matters of such serious import, if it appears that there is any reasonable likelihood that any prejudice to the defendant may have resulted because of any error or omission, this Court should take notice thereof and correct it on its own initiative.2 However, that is not the case here. It is my impression that the main opinion, in acting on its own motion to raise the question as to an instruction on burden of proof in the penalty phase of the trial, constitutes a specious but unrealistic objection, which may well be related to reservations because of the seriousness of the death penalty (a matter which I emphasize is properly of legislative and not of judicial concern) and has the effect of interfering with and defeating the express legislative intent as to the processes of justice, rather than carrying them out.
Notwithstanding the gravity of this matter, it seems to me inescapable that, however unpleasant and stark the realities of the situation may be, the facts should be faced up to that in the guilt phase of the trial, both sides had ample opportunity to present all of their evidence and arguments to the court and jury; and that when they arrived at the penalty phase of the trial, both sides likewise were afforded full and fair opportunity to present whatever facts they thought might bear upon the questions of mitigation or aggravation.
Upon review, it is the duty of this Court to assume that the jury believed those aspects of the evidence which support their verdict and their recommendation. Under that assumption, the sordidness of this crime could hardly be overstated. The main opinion correctly characterizes it as “a shocking and violent crime of murder in the first degree for the purpose of preventing a witness from testifying” against defendant. In accepting the jury’s view of the evidence, it seems indisputably plain that the defendant, in truculent and arrogant defiance of the law, had appointed himself as the executioner of Steven Losh; that the defendant set up a plan for and carried out a heartless and cold-blooded execution upon the victim when he was cowed down in submission and begging for mercy; and that the vileness and vulgarity of his conduct in what was done and said, both preceding and following that crime are properly characterized as manifesting unspeakable depravity. Under that version of facts as accepted by the jury, the verdict and recommendation they arrived at is hardly surprising.
Correlated to what has been said above, and having a bearing on the issue under *289discussion here, the vital question is: Was there any error or omission in the sentencing phase of the proceeding which was prejudicial to the defendant? It is submitted that upon a fair and objective view of the total situation, it appears without doubt that neither any failure to instruct, nor any error in the receipt of evidence, had any such adverse effect upon the defendant or the judgment rendered that there is any reasonable likelihood that there otherwise would have been a different result.3
There is this final observation to be made. Our law assures this defendant, and all other persons accused of crime, numerous and ample rights and protections against the conviction or punishment of the innocent,4 all of which appear to have been properly and carefully accorded this defendant. Nevertheless, if there is anything of any nature whatsoever which yet bespeaks clemency in his behalf, including any subsequent expiatory conduct, our law provides for still further consideration of the problem by our Board of Pardons, which has the unrestricted power to commute a death sentence, if it is persuaded that that is the proper thing to do.5
On the basis of what has been said herein, it is my opinion that the defendant has had his full and fair entitlement under our law, and that there has been no error or impropriety therein which would justify this Court’s interference with the verdict and the judgment; and that it is therefore our duty to affirm them.
.408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
. 428 U.S. 153, 189, 96 S.Ct. 2909 (1976).
. “. . . the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” Furman v. Georgia, 408 U.S. 238, 309-310, 92 S.Ct. 2726, 2763.
. Gregg v. Georgia, note 2 supra; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
. 428 U.S. 195, 96 S.Ct. 2935.
. Id.
. Note 4 supra.
. Note 4 supra.
. 428 U.S. 276, 96 S.Ct. 2958.
. Note 5 supra.
. Note 5 supra.
. 430 U.S. 349, 361, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393 (.1977).
. Utah, 572 P.2d 1338, 1347-1348 (1977).
. See Jurek v. Texas, 428 U.S. 262, 269.
. A.L.I., Model Penal Code, Proposed Official Draft, § 210.6, pp. 128-132; also see A.L.I., Model Penal Code, Tentative Draft No. 9, pp. 59-63.
. 428 U.S. 193-195.
. Id. at p. 130. [Emphasis supplied.]
. See Coker v. Georgia, 433 U.S. 584, 589-591, 97 S.Ct. 2861, 2865, 53 L.Ed.2d 982 (1977) wherein it is stated: “The court also instructed, pursuant to statute, that even if aggravating circumstances were present, the death penalty need not be imposed if the jury found they were outweighed by mitigating circumstances; that is, circumstances not constituting justification or excuse for the offense in question, ‘but which, in fairness and mercy, may be considered as extenuating or reducing the degree’ of moral culpability or punishment. . [Emphasis supplied.]
. Gardner v. Florida, note 13 supra.
. “The court or jury, as the case may be, shall retire to consider the penalty. In all proceedings before a jury, under this section, it shall be instructed as to the punishment to be imposed upon a unanimous verdict for death and that to be imposed if a unanimous verdict for death is not found. If the jury reports unanimous agreement to impose the sentence of death, the court shall discharge the jury and shall impose the sentence of death. If the jury is unable to reach a unanimous verdict imposing the sentence of death, the court shall discharge the jury and impose the sentence of life imprisonment.”
. Gregg v. Georgia, note 2 supra.
. 428 U.S. 203-204, 96 S.Ct. 2939.
. 439 U.S. 14, 15, 99 S.Ct. 235, 236, 58 L.Ed.2d 207, 211 (1978).
. Note 13 supra.
. 430 U.S. at 358-359, 97 S.Ct. at 1204-1205.
. State v. Eaton, Utah, 569 P.2d 1114 (1977).
. Leetham v. McGinn, Utah, 524 P.2d 323, 325 (1974).
. Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929-2930.
. 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
.In Gregg, the Court held that “[e]vidence considered during the guilt stage may be considered during the sentencing stage without being resubmitted.”
. State v. Pierre, Utah, 572 P.2d 1338 (1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978).
. An instruction to this effect was given at the penalty phase of the trial.
. U.C.A., 1953, 76-3-207.
. Supra, footnote 4.
. See Georgia Code Ann. § 26-1101 (1972).
. See Georgia Code Ann. § 27-2534.1 (Supp. 1975).
. Aggravation is, in fact, an element of the offense. U.C.A., 1953, 76-5-202.
. But see the separate opinion by Chief Justice Crockett which interprets U.C.A., 1953, 76-3-207.
. That this Court cannot reverse a jury verdict for harmless error, see Rule 4, Utah Rules of Evidence.
. Utah, 572 P.2d 1338 (1977).
. State v. Cobo, 90 Utah 89, 60 P.2d 952 (1936).
.State v. Wells, Utah, 603 P.2d 810 (1979) and authorities cited therein.
. Art. I, Sec. 12, Utah Constitution.
. Art. VII, Sec. 12, Utah Constitution.