dissenting:
I join part 11(A) of Justice Lohr’s dissent. The trial court instructed the jury that one of the aggravating factors relied upon by the prosecution was the “especially heinous, cruel and depraved manner” in which the crime was committed. This particular aggravator has been declared violative of eighth amendment standards by the United States Supreme Court in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), by this court in People v. Davis, 794 P.2d 159 (Colo.1990), and now by the majority in this case. Maj. op. at 982, 983. The majority then declares that the trial court’s violation of every citizen’s fundamental right to be protected from cruel and unusual punishment must be deemed harmless error because the evidence established five other aggravating factors and because if properly instructed the jury would have found “that the murder was ‘conscienceless or pitiless, and [was] unnecessarily torturous to the victim.’ ” Maj. op. at 984.
In my view, the majority misapplies Clemons v. Mississippi, — U.S. -, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the case upon which it purports to rely. In Clemons, the Supreme Court held that the Mississippi Supreme Court, which apparently possesses authority to weigh or balance evidence on appeal, could, consistent with federal constitutional standards, undertake a re-weighing process itself to determine if, absent the unconstitutional aggravator, the jury would nonetheless have imposed a sentence of death. 110 S.Ct. at 1449. The court then reversed the judgment and remanded the case for further proceedings because it could not determine whether, if appellate re-weighing had occurred, the state appellate court “sufficiently emphasized the importance of the sentencer’s consideration of a defendant's mitigating evidence.” Id. at 1450. The court also opined that in some circumstances a harmless error analysis might pass constitutional muster and remanded the case for the further reason that it could not determine what harmless error analysis, if any, the state appellate court had applied. Id. at 1451.
I assume that the majority has elected not to perform any appellate re-weighing of the evidence, although its references to this court’s recent decision in People v. Davis, 794 P.2d 159 (Colo.1990), cast doubt on this assumption. I continue to believe that any appellate re-weighing of evidence is beyond the appellate authority of this court, especially in capital cases, where the General Assembly has carefully allocated to the factfinder the sole authority to impose a sentence of death. See Clemons v. Mississippi, 110 S.Ct. at 1447; Hicks v. Oklahoma, 447 U.S. 343, 345-46, 100 S.Ct. 2227, 2228-30, 65 L.Ed.2d 175 (1980); see People v. Davis, 794 P.2d 159 (Colo.1990), (Kirshbaum, J., dissenting).
In stating that the trial court’s constitutional error was harmless, the majority initially observes that the evidence admissible to establish the unconstitutional aggravator was also admissible to establish five other aggravators. Maj. op. at 983. The majority also suggests that if an instruction properly limiting the unconstitutional aggravator had been given, the evidence would have established the existence of such newly defined aggravator. Maj. op. at 984. The question under our balancing statute is not what evidence was properly admitted, or what facts were or probably would have been established beyond a reasonable doubt. The ultimate question is whether and, if so, how an appellate court can determine that one juror did not beyond a reasonable doubt give impermissible weight to the unconstitutional aggravator the jury was instructed to consider. The suggestion that the existence of five other aggravators satisfies constitutionally-based concerns about the propriety of the jury’s weighing process contravenes our death penalty statute. Under that statute, as the trial court’s instructions properly stated,1 a *1006sentencing jury must not be influenced by the number of aggravating or mitigating factors established by the evidence when weighing such factors. See maj. op. at 973; People v. Tenneson, 788 P.2d 786 (Colo.1990).
As this court pointed out in People v. Tenneson, 788 P.2d at 790, the question in this jurisdiction under our balancing statute is whether the jury, having found a properly defined aggravator, could then conclude beyond a reasonable doubt that any mitigating factors did not outweigh the aggravating factors. To determine that the jury here would have found as a fact a matter about which it was never instructed — that the murder was conscienceless or pitiless — and then determine that the jury would have reached the same result in the absence of the instruction it was given is in effect to require this court to perform fact-finding and balancing functions the General Assembly has committed to the sole discretion of the finder of fact. This form of analysis, whether denominated harmless ' error or re-weighing, turns this court into a super-jury in appeals from sentences in capital cases. I find no statutory authority or common law precedent for such result.
I also disagree with the majority’s conclusion that the prosecution did not overly emphasize this particular aggravator. Maj. op. at 983. From its initial comment on the evidence (“This sort of conduct is rarely seen in Colorado”) through its reference to the weight to be given this aggravator (“Of course, that aggravator applies to this case. It has to weigh heavily in this case; the cruel heinous nature of the way he killed her.”) to its final summation (“Remember all the things you heard about that terrible murder and add to it all the aggravating factors”), the prosecution emphasized the brutal nature of the defendant’s admittedly vicious conduct. The prosecution was justified in doing so at trial because the trial court had informed the jury that it could consider the especially heinous, cruel, and depraved factor and could conclude that this particular factor alone outweighed all mitigating factors. The instructions were erroneous, however, and I cannot conclude beyond a reasonable doubt either that no juror reached his or her decision by following these instructions or that every juror would have reached the same decision if different instructions had been given.
For the foregoing reasons, I respectfully dissent.
I am authorized to say that Chief Justice QUINN and Justice LOHR join in this dissent.
. Instruction No. 21, as submitted to the jury contains the following statements:
In the third step of your deliberations you must weigh the aggravating factor or factors found to exist against any and all mitigating factors. This is not a mere counting process in which aggravating factors are weighed against mitigating factors. Rather, it is a pro*1006cess in which you must apply your reasoned judgment in deciding whether the situation calls for life imprisonment or requires the imposition of the death penalty, in light of the totality of the circumstances present.
The number of factors found is not determinative. The jury may emphasize one factor more than another in a particular case. You must consider the relative substantiality and persuasiveness of the existing aggravating and mitigating factors in making this determination.