dissenting:
In the death penalty cases that have reached this court, we have consistently emphasized the heightened degree of reliability and certainty necessitated by the unique and irrevocable nature of the death penalty. People v. Tenneson, 788 P.2d 786 (Colo.1990); People v. Drake, 748 P.2d 1237, 1254 (Colo.1988); People v. Durre, 690 P.2d 165, 173 (Colo.1984). In so doing, we have echoed the commands of the United States Supreme Court. See, e.g., Mills v. Maryland, 486 U.S. 367, 383-84, 108 S.Ct. 1860, 1869-70, 100 L.Ed.2d 384 (1988); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 303-05, 96 S.Ct. 2978, 2990-92, 49 L.Ed.2d 944 (1976). Because I do not believe that the sentencing phase of Frank D. Rodriguez’s trial contained sufficient guarantees of this required level of reliability and certainty, I respectfully dissent.
I.
In order to avoid violating the eighth amendment’s 1 proscription of cruel and unusual punishments, a capital sentencing scheme must meet at least two requirements. First, it must limit and direct the sentencing body’s discretion, e.g., Maynard v. Cartwright, 486 U.S. 356, 362, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988); Booth v. Maryland, 482 U.S. 496, 502, 107 S.Ct. 2529, 2532-33, 96 L.Ed.2d 440 (1987); Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980); Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932-33, 49 L.Ed.2d 859 (1976), thereby narrowing the class of persons eligible for the death penalty. Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988); Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). Second, it *1000must permit the sentencing body to consider any relevant mitigating evidence concerning the defendant’s character and background and the circumstances of the crime. E.g., Boyde v. California, — U.S. -, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990); Penry v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 2946, 106 L.Ed.2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 874-76, 71 L.Ed.2d 1 (1982).
In an effort to comply with these constitutional requirements, the Colorado legislature has adopted a sentencing procedure that includes four distinct steps.2 First, the jury must determine if at least one of the statutory aggravating factors exists. §§ 16-ll-103(2)(a)(I), -(6). Second, the jury must consider whether any mitigating factors exist. §§ 16-ll-103(2)(a)(II), -(5). Third, the jury must determine whether the mitigating factors outweigh the proven statutory aggravating factors. § 16-ll-103(2)(a)(II). Fourth, and finally, the jury must decide whether the defendant should be sentenced to death or to life imprisonment. § 16 — 11—103(2)(a)(III).3 I would hold that errors in the jury instructions governing each of these steps require reversal.
II.
The penalty phase instructions presented two erroneous aggravators to the jury: the especially heinous, cruel or depraved ag-gravator and the under sentence of imprisonment aggravator.
A.
The trial court submitted to the jury the statutory aggravating factor that “[t]he defendant committed the offense in an especially heinous, cruel, or depraved manner.” § 16-11-103(6)0), 8A C.R.S. (1986). This aggravating factor is violative of the eighth amendment under the United States Supreme Court’s holding in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). See also Godfrey, 446 U.S. at 428-29, 100 S.Ct. at 1764-65. The majority concedes this but concludes that the erroneous instruction presenting this aggravator to the jury as one of the criteria to be employed in deciding whether to sentence the defendant to death was harmless beyond a reasonable doubt. Maj. op. at 982-983.
I continue to adhere to my dissenting view in People v. Davis, 794 P.2d 159 (Colo.1990), that such a harmless error analysis amounts to “no more than a guess as to what the jury might have decided had it been properly instructed.” Id. at 225 (Lohr, J., dissenting); see also id. at 222 (Quinn, C.J., dissenting). The Colorado death penalty statute “requires a fact-finding jury to balance mitigating and aggravating circumstances in reaching its ultimate decision.” Id. at 230 (Kirshbaum, J., dissenting). It does not contemplate an appellate court determining whether a jury would have returned a death verdict had it been instructed on more narrowly defined aggravating factors. Such a determination would inevitably involve appellate courts in the weighing of redefined aggravating factors and mitigating factors for the first time on appeal. In fact, appellate courts in this state do not have the authority to conduct fact-finding. E.g., People in re D.G.P., 194 Colo. 238, 242, 570 P.2d 1293, 1295 (1977); Godfrey v. People, 168 Colo. 299, 301, 451 P.2d 291, 292 (1969). This court is not authorized to “engage in the type of credibility evaluation and evidentia-ry comparisons contemplated by the weighing process required by our death penalty statute.” Davis, 794 P.2d at 230 (Kirsh-baum, J., dissenting). The jury that has heard the testimony and seen the witnesses is the only body possessing adequate information and legal authority to find the facts and to make the difficult moral judgment required by the weighing process.
*1001Furthermore, the question under harmless error analysis is “whether the error substantially influenced the verdict or affected the fairness of the trial proceedings.” People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989); accord Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). In this case the error is of constitutional significance, and therefore, we must be satisfied beyond a reasonable doubt that it was harmless. Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S.Ct. 1792, 1798-99, 100 L.Ed.2d 284 (1988); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
In People v. Tenneson, we held that before sentencing a defendant to death, a jury must be convinced beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggra-vators. In so doing we demanded from the jurors a high level of confidence in their decision. I cannot now conclude, beyond a reasonable doubt, that the jury’s decision to impose the death penalty in the present case was unaffected by the invalid aggra-vator.
In support of its conclusion that submission of the invalid aggravator was harmless, the majority notes that the jury found five other statutory aggravators, that the defense counsel conceded that these aggravating factors had been proven beyond a reasonable doubt, that there was “overwhelming evidence supporting” those other five aggravating factors, and that the prosecution did not overly rely on the invalid statutory aggravator in its closing arguments. Maj. op. at 983. The majority’s first three contentions amount to a single reason: that the existence of five valid statutory aggravators makes the submission of a sixth invalid aggravator harmless.
I reject this proposition. The jury was instructed that under Colorado’s statutory scheme the weight, not the number, of the various factors is important. Some aggra-vators may have taken on far greater importance than others for particular jurors. A juror might for example have found the cruelty of the murder much more compelling than the fact that the murder occurred under circumstances that would legally amount to second-degree kidnapping. Under Colorado’s weighing statute, I do not believe that the mere number of valid statutory aggravators can compensate for the possible influence of a single invalid aggra-vator.
The majority’s final reason for concluding that the invalid aggravator was harmless is that the prosecution did not “overly stress or rely on” the invalid factor in its closing. In fact, the prosecution repeatedly emphasized what it argued to be the cruel, heinous and depraved character of this killing. The prosecution argued that these adjectives perfectly fit the defendant’s conduct and that this aggravating factor “has to weigh heavily in this case.” One of the prosecutors talked about the blood and violence associated with a killing by stabbing, referring to thrusting a knife in and out of soft human flesh and feeling the knife smash through tissue and arteries in the vital organs. He stated that the defendant “butchered” his victim, that the method of killing was “particularly despicable,” that it was a “gruesome,” “agonizingly slow” death, and that “[o]ne can hardly imagine a worse way to die.” The prosecution repeatedly emphasized the brutality of the rapes that preceded the victim’s death and invited the jurors to consider how disgusting it would be to be anally raped by the defendant. The prosecutors used the word “torture” eight times during their closing arguments. The prosecution argued that the defendant does “these cruel and heinous things ... because he enjoys them.” These characterizations of the defendant’s conduct are not relevant to other statutory aggravating factors, and the constant emphasis placed on them by the prosecution increases the likelihood that the invalid especially cruel, heinous or depraved aggravator influenced the jury. I am unable to conclude beyond a reasonable doubt that the erroneous submission of this instruction to the jury was harmless.
B.
The trial court submitted to the jury the aggravating factor that the defendant was *1002under sentence of imprisonment, see § 16-ll-103(6)(a), 8A C.R.S. (1986), because Rodriguez was on parole at the time of the murder.4 I continue to adhere to my dissenting view in People v. Davis, 794 P.2d 159 (Colo.1990), that this aggravator was not intended to include persons on parole. Id. at 226 (Lohr, J., dissenting); see also id. at 219-221 (Quinn, C.J., dissenting).
Several reasons support this interpretation. The principle of lenity requires a court to adopt the construction of an ambiguous criminal statute that favors the defendant. People v. Lowe, 660 P.2d 1261, 1267 (Colo.1983). A principal drafter of the death penalty statute testified before a legislative committee that this aggravator was intended to apply to “a person [who] is in prison serving a felony sentence and murders somebody.” Davis, 794 P.2d at ISO-181. Finally, the legislature’s subsequent amendment of this provision in 1988, adding the phrase “including the period of parole, or on probation,” § 16-ll-103(6)(a), 8A C.R.S. (1988 Supp.), indicates an intention to change the preexisting law. See Chames v. Lobato, 743 P.2d 27, 30 (Colo.1987) (“The general rule is that when a statute is amended, it is presumed that the legislature intended to change the law.”). These reasons are explained more fully in Davis, 794 P.2d at 226 (Lohr, J., dissenting).
III.
A capital sentencing statute must permit the sentencing body to consider any relevant mitigating evidence regarding the defendant’s character and background, and the circumstances of the offense. E.g., Boyde, 110 S.Ct. at 1196; Penry, 109 S.Ct. at 2946. The United States Constitution does not permit a capital sentencing scheme to require that the sentencing body unanimously agree upon the existence of mitigating factors before those factors are weighed against aggravating factors. McKoy v. North Carolina, — U.S. -, 110 S.Ct. 1227, 1229, 108 L.Ed.2d 369 (1990); Mills, 486 U.S. at 384, 108 S.Ct. at 1870.
The defendant argues that instruction no. 21 could have been misinterpreted by the jurors to require that they unanimously agree upon mitigators. It states in pertinent part:
If in the first two steps of your deliberations you have made unanimous findings that the prosecution has proven beyond a reasonable doubt that one or more aggravating factors exist and that no mitigating factors exist, or that a mitigating factor or factors exist, you must now decide whether the prosecution has proven that any factors in mitigation do not outweigh the aggravating factor or factors.
(Emphasis added.)
We considered an instruction identical in all respects relevant to the unanimity issue in People v. Davis, 794 P.2d 159, 194-196 (Colo.1990). I continue to adhere to the view expressed in my dissent from Davis that the ambiguity of this instruction makes it impossible to conclude that no reasonable juror could have interpreted it to require a unanimous finding that a particular mitigating factor existed before that factor could be taken into consideration in the weighing process required in step three of the jury deliberations.
The question is whether there is a “reasonable likelihood” that the jury interpreted the instruction in a constitutionally impermissible way. Boyde, 110 S.Ct. at 1198. If a reasonable person might derive an impermissible meaning from the instructions in a capital case, reversal is required. Andres v. United States, 333 U.S. 740, 752, 68 S.Ct. 880, 886, 92 L.Ed. 1055 (1948) (“In death cases doubts such as those presented here should be resolved in favor of the accused.”).
The majority states that “the only requirements of unanimity imposed by the instructions relate to the finding of specified aggravating factors and the verdict of *1003death” and that “[t]here was no affirmative instruction that the jury could not consider or give effect to a mitigating factor if the jury was not unanimous.” Maj. op. at 981. These conclusory statements ignore the defendant’s contention that instruction no. 21 may be interpreted to impose such a unanimity requirement.
The majority also emphasizes that no verdict form required the jury to indicate which mitigating factors it had found to exist, maj. op. at 980-981, and that the jurors were not instructed that they had to vote on the existence of mitigating factors. Maj. op. at 981. Although the instructions may not have explicitly called for such a vote, the instructions establish a four-step framework in which the jurors are told to decide which mitigating factors exist in step two and then to decide what weight to assign those factors in step three. Instruction no. 21 could be interpreted by a reasonable juror to mean that only those miti-gators unanimously found to exist in step two remain in consideration during the weighing process of step three. The various statements in the instructions that the jurors need not agree upon the weight they assign to particular mitigating factors do not contradict this interpretation.
IV.
I also believe that the instructions and verdict forms in this case do not comply with the requirements we enunciated in People v. Tenneson, 788 P.2d 786 (Colo.1990). In Tenneson, we held that the prosecution must convince the jury beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors and that death is the appropriate penalty.
Although there are two places in the instructions in which the law is correctly stated,5 the verdict forms and those portions of the instructions that provide detailed guidance to the jury in step three of its deliberations omit reference to the beyond a reasonable doubt burden. The relevant verdict form states:
We, the jury, find that there are insufficient mitigating factors to outweigh the aggravating factor or factors which have been proved by the prosecution beyond a reasonable doubt.
The paragraph of instruction no. 15 that explains step three of the jury deliberations states that “[i]f and only if the jury finds that one or more specified aggravating factors outweigh the mitigating factors, the jury then should proceed to the fourth step.”
Instruction no. 21 supplies the detailed guidance for the jury in conducting its step three deliberations. The instruction states in part:
If all jurors unanimously agree that there are no mitigating factors or there are not sufficient mitigating factors that outweigh the aggravating factor or factors found to exist, then the jury shall determine if death is the appropriate punishment in this case.
Nowhere in instruction no. 21 is the relevant burden of proof set forth.
In Tenneson, we wrote “[t]he qualitatively unique and irretrievably final nature of the death penalty ‘makes it unthinkable for jurors to impose the death penalty when they harbor “a reasonable doubt as to its justness.” ’ ” 788 P.2d at 792 (quoting State v. Bey, 112 N.J. 123, 548 A.2d 887, 903 (1988) (quoting State v. Biegenwald, 106 N.J. 13, 524 A.2d 130, 155 (1987))). We emphasized the enhanced *1004need for certainty and reliability in death sentencing proceedings. Id.; see also Drake, 748 P.2d at 1254; Durre, 690 P.2d at 173. I would hold that the failure of the verdict form and these instructions to comport with Tenneson, despite correct statements of the law elsewhere in the instructions, created an unacceptable risk that the jury did not consider the appropriate burden in its step three deliberations.
V.
The defendant argues that the jury instructions in this case improperly permitted the jury to consider nonstatutory aggravating factors in its step four determination of the appropriateness of the death penalty. The majority apparently concedes that the Colorado sentencing scheme limits the step four deliberations to considering the previously proven statutory aggravating factors along with any mitigating factors. Maj. op. at 985-986. The question, therefore, is whether the instructions in this case could have reasonably been interpreted to permit the jury to consider other factors.
Several of the instructions are relevant. Instruction no. 15 states:
The fourth step in your deliberations is to decide whether the defendant should be sentenced to death or life imprisonment. This decision is solely in your discretion.
(Emphasis added.) Instruction no. 16 states in part:
The first step in your deliberations is to consider whether one or more statutory aggravating factors is present. No other circumstances are sufficiently aggravating to support consideration of the death penalty in Colorado. Thus, no other aggravating circumstances shall be considered by you at any time during your deliberations.
Instruction no. 21 provides no guidance for the jury during its step four deliberations. It states simply that “then the jury shall determine if death is the appropriate punishment in this case.”
The relevant verdict form states in pertinent part:
Having found that _ aggravating factor(s) were proven beyond a reasonable doubt and based upon all the evidence presented, we further find that death is the appropriate punishment in this case beyond a reasonable doubt. (Emphasis added.)
The ambiguity of these instructions and the omission of any detailed instruction to guide the jury's deliberations in step four is of particular concern in light of the non-statutory factors emphasized by the prosecution in its closing argument. For example, the prosecution mentioned that the defendant might someday escape if he were sentenced to prison, and that in committing the murder the defendant had engaged in “conduct rarely seen in Colorado.” The prosecution also told the jury about the amenities available in prison at Canon City, how “[njobody wants to support this man for the rest of his life,” and that he “does not have that spark of humanity we all must have to live.”
I would hold that the limited guidance provided by the instructions combined with the prosecution's discussion of non-statutory aggravating factors in its closing arguments created an unacceptable risk that the jury's decision was influenced by factors that are not comprehended among those that properly may be considered under Colorado's statutory scheme.
VI.
In light of the heightened reliability we have consistently demanded in death sentencing procedures, I would hold that the errors discussed above, singly and in combination, sufficiently undermine the fairness and certainty of the death sentence returned in this case to require reversal. I would reverse the sentence of death and return the case to the trial court with directions to impose a sentence of life imprisonment.
QUINN, C.J., joins in this dissent, and KIRSHBAUM, J., joins in part 11(A) of this dissent.
. U.S. Const, amend. VIII. The Colorado Constitution also prohibits cruel and unusual punishments. Colo. Const, art. II, § 20.
. § 16-11-103 was amended substantially on April 11, 1988. Ch. 114, secs. 1 and 2, § 16-11-103, 1988 Colo.Sess.Laws 673-75.
. These four steps are described in greater detail in People v. Tenneson, 788 P.2d at 789.
. The defendant raised this issue in the trial court but on appeal presented it only generally in a list of additional issues contained in an appendix to his opening brief and by mention in his reply brief.
. Instruction no. 3 states in part:
In order to return a verdict of death, you must be convinced beyond a reasonable doubt that a mitigating factor or factors do not outweigh any aggravating factors found to exist and that the death penalty is the appropriate penalty.
Instruction no. 15 states in part:
Colorado law allows the death penalty only if the prosecution ... proves heyond a reasonable doubt that:
1. One or more of the specified aggravating factors exist beyond a reasonable doubt; and
2. No mitigating factor or factors exist; or
3. No mitigating factor or factors outweigh the aggravating factor or factors found to exist beyond a reasonable doubt; and
4. That death is the appropriate punishment in this case.