(concurring and dissenting).
Although I agree with parts I, II, III, IV, VI, IX, X, and XI of the majority opinion, I dissent from parts V, VII, and VIII and therefore from the result.
Discussion of Life Sentence
(Part V of Majority Opinion)
Notwithstanding its rejection of the presumed waiver doctrine in appellate review of capital cases, the majority opinion dismisses defendant’s claimed error in the penalty phase because he “should be deemed to have invited the error (if there was any) and waived any objection.” I disagree with this analysis.
The majority opinion, in allocating responsibility to defense counsel for mentioning the length of a “life” sentence, neglects the fact that it was the prosecutor who first raised the issue of what might happen if defendant were ever to be free. The prosecutor began his closing argument in the penalty phase by telling the jury members that their job was “to make a risk assessment of Mr. Tillman in terms of his future life.” He emphasized the future risk element repeatedly:
[A]t the same time you still have the obligations of the State and Mr. Tillman to weigh and balance and future risks that may be posed by Mr. Tillman’s future conduct.
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So we stand equal at this point in time with Mr. Tillman in balancing out and assessing those risks that you must take with you to the jury room.... [Y]ou can ask yourselves several things in assessing the risk of Mr. Tillman.
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Now you can turn your cheek once and twice and even seven times, but that’s not going to bring back Mark Allen Scho-enfeld and you have to ask yourselves, “Do I want to run that risk again? Do I dare run that risk again?”
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But more importantly, we are talking about deterrence of one man, one man alone, and that’s Elroy Tillman who we are going to say, “If we execute this man we no longer run the risk associated with what he has done in the past and more specifically what he did to Mark Allen Schoenfeld when he bludgeoned him to death with an ax and then to further disfigure him, set fire to him while he was still breathing.”
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We thank you in advance for your attention in this matter and ... I know you believe in your hearts this will probably be the most important thing that you will remember for a good long time to come, and may you be able to live with that verdict and be able to say to yourselves, “That was the appropriate verdict under the circumstances and I can rest assured for the future safety of society.”
It was in response to the foregoing “specific deterrence” argument that defense counsel made his remarks estimating that defendant would be unlikely ever to receive parole or, if paroled, to be released from prison before becoming an old man. Thus, the prosecutor’s “rebuttal” remarks about the length of a life sentence were made in the context of a debate, begun by the prosecutor himself, concerning the risks attendant upon allowing defendant to live. The prosecutor emphasized the extreme threat of violence that defendant represented and then told the jury that defendant would be free to perpetrate that violence in fifteen years if they did not impose the death *584penalty. That information was not an accurate statement of either the law or the facts. It was misleading, and it is not difficult to see how it could have had a substantial impact on the jurors' decision to impose the death penalty rather than a life sentence. It is quite clear from the prosecutor’s entire argument that it was designed to influence them — to convince them that the risks of letting defendant live were too great, that a life sentence would inevitably mean freedom.
The Court should not countenance such prosecutorial overreaching in the penalty phase of a capital case. When the State seeks forfeiture of life as the penalty for a criminal act, it must do so without reliance upon any form of deception or exaggeration, deliberate or casual, intentional or inadvertent.
That the defendant acted in a reprehensible and even vicious manner cannot justify the state’s departure from strict adherence to basic principles of justice. For our system of justice to command the respect of society, the law must be applied, in all cases, in a judicious and even-handed manner.
State v. Wood, 648 P.2d 71, 80 (Utah), cert. denied, 459 U.S. 988, 108 S.Ct. 341, 74 L.Ed.2d 383 (1982).
The sentencing procedure in capital cases in Utah is
fundamentally different from the procedure in other criminal cases_ In non-capital cases, the trial judge has broad discretion in selecting an appropriate punishment from among a number of alternatives, ... and the sentence need not be based on evidence in addition to that adduced at trial. In capital cases, there must be a separate evidentiary hearing, ... which is clearly adversarial and adjudicatory in nature. The sentence must be based on the evidence properly before the court, and the decision is a forced choice between one of only two alternatives.
Id. at 83 n. 9 (emphasis added; citations omitted).
There was no evidence properly before the jury on the length of a “life” sentence in Utah, nor was the jury instructed by the court regarding the statutory meaning of such a sentence. Against that backdrop, the prosecutor based the major part of his appeal to the jury for a death sentence on the proposition that defendant was a risk to society if allowed to live, and then the prosecutor told the jury that a life sentence would mean incarceration for fifteen years, a misstatement of the law1 and a representation of fact not supported by the evidence. The “forced choice” offered this jury was tainted by inadequate information and by prosecutorial misrepresentation about the nature of one of the choices. Therefore, I believe that prejudicial error occurred in the sentencing proceeding and that the sentence of death should be vacated and the case remanded to the trial court for new sentencing proceedings.
I also note that in my view it would be proper, if requested, for a jury to be instructed by the trial court on the law regarding life sentences in Utah. This is so, not only for reasons of fairness, but also by reason of the language of Utah Code Ann. § 76-3-207(3) (Supp.1987): “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.”
In King v. Lynaugh, 828 F.2d 257 (5th Cir.1987), reh’g granted (Nov. 4, 1987), the defendant challenged the trial court’s refusal to permit him to conduct voir dire aimed at determining whether potential jurors held misconceptions about Texas’s parole law. The court held that such a voir dire should have been allowed “[bjecause widely held misconceptions about the actual effect of imposing a life sentence raise an unacceptable risk that the death penalty may be imposed on some defendants largely on the basis of mistaken notions of pa*585role law.” Id. at 260. In its discussion of jury instructions on the minimum duration of a life sentence, the court also stated:
“[T]he state cannot channel the sentencer’s discretion, but must allow it [to] consider any relevant information offered by the defendant.” Alternative sentences and what, in reality, they mean constitute just such relevant information and circumstances. Although such information does not relate directly to a defendant’s character or record, it is an integral part of the calculus sentencers use to determine whether a life sentence will suffice to ensure that a particular defendant, convicted of a particular crime, will pose a continued threat to society.
Id. at 263 (quoting McCleskey v. Kemp, 481 U.S. -, -, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262, reh’g denied, — U.S. -, 107 S.Ct. 3199, 96 L.Ed.2d 686 (1987)).
Merely to instruct jurors that “life imprisonment” shall be imposed does not adequately inform them, since “life” is an ambiguous term in our statutory scheme. Whereas it might ordinarily be construed as referring to incarceration lasting the remainder of the natural life of the defendant (which is what it means in states which define it as “life imprisonment without the possibility of parole”), in Utah it simply means that the defendant will be permitted to live and will be incarcerated until paroled, if ever, by the Board of Pardons. Utah Code Ann. § 77-27-9(1) (Supp.1987). The Board of Pardons develops its own guidelines and determines by internal rules and procedures when an inmate becomes eligible for parole release. A minimum eligibility threshold is not determined by statute.
The Unanimity Rule
(Part VII of Majority Opinion)
I disagree with the majority opinion’s assertion that Utah’s first degree murder statute and the Model Penal Code are “strikingly different.” Our first degree murder statute appears to be an amalgamation of the definitional portion of the Model Penal Code murder provisions and its death penalty sections. The aggravating circumstances found in the original version of Utah Code Ann. § 76-5-202 are quite similar to the aggravating circumstances listed in section 210.6(3) of the Model Penal Code. Under the Model Penal Code’s death penalty provisions, there are two fact-finding stages. The first stage requires a finding of guilt respecting the killing. The second requires a finding of one of the enumerated aggravating circumstances and a finding that no mitigating factors exist calling for leniency. Only after both of these findings have been made can the death penalty be imposed. Our statutory scheme incorporates the aggravating circumstances directly into the definitional portion of the first degree murder statute, thus narrowing the pool of those eligible for the death penalty in the guilt phase of the trial rather than in the penalty phase as does the Model Penal Code.
The State argues correctly that our first degree murder statute is analogous to California’s scheme, although California utilizes a more straightforward Model Penal Code structural approach. Like the Model Penal Code, the California statute defines first degree murder as a premeditated killing or a killing in the course of certain felonies. Cal.Penal Code § 189 (West Supp.1987). Moreover, similar to the Model Penal Code approach, a “special circumstance proceeding” is conducted in California after the guilt phase. Cal.Penal Code § 190.1 (West Supp.1987). California’s statute explicitly provides that this special circumstance proceeding demands the same standard of proof and unanimity as the crime charged (i.e., proof beyond a reasonable doubt and a unanimous jury verdict). See Cal.Penal Code § 190.4(a) (West Supp. 1987). The California Supreme Court discussed the applicability of the guilt phase’s burden of proof and unanimity requirements to the special circumstance proceeding in People v. Garcia, 36 Cal.3d 539, 684 P.2d 826, 205 Cal.Rptr. 265 (1984), cert. denied, 469 U.S. 1229, 105 S.Ct. 1229, 84 L.Ed.2d 366 (1985). The court stated:
We have ... noted the resemblance between a special circumstance proceeding and a trial to determine guilt.... “In *586the California scheme the special circumstance is not just an aggravating factor: it is a fact or set of facts, found beyond reasonable doubt by a unanimous verdict ..., which changes the crime from one punishable by imprisonment of 25 years to life to one which must be punished either by death or life imprisonment without possibility of parole. The fact or set of facts to be found in regard to the special circumstance is not less crucial to the potential for deprivation of liberty on the part of the accused than are the elements of the underlying crime which, when found by a jury, define the crime rather than a lesser included offense or component.”
36 Cal.3d at 551-52, 684 P.2d at 832-33, 205 Cal.Rptr. at 271-72 (quoting People v. Superior Court (Engert), 31 Cal.3d 797, 803, 647 P.2d 76, 79, 183 Cal.Rptr. 800, 803 (1982)).
Under the Utah Constitution and the Utah Code, a unanimous jury verdict is required in all criminal cases. Utah Const, art. I, § 10; Utah Code Ann. § 77-35-21(b) (Supp.1987). Moreover, the State must prove each element of the offense beyond a reasonable doubt. Utah Code Ann. § 76-1-501 (1978). “Element of the offense” refers to the mens rea or culpable mental state required by the statute and the actus reus or conduct that is proscribed in the definition of the offense. Id.
In State v. Russell, 733 P.2d 162 (Utah 1987), this Court applied the general rule that unanimity of the jury is not required on the alternative mens rea elements of our second degree murder statute. The majority opinion in Russell pointed out, however, that “[tjhere are limitations on the rule.... If the statute under which the defendant is convicted actually defines more than one crime and not merely one crime which may be committed in several different ways, the defendant is entitled to jury unanimity on which crime he is guilty of committing.” Id. at 166-67. This standard is consistent with the requirements of federal due process in criminal cases: “[T]he Due Process ‘ Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970) (emphasis added).
In a comprehensive discussion of “patchwork” verdicts, one commentator has observed:
Within broad limits, the legislature has the power to declare how few facts must be found in order to convict the accused.
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Two further points about reasonable doubt and patchwork verdicts should be made.. First, as society’s moral interest in avoiding a factually erroneous judgment increases, the criminal justice system responds by trying to decrease the possibility of factual error. For instance, proof beyond a reasonable doubt is required in criminal but not in civil cases; a 5-1 verdict is sufficient in civil but not in criminal cases; criminal trial by jury is required only where six months’ imprisonment can be imposed; and no state permits a nonunanimous conviction in a capital case.
Accordingly, all other things being equal, patchwork verdicts should be least acceptable in capital cases and increasingly acceptable in felony, misdemeanor, and civil cases.
Trubitt, “Patchwork Verdicts, Different-Jurors Verdicts, and American Jury Theory: Whether Verdicts are Invalidated By Juror Disagreement On Issues,” 36 Okla.L. Rev. 473, 531-32 (1983) (emphasis added; citations omitted).
The foregoing analysis is logical; there should be few, if any, opportunities for the State to convict a defendant of a capital crime under circumstances where the jury need not be unanimous as to each and every legal and essential factual element of the crime. Our statute reads as follows: 76-5-202. Murder in the first degree.
(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:
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*587(d) The homicide was committed while the actor was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, ... aggravated arson, arson, aggravated burglary, burglary....
The only intentional killings that qualify as first degree (capital) murder are those accompanied by the specific facts set forth in the statutory list of aggravating circumstances. It is therefore inappropriate to argue that first degree murder is “one crime which may be committed in several ways.” Under our statutory scheme, there is no one “abstract” crime of capital murder; first degree murder is intentional killing plus “A,” intentional killing plus “B,” intentional killing plus “C,” and so on. “A,” “B,” and “C” are all different facts or circumstances. They are distinct factual and legal elements of the crime of first degree murder, each of which must be proved beyond a reasonable doubt, and concerning each of which the jury must render a unanimous verdict.
In this case, however, the problem of legislative specificity moves to yet a deeper level. One way to read our statute is that undertaken by the majority opinion, namely, to determine that subparagraph (d) merely requires that the State prove that an intentional killing was committed in the course of any of certain serious felonies. The argument is that it does not matter whether the jury is unanimously convinced that the defendant was engaged in, for example, rape or kidnapping, so long as they are all convinced that it was one or the other, since both “aggravate” the killing in a similar fashion.
The majority of the cases articulating the foregoing rationale are cases in which there was a question about whether the jury had convicted on a theory of intentional murder or traditional (unintentional) felony-murder. See, e.g., State v. Encinas, 132 Ariz. 493, 647 P.2d 624 (1982); People v. Milan, 9 Cal.3d 185, 507 P.2d 956, 107 Cal.Rptr. 68 (1973); State v. Wilson, 220 Kan. 341, 552 P.2d 931 (1976); Fitzpatrick v. State, 638 P.2d 1002 (Mont.1981); State v. Anderson, 27 Utah 2d 276, 495 P.2d 804 (1972). These cases are not helpful because, like State v. Russell, they were essentially state of mind or intent cases: the jurors could legitimately decide whether the facts justified an inference of intentional killing or unintentional killing in the course of a felony. There was no reason to be concerned in those cases that the State might have failed to meet its burden of proof regarding the existence of the predicate felony. In fact, it did not matter if the State had not convinced all of the jurors of the predicate felony beyond a reasonable doubt, because the remainder of the jurors had to be convinced that the killing was intentional in order to vote for conviction. In other words, all of the jurors in these cases were convinced that the defendant killed either with the requisite intent or under circumstances which made intent irrelevant.
Under our first degree murder statute, the same reasoning does not apply. If a defendant is accused, for example, of intentionally killing while in the commission of rape and kidnapping, a patchwork general verdict permits the possibility that the State can obtain a conviction for “intentional killing during rape” and “intentional killing during kidnapping” without ever convincing all of the jurors that either a rape or a kidnapping occurred. Whereas it does not matter in the traditional felony-murder cases whether an individual juror finds that intent existed or that the felony was committed, it may matter a great deal whether one juror is convinced that there was a rape but no kidnapping (e.g., the victim accompanied the defendant willingly but did not consent to sex) or no rape but a kidnapping (e.g., the victim was abducted but thereafter consented to sex). It is not at all difficult, as the foregoing hypothetical suggests, to project a scenario where only six jurors are persuaded that the defendant committed a rape and only six are persuaded that the defendant committed a kidnapping, yet the defendant is eligible for the death penalty because, and only because, of those crimes, neither of which the State has been able to prove unanimously.
*588The majority opinion states that “there was only one actus reus for the crime charged, causing the death of another. There are not alternatives for the actus reus of the charged crime.” Although a unanimous jury may be convinced that a defendant committed the single actus reus, an intentional killing, if some members of the jury believe the defendant guilty under one “theory” and others under another, as the majority opinion permits, the State has proved only second degree murder (intentional killing) beyond a reasonable doubt to a unanimous jury. Thus, two quite different legal results — second degree murder and an indeterminate term of five years to life or first degree murder and a possible death sentence — may be associated with the single actus reus. In this case, the general verdict does not show that the State has proved any aggravating circumstance beyond a reasonable doubt to a unanimous jury, and therefore I assert that it is not entitled to a conviction of capital murder.
It is significant that the State concedes in its brief that
a compelling argument can be made that charging a felony circumstance under section 76-5-202(l)(d) is tantamount to charging the commission of the felony separately, and thus the state should have to operate under the same burden as it would in a regular trial on the felony — i.e., proof beyond a reasonable doubt and jury unanimity on the defendant's guilt of the felony.
Having made that concession, the State has confined itself in the briefs to arguing that the general unanimity instruction given in this case was adequate and that if the failure to give a specific unanimity instruction was error, it was harmless. In that context, I do not understand the majority’s willingness to go even farther than the State’s position on the question of error.
The general instruction on jury unanimity given in this case was entirely inadequate to inform the jury of its obligation to decide unanimously regarding the charged arson and burglary. Error was therefore committed, and the only remaining question is whether it may be considered harmless. Because I believe there is no legal basis under the merger doctrine, discussed hereafter, for a first degree murder conviction on these facts, I do not reach the issue of harmless error.
Based on the foregoing analysis, I believe that a unanimous verdict of the jurors on the specific felony charged is necessary to convict a defendant of first degree murder under section 76-5-202(l)(d) because (1) in capital cases, the consequence of error or ambiguity in the verdict is extreme and the need for certainty very high, and (2) the specific felony charged is an inherent part of the definition of the crime, and due process requires that each of its elements be established beyond a reasonable doubt. I agree with the following statement of the Washington Supreme Court in State v. Green,2 94 Wash.2d 216, 233, 616 P.2d 628, 638 (1980):
In the instant case ..., the alternative ways of committing aggravated murder in the first degree are themselves separate and distinct criminal offenses. In order to convict a defendant of either kidnapping or rape, the State must prove every, statutory element of that crime beyond a reasonable doubt to a unanimous jury. Where, as here, the commission of a specific underlying crime is necessary to sustain a conviction for a more serious statutory criminal offense, jury unanimity as to the underlying crime is imperative.
Merger Doctrine
(Part VIII of Majority Opinion)
Defendant argues that because the burglary and arson proved in this case were obviously only incidental to the homicide, they “merge” into the killing and may not properly be used as aggravating circumstances under our capital statute. Although I agree with the majority opinion *589that most of the cases defendant cites are inapposite because they deal with traditional felony-murder rules applicable only to unintentional killings, I think his basic premise is correct.
The issue is straightforward. Utah Code Ann. § 76-5-202(l)(d) makes an intentional killing first degree murder if “[t]he homicide was committed while the actor was engaged in the commission of ... arson, ... [or] burglary.” (Emphasis added.) Defendant argues that the legislature intended that persons who commit intentional killings in furtherance of, or in order to facilitate or hide, the enumerated felonies be exposed to the death penalty. The State takes the position that the legislature intended rather to enhance the penalty when any intentional killing is carried out by means of one of the felonies or coincidentally at the same time as the killing. Put another way, the issue is whether the killing was done to further, or in connection with, the felony, or whether the felony was committed to further, or in connection with, the killing.
Both positions have some basis in logic, and neither is clearly compelled by the statutory language “while the actor was engaged in_” It is necessary in this instance for the Court to infer the most likely intent of the legislature from the context and history of our capital punishment statute.
As I pointed out in my discussion of the unanimity rule, Utah’s death penalty statute parallels quite closely the design and language of the Model Penal Code, although the aggravating factors are set forth as part of the definition of first degree murder in the Utah statute, rather than separately in the penalty provisions as they are in the Model Penal Code. The language of Model Penal Code § 210.6 is virtually identical to that of our statute:
(3) Aggravating Circumstances.
(e) The murder was committed while the defendant was engaged ... in the commission of ... [certain enumerated felonies, all involving potential violence].
The only commentary on the section says:
[Paragraph] (e) ... identifies] [a] further [circumstance] in which the death penalty should be considered. [It] concern[s] murder committed in connection with designated felonies, each of which involves the prospect of violence to the person.
II American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments), § 210.6, at 137 (1980) (emphasis added). There being no further explanation of the intent of the Code’s authors regarding the “while engaged in” language in the death penalty provision, it is instructive to note that identical language is used in the “felony-murder” portion of the Model Penal Code, dealing with unintentional killings. Model Penal Code § 210.2 presumes the “recklessness and indifference” necessary to make an unintentional killing murder “if the actor is engaged ... in ... [the same enumerated felonies as in death penalty provisions plus felonious escape].” Since the authors used identical language, it is fair to conclude that they intended the language to be construed similarly in both sections. It is, furthermore, quite clear from the commentary to section 210.2 that the Model Penal Code’s authors rejected any expansion of the traditional felony-murder rule and approved attempts made prior to the Model Code to restrict its application.
Beyond the operation of this presumption [of recklessness and indifference], it is the submission of the Model Code that the felony-murder doctrine should be abandoned as an independent basis for establishing the criminality of homicide.
Id. § 210.2, at 30. In light of that submission, it is highly unlikely that the Model Penal Code drafters intended a construction of the “while engaged in” language that would result in an extension of the application of the felony-murder concept. The commentary cites the following historic developments in the felony-murder rule with approval:
Other judicial limitations on the rule were accomplished by several different methods. First, courts required that the felony be “independent” of the homicide. Under this theory, an assault with a *590deadly weapon could not support a conviction for felony murder because the assault is an offense included in the charge of homicide. Still other courts narrowly construed the period during ' which the felony was in the process of commission as a method of limiting the operation of the rule.
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These limitations confine the scope of the felony-murder rule, but they do not resolve its essential illogic.
Id. § 210.2, at 34-36 (citations omitted). I conclude that the Model Penal Code language was intended to include killings incidental to felonies and not felonies incidental to killings.
The State concedes in its brief that the Utah death penalty statute is closely analogous to California’s, which is also modeled on the Model Penal Code. The California statutory language is “while the defendant was engaged in ... the commission of,” language that is virtually identical to “while the actor was engaged in the commission of,” the Utah formulation. The construction given the California statute by the California Supreme Court is therefore relevant and helpful. In People v. Green, 27 Cal.3d 1, 609 P.2d 468, 164 Cal.Rptr. 1 (1980), that court, discussing an earlier version of the California language which, although worded differently, had an identical meaning, said:
[W]e infer that the purpose of the Legislature was to comply insofar as possible with what it understood to be the mandate of Furman and Gregg et al. At the very least, therefore, the Legislature must have intended that each special circumstance provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not. The Legislature declared that such a distinction could be drawn, inter alia, when the defendant committed a “willful, deliberate and premeditated” murder “during the commission” of a robbery or other listed felony. [Former § 190.2 subd. (c)(3).] The provision thus expressed a legislative belief that it was not unconstitutionally arbitrary to expose to the death penalty those defendants who killed in cold blood in order to advance an independent felonious purpose, e.g., who carried out an execution-style slaying of the victim of or witness to a holdup, a kidnapping, or a rape.
The Legislature’s goal is not achieved, however, when the defendant’s intent is not to steal but to kill and the robbery is merely incidental to the murder ... because its sole object is to facilitate or conceal the primary crime_ To permit a jury to decide who will live and who will die on the basis of whether in the course of committing a first degree murder the defendant happens to engage in ancillary conduct that technically constitutes robbery or one of the other listed felonies would be to revive “the risk of wholly arbitrary and capricious action” condemned by the high court plurality in Gregg. We conclude that regardless of chronology such a crime is not a murder committed “during the commission” of a robbery within the meaning of the statute.
27 Cal.3d at 61-62, 609 P.2d at 505-06, 164 Cal.Rptr. at 38-39 (citations omitted). It is logical to assume that the Utah Legislature intended similarly restrictive, rather than expansive, import to the phrase “while engaged in the commission of.” The use of the Model Penal Code language supports such a view, as does the reasoning used by the California Supreme Court in Green.
There is no question on this record that the felonies charged were committed to advance the killing, rather than vice versa. Therefore, what we have in this case is a murder coincidentally accomplished by means of burglary and arson. Absent some other legitimate aggravating factors (several of which may have been present here but were not charged or proved), defendant was improperly convicted of first degree murder, and the conviction should be reduced to a first degree felony.
Conclusion
Because of the operation of the merger doctrine and the absence of a unanimous verdict on an aggravating circumstance, I *591would vacate defendant’s first degree murder conviction. Because of prosecutorial misconduct, I would also vacate the death penalty. Defendant is entitled to a reduction of his conviction to second degree murder. Utah Code Ann. § 76-1-402(5) (1978); State v. Bolsinger, 699 P.2d 1214 (Utah 1985).
. The statutory provisions regarding eligibility for parole of persons convicted of first degree homicide and sentenced to life imprisonment are found in Utah Code Ann. § 77-27-9(1) (Supp.1987).
. As the majority points out, the Washington Supreme Court in State v. Whitney, 108 Wash.2d 506, 739 P.2d 1150 (1987), recently retreated from this language. However, I still believe that it represents a well-reasoned view of this issue.