concurring and dissenting:
I concur in the majority’s vacating the death sentence but disagree with the opinion in other respects.
*106In my opinion, the jury instructions do not adequately convey to the jury the necessary understanding that the death penalty is not mandatory under any circumstances and that the findings of aggravating circumstances must be by unanimous verdict. For the jury to have been able to understand what the trial court was trying to convey, the jury would have to have patched together and reconciled a number of individual portions of various instructions. Juries cannot be expected to do this; and, moreover, a capital case defendant should not be faced with this kind of uncertainty.
I agree that the proposed jury instruction set out in the majority opinion, which is offered in order to “forestall future uncertainty on the issues,” eliminates much of the uncertainty and lack of clarity in instructing the jury that resulted in prejudicial error in this case. (My emphasis.) It is this very “uncertainty,” however, that causes me to part company with the majority and which persuades me that we should not deny Mr. Geary’s petition for rehearing on these issues.