dissenting.
Three important questions are before us in this case, in addition to the vacation of sentence and remand to the trial court required under Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989).
The three questions are:
(1) Whether the remand should require resentencing only,
(2) whether, in an Oregon capital trial where the state seeks the death penalty, it is lawful to advise the jury, either during its selection or at the close of the trial, *343that “the jury does not decide on the sentence of life or death,” and
(3) whether defendant was deprived of due process of law during the guilt-innocence phase of his trial because he was not provided the opportunity to meet important evidence used against him to establish some of the special elements required for conviction of aggravated murder.
1. Remand for Resentencing Only.
The Oregon death penalty statute did not meet federal constitutional muster at the time that the homicide in this case occurred. The Supreme Court of the United States vacated a death sentence and remanded the case to this court in Wagner v. Oregon, supra, because of the form of that statute. Thereafter, 100 words were added to the statute in an effort to save it from the constitutional infirmity. The added words were to be effective as of the earlier date that the homicide occurred. The legislature did not add the words; this court’s majority did. See State v. Moen, 309 Or 45, 102-04, 786 P2d 111 (1990) (Fadeley, J., dissenting) (detailing the 100-word addition to statute). When the people adopted the death penalty statute by the initiative process, they did not include those 100 words. This court had no authority to make a substantial, significant, and after-the-fact addition to the 1984 statute.1 Only the legislative branch may enact penal laws. State v. Isom, 313 Or 391, 395, 837 P2d 491 (1992) (“the power of punishment is legislative”).
As stated in the first three paragraphs of my dissenting opinion in State v. Williams, 313 Or 19, 44-45, 828 P2d 1006, cert den 121 L Ed 2d 118 (1992), I continue to believe the remand should be to impose the mandatory life sentence provided by statute, obviating the need for a new jury and new trial.
*3442. Tell the Jury That It Decides.
The second issue may come into play on remand because the majority remands to empanel a new jury for a new penalty-phase trial. At the former trial, error occurred concerning the issue of whether the jury decides on the death penalty because the court told the jurors that they did not decide, an inaccuracy reinforced repeatedly by the prosecutor. The record containing the error follows.
During the voir dire of a specific venireman who was eventually selected as a juror, the following occurred:
“Q [BY DEFENSE ATTORNEY]: Actually, in this situation, the State is seeking the death penalty, and it is the jury that decides whether the death penalty or life imprisonment should be imposed.
“[PROSECUTOR]: Object, Your.Honor. It’s a misstatement of the law.
“THE COURT: Yes. I don’t think we should characterize it that the jury decides. You may tell him what the procedure is. That’s appropriate.”
Later in the voir dire of this juror the following occurred:
“[PROSECUTOR]: Objection, Your Honor.
“THE COURT: Yes. I’ll sustain as to form. The jury does not decide on the sentence of life or death. The jury answers three questions. I think in fairness to the jurors, I think it should be made clear to them that they answer three questions.” (Emphasis added.)2
During closing argument in the penalty phase, the prosecutor made the following statement to the jury:
“Finally, Ladies and Gentlemen, I would like to comment on an argument counsel made yesterday, and that is — he said this repeatedly, I did not object — he said that you folks will decide if Michael Tucker deserves the death penalty. He said the State of Oregon is asking you folks to decide what should happen in this case. That simply is not true. In the first place, you’ll have the verdict form, and you’ll find that that question isn’t asked anywhere. The questions asked are the ones we’ve gone over. [The penalty verdict form contained two *345questions, whether defendant killed deliberately and whether there was a risk of future dangerousness.]
“You folks know the connection between the questions and the decision, nobody is trying to fool you on that, but more importantly none of you people decided if the defendant deserves the death penalty, none of you people will. * * *
C<* * * * *
“Nobody in this case is asking you jurors to go out and find a verdict that the defendant should get the death penalty.” (Emphasis added.)
The trial court’s refusal to give either defendant’s requested instruction 29 or 29A, refusals duly excepted to, left the jury inaccurately informed concerning the meaning and gravity of their answers to the inadequate statutory questions.
The Supreme Court of the United States requires an individualized judgment as to whether the individual defendant deserves the sentence of death, an issue which in Oregon is left up to the penalty-phase jury alone. The trial judge has no sentencing discretion whatever once their verdict is in. The automatic appellate review does not touch the jury’s findings if supported by proper evidence.
In Caldwell v. Mississippi, 472 US 320, 342-43, 105 S Ct 2633, 86 L Ed 2d 231 (1985), Justice O’Connor, concurring in part and concurring in the judgment, described the Supreme Court’s requirement for an individualized judgment as follows:
“In my view, the prosecutor’s remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury’s sense of responsibility. I agree there can be no ‘valid state penological interest’ in imparting inaccurate or misleading information that minimizes the importance of the jury’s deliberations in a capital sentencing case.
a* * * * *
“As the Court notes, however, the Mississippi prosecutor’s argument accomplished the opposite result. In telling the jurors, ‘your decision is not the final decision . . . [y]our job is reviewable,’ the prosecutor sought to minimize the sentencing jury’s role, by creating the mistaken impression that automatic appellate review of the jury’s sentence would provide the authoritative determination of whether death *346was appropriate. In fact, under Mississippi law the reviewing court applies a ‘presumption of correctness’ to the sentencing jury’s verdict.”
In Turner v. Murray, 476 US 28, 33-34, 106 S Ct 1683, 90 L Ed 2d 27 (1986), the lead opinion states:
“In a capital sentencing proceeding before a jury, the jury is called upon to make a ‘highly subjective, “unique, individualized judgment regarding the punishment that a particular person deserves” ’ Caldwell v. Mississippi, 472 US 320, 340, n 7, 86 L Ed 2d 231, 105 S Ct 2633 (1985) (quoting Zant v. Stephens, 462 US 862, 900, 77 L Ed 2d 235, 103 S Ct 2733 (1983) (Rehnquist, J., concurring in judgment)).
“* * * [Ojur cases establish that every capital sentencer must be free to weigh relevant mitigating evidence before deciding whether to impose the death penalty, see, e.g., Eddings v. Oklahoma, 455 US 104, 71 L Ed 2d 1, 102 S Ct 869 (1982); Lockett v. Ohio, 438 US 586, 597-609, 57 L Ed 2d 973, 98 S Ct 2954, 9 Ohio Ops 3d 26 (1978) (plurality opinion), and that in the end it is the jury that must make the difficult, individualized judgment as to whether the defendant deserves the sentence of death.”
Moreover, as Witherspoon v. Illinois, 391 US 510, 522, 88 S Ct 1770, 20 L Ed 2d 776 (1968), and Morgan v. Illinois,_US _, 112 S Ct 2222, 119 L Ed 2d 492, 506 (1992), make clear, a prospective juror who automatically will vote either for the death penalty or against it is not qualified to serve. This juror disability is premised on the legal fact that the jury determines whether death or life shall be the sentence imposed individually and the disability is to be discovered by questioning prospective jurors about the dogmatics of their individual attitudes toward the death penalty. In brief, a juror must be “indifferent as he stands unsworne.” 3 Coke on Littleton 500 (J.H. Thomas ed 1826).
The majority attempts to avoid the foregoing constitutional defect in defendant’s trial by answering it with two arguments, one substantive and the other technical or procedural.
The substantive argument is that a different, but accurate, instruction about who bears the responsibility for imposing the death penalty was given, one that “accurately conveyed to the jury its role in determining defendant’s *347sentence” and one that “adequately covers the subject of the requested instruction.” 315 Or at 332.
However, the instruction given does not tell the jury that they have the responsibility for deciding, it says that the “law” decides. Nor, does the instruction given have any place where the jury may consider mitigating circumstances or otherwise decide that the death penalty is not appropriate in the individual case even though deliberateness and risk of future dangerousness are found to be present. Indeed, the instruction that the majority would approve is indistinguishable from the statutory situation found constitutionally wanting in Wagner v. Oregon, supra, leading to vacation of sentence here. We need not go that route again. See State v. Wagner, 305 Or 115, 219, 752 P2d 1136 (1988) (Gillette, J., dissenting, joined by Linde, J.) (predicting that Oregon’s three-question death penalty scheme would be found constitutionally infirm).
The technical point is stated by the majority as a conclusion that the claim of error was not preserved. First, defendant requested instructions and excepted to the refusal to give them. Second, defendant asked the question of the juror on voir dire and it was the opponent’s objection that was sustained in error. Defendant need not do anything further to preserve that error, having already indicated to the court that defendant believes the law requires letting the jury know that they decide on the death penalty sentence and having maintained that legal position throughout the trial by requesting instructions to that effect and excepting to denial of those instructions.
3. Due Process Requires Opportunity to Meet Adverse Evidence.
Defendant contends that a new trial of the guilt-innocence phase is required. Because I conclude that defendant was denied due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution, I would broaden the majority’s remand for selecting a new jury and conducting a new penalty-phase trial to require that the new trial include the guilt-innocence phase as well. State v. Brown, 310 Or 347, 374, 800 P2d 259 (1990) (remanding for sentencing for violation of ORS 163.115, intentional *348non-capital murder, or for retrial under ORS 163.095, aggravated capital murder, where there was reversible error related only to the aggravating element making the homicide a capital crime).
Because (1) the jury will be selected anew, and (2) because the evidence required to be offered by the state in the penalty phase to support the death penalty will be mostly the same evidence as would be used to establish guilt or innocence related to homicides in the course of robbery or burglary, the entire case may be retried with little if any added cost or delay as compared to a trial of penalty phase only. If the prosecutor decides to retry the case on remand rather than to seek life imprisonment under the felony murder statute, the guilt or innocence phase of the case must be retried in my view because of the due process violation in the former trial of that phase. I turn to a description of that violation and an evaluation of how it contributed to the guilty verdicts.
The facts leading to the homicides in this case are these. Defendant and another miscreant discussed places that they might burglarize and rob. The other suggested the home of the two victims in this case. The other’s wife had worked there and the other knew of ways to enter and steal. After the victims were shot in the course of the ensuing burglary, only defendant was charged with aggravated murder.
Evidence to prove that the murders were intentionally and personally committed by defendant (as is required to make them aggravated murder, as to defendant) — thus making defendant eligible for a death sentence — consisted of only the following: testimony of the other miscreant; admissions defendant made to his former girl friend who, initially at least, shared in receiving some of the stolen property; and testimony of jailhouse inmates who shared cell-space with defendant after his arrest. Defendant’s assignment of error involves the testimony of the last kind of witness.
The claim of error requires that we first establish the context for the relevant aggravated murder statute. Oregon, by a separate statute providing for a maximum punishment of life in prison, also recognizes the felony murder doctrine *349that causing death during the course of certain felonies is murder equivalent to intentional murder. Oregonians authorized the death penalty for only a few intentional or felony homicides where one or more additional aggravating elements are present.
The people of Oregon require that, for a felony related murder to become a capital or aggravated murder, the involvement of the death-eligible defendant must be more culpable than simple participation in committing the felonies on which the aggravation is partially based.
ORS 163.095(2)(d) in part provides that for a felony murder to become aggravated murder, the jury must find that: “the defendant personally and intentionally committed the homicide under the circumstances set forth in ORS 163.115(l)(b) [duringthe commission of certain felonies.]” A felony participant who does not both intend to kill and personally commit the homicide cannot be found guilty of aggravated murder or be sentenced to death. Proof of the aggravating element is required in the guilt or innocence phase of the trial.
The Supreme Court does not now require intent to kill and personal commission óf the homicide in order to uphold a state law assessing capital punishment for felony murder, compare Enmund v. Florida, 458 US 782, 102 S Ct 3368, 73 L Ed 2d 1140 (1982) (death penalty may not constitutionally be imposed on a defendant who aided and abetted a felony, but who did not kill, attempt to kill or intend that a killing take place), with Tison v. Arizona, 481 US 137, 149-52, 107 S Ct 1676, 95 L Ed 2d 127 (1987) (defendant may be sentenced to death although he did not intend to kill, if he was a major participant in the felony and showed reckless indifference to human life). Oregon has done so, with legal results as in Enmund, but based on state law. With that statutory context in mind, I turn to the testimony giving rise to the claim of error.
During the trial, one of the jail-house witnesses indicated in an answer that defendant “was proud” of killing the victims. The questions asked and answers given are as follows:
“Q. [BY THE PROSECUTOR] Okay. In his conversations with the group that you heard, did Mr. Tucker ever indicate *350whether this was some sort of an accident that they were shot?
“A. No.
“Q. What did he — What did he say to you in that regard?
“A. He told me he shot them both point blank. And he seemed real proud of the fact that he did that.”
The judge, on defendant’s objection and motion, ruled:
“THE COURT: Sustained. That characterization will be stricken from the record. I instruct the jury to disregard that last remark.”
Notwithstanding this ruling, at the close of the guilt-innocence phase of the trial, the prosecutor argued that defendant was “bragging” of having killed the victims. The argument, defendant’s timely objection to it, and the court’s ruling thereon are as follows:
“[THE PROSECUTOR]: After his arrest, Michael Tucker was lodged in the Polk County Jail. While he was there, he told fellow inmates about the murders, not so much talking about them as bragging about them * * *.
“[DEFENSE ATTORNEY]: Excuse me, Your Honor. But I do have an objection. That testimony was specifically ordered stricken from the record, about the bragging.
“THE COURT: The jury will have to rely on their own recollection. I don’t know that it was stricken. I just can’t remember. You may proceed.”
The trial court, apparently forgetting its ruling some weeks earlier, did not require the prosecutor to refrain from arguing that the evidence that the jury had heard but which was stricken from the record justified a conviction for the aggravated murder charge. The trial court left it to the jury to decide whether to consider the stricken evidence.
That exchange, with its judge’s response that he was not sure whether the specific evidence was in the case and that the jury would have to rely on its own recollection, left the situation unacceptably ambiguous. One or more of the jurors may very likely have thought that the judge was giving them permission to use any testimony of which they had a recollection. Because capital verdicts must be unanimous, the realistic potential that even one of the jurors believed that the “proud-of-it” evidence could be used to convict would require *351reversal. They all could recall what they heard in the courtroom, that defendant was “proud” that he had killed.
When the trial judge ruled that the evidence was not admissible, that ended defendant’s consideration of it and should have ended a juror’s consideration also. It also ended any opportunity3 to meet that evidence by any means, including cross-examination, or any other controversion. When defendant made his decision not to testify, he was entitled to rely on the court’s ruling withdrawing the “proud-of-it” testimony from the jury. No other direct “proud” evidence, or evidence to support a claim of bragging, strictly within the dictionary definition of that term, is in the record. Certainly there was no opportunity to cross-examine the “proud” statement. Because the evidence was nonetheless used against him and because defendant had no opportunity to meet that evidence, defendant was denied his right to a trial that accords him the due process required by the Fourteenth Amendment to the United States Constitution.4
Neither this court nor the United States Supreme Court has directly held that a lack of opportunity to meet evidence used against a criminal defendant does or does not result in denial of due process to that defendant. However, in several cases, related rulings have been made that support the conclusion that federal due process requires such an opportunity and that, absent that opportunity, a conviction is constitutionally defective and reversible. The error that defendant complains of, therefore, requires consideration under federal law of the constitutional validity of the guilt-*352innocence phase of his trial and of the verdicts of conviction rendered on charges that required, for conviction, both personal intent to kill and personally carrying out that intent.
Abstractly discussing the parameters of due process, this court has said in State v. Turner, 253 Or 235, 238, 453 P2d 910 (1969), that “[w]hen liberty is at issue, due process of law must be satisfied.” See also State v. Gann, 254 Or 549, 561-62, 463 P2d 570 (1969) (due process requires the use of procedures that are so fundamental that their absence impairs or discredits the criminal proceeding); McWilliams v. Gladden, 242 Or 333, 344, 407 P2d 833 (1965) (purpose behind constitutional requirement of due process is to prevent a conviction by methods that are inconsistent with the American view of fair play). See also Duncan v. Louisiana, 391 US 145, 148-49, 158, 88 S Ct 1444, 20 L Ed 2d 491 (1968) (stating that whether the right denied is “essential for preventing miscarriages of justice” is a test for whether the right is guaranteed by Fourteenth Amendment).
The Supreme Court of the United States has said in Skipper v. South Carolina, 476 US 1, 5 n 1, 106 S Ct 1669, 90 L Ed 2d 1 (1986):
“[I]t is not only the rule of Lockett [v. Ohio, 438 US 586, 57 L Ed 2d 973, 98 S Ct 2954, 9 Ohio Ops 3d 26 (1978),] and Eddings [v. Oklahoma, 455 US 104, 71 L Ed 2d 1, 102 S Ct 869 (1982),] that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death'‘on the basis of information which he had no opportunity to deny or explain.’ Gardner v. Florida, 430 US 349, 362, 51 L Ed 2d 393, 97 S Ct 1197 (1977).”
Defendant here had “no opportunity to deny or explain” evidence stricken from the record.
In Chambers v. Mississippi, 410 US 284, 302-03, 93 S Ct 1038, 35 L Ed 2d 297 (1973), a case where state law excluded evidence favorable to a defendant and which would permit the defendant to meet other evidence admitted against him, the Supreme Court said:
“Few rights are more fundamental than that of an accused to present witnesses in his own defense. E.g., Webb v. Texas, 409 US 95, 34 L Ed 2d 330, 93 S Ct 351 (1972); Washington v. Texas, 388 US 14, 19, 18 L Ed 2d 1019, 87 S Ct *3531920 (1967); In re Oliver, 333 US 257, 92 L Ed 682, 68 S Ct 499 (1948). * * * That testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.
“We conclude that the exclusion of this critical evidence, coupled with the State’s refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process. In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.”
Here, defendant could not cross-examine that which was stricken; nor could he appropriately create any other opportunity to meet what was not in the case.
In Re Green, 369 US 689, 691-92, 82 S Ct 1114, 8 L Ed 2d 198, 201 (1962), the Supreme Court said:
“We said in Re Oliver, 333 US 257, 275, 92 L ed 682, 695, 68 S Ct 499, that procedural due process ‘requires that one charged with contempt of court * * * have a reasonable opportunity to meet [the charge]* * * by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.’ ”
The concurring opinion in Re Green, supra, also said:
“Nevertheless, I agree that for a different reason petitioner’s conviction did not comport with the requirements of due process. * * * [Petitioner was denied the right to present this testimony.” 369 US at 696-97.
Inability to present evidence to meet the evidence against the defendant in Green violated due process.
In Turner v. Louisiana, 379 US 466, 472-73, 85 S Ct 546, 13 L Ed 2d 424 (1965), the Supreme Court of the United States said:
*354“The requirement that a jury’s verdict ‘must be based upon the evidence developed at the trial’ goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. * * *
“In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”
Use by a jury of evidence not developed at trial violates due process.
In my estimation, a due process violation is clearly present where, as here, the jury is permitted to use evidence to convict that defendant did not have an opportunity to meet. If no opportunity were provided to meet any of the evidence, a structural defect would exist that is not subject to harmless error analysis under the discussion in Arizona v. Fulminante, 499 US_, 111 S Ct 1246, 113 L Ed 2d 302, 331 (1991). See White v. Maryland, 373 US 59, 83 S Ct 1050, 10 L Ed 2d 193 (1963) (harmless error analysis not applicable to permanent loss of defenses because of lost opportunity to assert them by reason of absence of counsel at arraignment).
Nonetheless, the fact of a constitutional violation does not automatically require reversal and remand. Many federal constitutional errors, for example those arising from evidentiary rulings, may be subject to federal harmless error analysis.
The Supreme Court of the United States held in Chapman v. California, 386 US 18, 24, 87 S Ct 824, 17 L Ed 2d 705 (1967), that, for an error involving denial of a federal constitutional right in a state criminal case to be held harmless, the reviewing court “must be able to declare a belief that it was harmless beyond a reasonable doubt” and that the error did not “contribute” to the defendant’s conviction. Error was found, and the conviction was reversed in that case.
Does the general instruction in this case — to limit the jury’s consideration to the evidence received — make the error harmless? There is no case directly on point with the present case, but several federal cases point to the answer *355that an instruction does not ipso facto erase prejudice or relegate the constitutional error to a harmless status. Where the error arises from not being able to confront and meet an adverse witness’s testimony, apparently the prejudice of that constitutional error is judged in relation to the effect of the deprivation on that one witness’s testimony, not on the overall outcome of the trial as a whole.5
In Delaware v. Van Arsdall, 475 US 673, 679-80, 106 S Ct 1431, 89 L Ed 2d 674 (1986), the Supreme Court lays out that principle as follows:
“In this case, however, the trial court prohibited all inquiry into the possibility that Fleetwood would be biased as a result of the State’s dismissal of his pending public drunkenness charge. By thus cutting off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the court’s ruling violated respondent’s rights secured by the Confrontation Clause.
“The State somewhat tentatively suggests that a defendant should have to show ‘outcome determinative’ prejudice in order to state a violation of the Confrontation Clause: Unless the particular limitation on cross-examination created a reasonable possibility that the jury returned an inaccurate guilty verdict, that limitation would not violate the Confrontation Clause. We disagree. While some constitutional claims by their nature require a showing of prejudice with respect to the trial as a whole, see, e.g., Strickland v. Washington, 466 US 668, 80 L Ed 2d 674, 104 S Ct 2052 (1984) (ineffective assistance of counsel), the focus of the Confrontation Clause is on individual witnesses. Accordingly, the focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness, not on the outcome of the entire trial. It would be a contradiction in terms to conclude that a *356defendant denied any opportunity to cross-examine the witnesses against him nonetheless had been afforded his right to ‘confrontation]’ because use of that right would not have affected the jury’s verdict. We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ Davis v. Alaska, [415 US 308, 318, 39 L Ed 2d 347, 94 S Ct 1105 (1974)]. Respondent has met that burden here. A reasonable jury might have received a significantly different impression of Fleetwood’s credibility had respondent’s counsel been permitted to pursue his proposed line of cross-examination.” (Emphasis added; footnote omitted.)
White v. Illinois, 502 US_, 112 S Ct 736, 116 L Ed 2d 848 (1992), refers to the loss of cross-examination as the loss of: “ ‘the greatest legal engine ever invented for the discovery of truth.’ [California v.] Green, 399 US [149,] 158, 26 L Ed 2d 489, 90 S Ct 1930 [1970].” That loss, as well as others, is present where, as here, the jury is permitted to use evidence to convict that defendant had no opportunity to meet because it was excluded from the case before defendant’s opportunity arose.
Again, while not totally dispositive about the effect of an in-trial instruction to disregard on the harmful nature of a constitutional error, the federal cases most applicable to the present case do point in a definite direction — away from a holding of harmlessness. See Morgan v. Illinois, supra, 119 L Ed 2d at 508 (neither “follow the law” questions put to jurors and answered in the affirmative, nor the juror’s oath are sufficient to override due process violation — not even where the court also gave instructions to disregard the subject of the violation); United States v. Carroll, 678 F2d 1208, 1210 (4th Cir 1982) (“curative” instructions given after prosecutor improperly argued evidence not in the record did not make error harmless). In the present case, after the in-trial instruction, the prosecutor brought the unmet evidence before the jury again, with apparent permission of the trial court.
In Berger v. United States of America, 295 US 78, 85-88, 55 S Ct 629, 79 L Ed 1314 (1934), the Supreme Court stated:
*357“The trial judge, it is true, sustained objections to some of the questions, insinuations and misstatements, and instructed the jury to disregard them * * *. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken.
“The prosecuting attorney’s argument to the jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury. A reading of the entire argument is necessary to an appreciation of these objectionable features. The following is an illustration: A witness by the name of Goldie Goldstein had been called by the prosecution to identify the petitioner. She apparently had difficulty in doing so. The prosecuting attorney, in the course of his argument, said:
“ ‘Mrs. Goldie Goldstein takes the stand. She says he knows Jones, and you can bet your bottom dollar she knew Berger. She stood right where I am now and looked at him and was afraid to go over there, and when I waved my arm everybody started to holler, “Don’t point at him.” You know the rules of law. Well, it is the most complicated game in the world. I was examining a woman that I knew knew Berger and could identify him, she was standing right here looking at him, and I couldn’t say, “isn’t that the man?” Now, imagine that! But that is the rules of the game, and I have to play within those rules.’
“The jury was thus invited to conclude that the witness Goldstein knew Berger well but pretended otherwise; and that this was within the personal knowledge of the prosecuting attorney.
# # # jj:
“In these circumstances prejudice to the cause of the accused is so highly probable that we are not justified in assuming its non-existence. If the case against Berger had been strong, or, as some courts have said, the evidence of his guilt ‘overwhelming,’ a different conclusion might be reached. * * * (citing cases.)” (Emphasis in original.)
See also State v. Blodgett, 50 Or 329, 342, 92 P 820 (1907) (“it will not do for the court to remain silent, leaving the matter of misconduct with the offending party and the jury”).
The effect as to the witness who testified that defendant was “proud-of-it” was prejudicial. In this case, defendant could not even attempt to meet that prejudice. I cannot *358say that I believe beyond a reasonable doubt that the prejudice did not contribute to conviction. I dissent and would remand for resentencing to life imprisonment for felony murder, or for retrial of guilt or innocence.
The applicable Oregon statute is clear. “In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted * * ORS 174.010. See, e.g., Rosentool v. Bonanza Oil and Mine Corp., 221 Or 520, 527, 352 P2d 138 (1960) (legislature would have placed the words “upon such proof of proper purpose” in the statute had it so intended and this court is precluded from adding the words to the statute).
Only two questions, related to deliberateness and future dangerousness, were on the verdict forms ultimately supplied to the jury.
There is no quarrel with my Brother Unis about his method of approach or whether the initial ruling of the trial court striking the “proud-of-it” statement was appropriate. But the evidence was later used against defendant, with the judge’s apparent acquiescence as the jury would understand, even though the result of the trial court’s ruling was to dispense with any opportunity of defendant to effectively cross-examine or otherwise meet the evidence used against him. Surely the fact that evidence could have been admitted does not justify basing a verdict on that evidence after it was in fact excluded.
Defendant’s argument regarding the admission of the stricken evidence raises the issue whether he was deprived of a fair trial because he could not confront all the evidence used against him. He clearly preserved the claim of error under the rule of State v. Hitz, 307 Or 183, 766 P2d 373 (1988). As occurred in State v. Farber, 295 Or 199, 666 P2d 821 (1983), however, the parties have not briefed this question under the Oregon Constitution or suggested why a different result would be required by that document. According, I only address the error under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Thus, the majority’s claim of some other evidence from other witnesses, from which an inference of “bragging” could be drawn, even if it were accurate, could not prevent the fact of prejudicial error in this case. In Satterwhite v. Texas, 486 US 249, 108 S Ct 1972, 100 L Ed 2d 284 (1988), the Supreme Court held that error in admitting evidence of a psychiatrist’s testimony in violation of Sixth Amendment rights in a capital case was not harmless even though there was other evidence to the same effect. The Court reversed a sentence of death, noting that the state had relied heavily on that constitutionally improper evidence and that the other similar evidence was not of similar impact.