dissenting:
I join in Justice Lohr’s and Justice Kirsh-baum’s dissenting opinions and write separately to point out additional infirmities which, in conjunction with the errors outlined by Justices Lohr and Kirshbaum, impaired the reliability and certainty constitutionally essential to a death sentence and concomitantly vitiated the fairness of the capital sentencing hearing.
The constitutionally required elements of reliability and certainty mandate that the jury not be led to believe that the responsibility for determining the ultimate appropriateness of a death sentence rests elsewhere. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); People v. Drake, 748 P.2d 1237 (Colo.1988); People v. Durre, 690 P.2d 165 (Colo.1984). In this case, the trial court instructed the jury in Instruction No. 25 as follows:
You are instructed that for purposes of sentencing, Counts One [first degree murder after deliberation] and Two [felony-murder] merge and the Defendant will receive a life sentence.
The Court must sentence the Defendant to a life sentence on Counts Three through Nine. The decision on whether to impose all of those sentences, or part of them, concurrently or consecutively, is upon the Court.
As I discussed in my dissent in People v. Davis, 794 P.2d 159, 218, (Colo.1990) (Quinn, C.J., dissenting), this instruction “created the potential for jury confusion on whether the jury verdicts were advisory only or indeed were final and binding decisions on the ultimate issue of life imprisonment or death.” Instruction No. 25 served no purpose other than to add to the uncertainty with respect to whether the jury or the court had the ultimate responsibility for determining the appropriateness of the death sentence in this case.
I agree with Justice Lohr’s observations that the jury instructions and verdict forms in this case did not comply with this court’s decision in People v. Tenneson, 788 P.2d 786 (Colo.1990). Tenneson requires the trial court to instruct the jury that it must be convinced beyond a reasonable doubt not only that any mitigating factors do not outweigh the proven aggravating factors, but also that death is the appropriate penalty, before a sentence of death may be imposed. I would simply repeat here, as I did in Davis, 794 P.2d at 218-219 (Quinn, C.J., dissenting), that I continue to adhere to the view that the formulation of the “proof beyond a reasonable doubt” standard in terms of mitigating factors not outweighing any proven aggravating factors is incompatible with federal and state constitutional standards applicable to a capital sentencing hearing. See Tenne-son, 788 P.2d at 802-08 (Quinn, C.J., dissenting).
The certainty and reliability essential to a death verdict was further impaired in this case by Instructions 16 and 18, which permitted the jury to consider as an aggravating circumstance not only the fact that the defendant intentionally killed the victim whom he kidnapped, but also the fact that the defendant intentionally caused the death of the kidnapped victim in the course of or in furtherance of the crime of second degree kidnapping, a class two felony.1 This duplicate use of the same aggravating circumstances for essentially the same purpose is incompatible with the constitutional requirement that a capital sentencing scheme guide and focus the jury’s objective *999consideration of the particularized circumstances of both the crime and the offender in determining whether death is the appropriate punishment. See, e.g., Jurek v. Texas, 428 U.S. 262, 273-74, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929 (1976); Cook v. State, 369 So.2d 1251, 1256 (Ala.1979); Randolph v. State, 463 So.2d 186,193 (Fla.1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3533, 87 L.Ed.2d 656 (1985); Francois v. State, 407 So.2d 885, 891 (Fla.1982), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982); Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977); State v. Rust, 250 N.W.2d 867, 874 (Neb.1977); cert. denied, 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198 (1977); State v. Goodman, 298 N.C. 1, 257 S.E.2d 569, 587 (1979). Such duplicate use of the same aggravator “fosters the very type of arbitrary and capricious decision-making that is constitutionally prohibited in a capital sentencing proceeding.” Davis, 794 P.2d at 221 (Quinn, C.J., dissenting).
Because a sentence of death is unique in both its severity and finality, an appellate court reviewing a death verdict is constitutionally obligated to closely review any colorable claim of error. Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (1983). The cumulative effect of the errors in this case, both those outlined by Justices Lohr and Kirshbaum in their dissents and those mentioned herein, cannot be resolved by resort to a harmless error analysis. These errors so impaired the reliability and certainty constitutionally mandated for a valid death verdict and so undermined the fairness of the capital sentencing hearing as to require that the death sentence be vacated.
The defendant challenged the propriety of instructing the jury on the "kidnapping” aggravator as one of many issues included in an appendix to his opening brief. Instruction No. 16 listed as two of the seven aggravating factors submitted to the jury for its consideration the following:
*999(a) The defendant intentionally killed a person kidnapped or being held as a hostage by him or anyone associated with him.
******
(f) The defendant committed a class one, class two, or class three felony and in the course of or in furtherance of the felony, he intentionally caused the death of a person other than one of the participants.
Instruction No. 18 informed the jury that second degree kidnapping is a class two felony.