specially concurring:
I agree with the majority that the conviction of the appellant should be affirmed, and that the aggravating circumstance of the murders being heinous, atrocious or cruel cannot be sustained under the evidence presented in the trial of this case. I write at this time to express my views about the alternatives available to us when we find one of the aggravating circumstances must fail. Under 21 O.S.Supp. 1985, § 701.13(E), there are three alternatives available to this Court when we find that an aggravating circumstance cannot be sustained. We may affirm the death penalty, as we have done here; remand for a new sentencing proceeding under the provisions of 21 O.S.Supp.1989, § 701.10(A); or reduce the punishment to one of the forms of a life sentence.
I find three cases in which this Court has opted for the first alternative: Stouffer v. State, 742 P.2d 562 (Okl.Cr.1987); Castro and Nguyen v. State, 769 P.2d 167 (Okl.Cr.1988). In each of these cases we found that the evidence would not sustain an aggravating circumstance; but in light of the overwhelming evidence of the guilt of the appellant and the evidence of other aggravating circumstances validly found by the jury, we determined that the improper finding of the invalid circumstance to be harmless error.
In Stouffer, 742 P.2d at 564, we stated:
Upon careful consideration of the evidence supporting the aggravating circumstances, and the evidence of circumstances which may in fairness and mercy be considered as extenuating or reducing the degree of moral culpability, we find the sentence of death factually substantiated and appropriate. Due to the overwhelming evidence of guilt and the jury’s rejection of Stouffer’s defense of self-defense and accident, the jury’s finding that the murder was heinous, atrocious, or cruel was at most harmless error. Nor can we say that the sentence of death is arbitrary or capricious after the inappropriately determined aggravating sentence is removed from consideration and the aggravating and mitigating circumstances are reweighed.
(Citations and footnotes omitted).
Therefore, when we find an aggravating circumstance to be unsupported by the evidence we must determine if any valid aggravating circumstances remain. The court will then reweigh those remaining valid circumstances against the mitigating evidence. If we find that there is no question that the aggravating circumstances outweigh the mitigating evidence, the death sentence may be affirmed. However, if we find it questionable that the aggravating circumstances do not outweigh the mitigating evidence, then the death sentence is by definition arbitrary or capricious and must be vacated, reducing the sentence to a form of life imprisonment.
A gray area exists between these two poles of our alternatives. There will be factual situations presented to us where we will not be able to determine beyond question whether or not a death sentence would be appropriate or not appropriate absent the improper finding of an aggravating circumstance. In this situation, we must remand the matter to the trial court for a new sentencing trial.
When these alternatives are considered in the present case, our conclusion is easily reconciled. The jury found that in all three murders there was an additional aggravating circumstance of continuing threat, and in the Bellafato murders they also found that Appellant created a risk of death to *693more than one person. Judge Johnson finds that these additional aggravating circumstances are factually supported, and I agree, finding that the evidence is overwhelming. In addition, we are required to consider if the death penalty is appropriate by comparing the evidence of aggravation and mitigation. I find Appellant’s involvement in Satanism, the manner and motive of the crimes and his failure to exhibit remorse until after his incarceration to be strong evidence of the remaining aggravating circumstances found by the jury. The strongest mitigating evidence is the Appellant’s age, his public behavior and reputation and the fact that he was emotionally disturbed. When one side is considered in light of the other, I find that the jury properly found in favor of the death penalty even when the one circumstance is eliminated.
There is precedent for this position. In Castro the appellant was convicted of a murder that occurred during the commission of an armed robbery. We upheld the death penalty on the single aggravating circumstance of continuing threat when evidence concerning punishment indicated that the appellant had killed before and had also committed prior robberies. The fact that in our present case there were multiple murders, separated by time and without a common motive, is very strong aggravating evidence. In addition, the jury found that Appellant created a great risk of death to more than one person in the Bellafatto murders.
For the above reasons I CONCUR in the majority opinion in affirming Appellant’s conviction for Murder in the First Degree and the imposition of the death penalty.