concurring in part and dissenting in part.
While I concur in the majority’s affirmance of appellant’s conviction, I respectfully dissent to the majority’s affirmance of appellant’s death sentence.
1. Appellant contended at trial and on appeal that the trial court erred when it refused to instruct the jury at the sentencing phase that the jury could not recommend imposition of a death sentence if it found by a preponderance of the evidence that appellant was mentally retarded. Appellant’s proposed instruction was in accord with our decisions in Fleming v. Zant, 259 Ga. 687 (386 SE2d 339) (1989), and Zant v. Foster, 261 Ga. 450 (406 SE2d 74) (1991). In Fleming, we addressed the contention that Fleming’s death sentence violated the federal and state constitutional guarantees against imposition of cruel and unusual punishment, and concluded that the Georgia constitutional guarantee forbade the execution of a mentally retarded person. We determined that imposition of a life sentence upon a finding by a preponderance of the evidence that a defendant was mentally retarded ensured that guarantee. See also Zant v. Foster, supra at Division 5. The majority now attempts to distinguish the holdings in Fleming and Foster on the ground that they were habeas corpus cases brought by defendants convicted prior to the enactment of OCGA § 17-7-131 (c) (3). However, that purported distinction does not stand up under close scrutiny — in both Fleming and Foster, the case was remanded to give the defendant a full evidentiary hearing on the issue of retardation before a jury in the court in which the original *794trial was conducted. Having been granted that evidentiary hearing, Fleming and Foster stood, procedurally, on equal footing with the defendants tried after the passage of § 17-7-131 (c) (3). But this court went a step further and, applying constitutional principles, held that Fleming and Foster would be sentenced to life imprisonment if they established retardation by a preponderance of the evidence. The majority today does not explain why the constitutional reasoning applicable to Fleming and Foster is not applicable to Burgess.
The majority now sets forth that OCGA § 17-7-131 (c) (3) and (j) provide the legislative framework for implementation of Georgia’s public policy that execution of mentally retarded persons violates the prohibition against cruel and unusual punishment. However, that legislative framework was in place at the time of the Fleming decision in 1989 (see Ga. L. 1988, p. 1003, § 1), and this court recognized its existence. Fleming v. Zant, supra at 687-688. Aware of the legislatively-established “beyond a reasonable doubt” standard of proof, this court concluded it was cruel and unusual punishment to execute anyone who had established by a preponderance of the evidence that he was mentally retarded. See id. at Division 4. In reaching that conclusion, this court either implicitly held the legislatively-enacted beyond a reasonable doubt standard was unconstitutional, or envisioned a two-step procedure to ensure that Georgia did not execute a mentally retarded person. Because I am reluctant to endorse the concept of implicit holdings of unconstitutionality, I take the position that the Fleming court’s setting of “preponderance of the evidence” as the constitutional standard was an effort to establish a two-tiered jury determination concerning a defendant’s claim of mental retardation.
OCGA § 17-7-131 (c) (3) states:
The defendant may be found “guilty but mentally retarded” if the [factfinder] finds beyond a reasonable doubt that the defendant is guilty of the crime charged and is mentally retarded. If the [factfinder] should make such finding, it shall so specify in its verdict.
The trial court’s charge during the guilt/innocence phase accurately reflected the statutory requirement that mental retardation beyond a reasonable doubt must be found before a jury can return a verdict of guilty but mentally retarded and thereby effectuate the statutory preclusion of the death penalty found in OCGA § 17-7-131 (j).
However, at the sentencing phase, we must be cognizant of the constitutional preclusion of the death penalty. In Fleming v. Zant, supra, we held that “the execution of mentally retarded offenders violates the Georgia constitutional guarantee against cruel and unusual punishment.” See also Zant v. Foster, supra. During the sentencing *795phase, the jury may not be precluded from considering any aspect of the defendant’s character or personal history in mitigation. Romine v. State, 251 Ga. 208 (11) (305 SE2d 93) (1983). This includes evidence bearing on the issue of the defendant’s mental retardation. A jury’s finding of guilt beyond a reasonable doubt “does not necessarily mean that no juror entertained any doubt whatsoever.” Cook v. State, 255 Ga. 565, 586, n. 11 (340 SE2d 843) (1986). A juror may find no “reasonable” doubt, yet some degree of doubt persists. Such a doubt benefits the defendant in the penalty phase of trial, “for the juror entertaining doubt which does not rise to reasonable doubt can be expected to resist those who would impose the irremedial penalty of death.” Id. See also Wade v. State, 261 Ga. 105, 110 (401 SE2d 701) (1991) (Clarke, C. J., dissenting). Similarly, a juror’s determination during the guilt/innocence stage of trial that the defendant did not prove mental retardation beyond a reasonable doubt does not preempt during the sentencing phase a finding that the defendant was sufficiently mentally retarded to preclude, under constitutional standards, the imposition of the death penalty. A juror may conclude that some degree of mental retardation exists and should be able to consider this proof of retardation during the penalty phase of trial, and to perhaps “resist those who would impose the irremedial penalty of death.” Cook, supra, 255 Ga. at 586, n. 11. Should the jury find by a preponderance of the evidence that the defendant is mentally retarded, imposition of the death penalty is constitutionally prohibited. Fleming v. Zant, supra.
Appellant, who unsuccessfully raised the issue of mental retardation during the guilt/innocence phase of trial, was entitled to present evidence of mental retardation as a mitigating circumstance during the sentencing phase, and was entitled to an instruction informing the jury that a sentence of death could not be recommended if it had been established by a preponderance of the evidence that appellant was mentally retarded. Such an instruction would have been in line with our determination that the constitutional prohibition against cruel and unusual punishment requires that the defendant be sentenced to life imprisonment should it be determined by a preponderance of the evidence that he is mentally retarded. Fleming v. Zant, supra at Division 4.
2. I also disagree with the majority’s conclusion that the trial court’s failure to give appellant “potentially mitigating” evidence from his DFACS file was “harmless at most.” While the court, as a whole, would agree that the interest for keeping DFACS records confidential does not outweigh a capital defendant’s need for access to potentially mitigating evidence (Pope v. State, 256 Ga. 195 (22) (345 SE2d 831) (1986)), I cannot agree that the failure to disclose potentially mitigating evidence is harmless error.
*796“[A]n individualized sentencing decision is essential in capital cases. [Cit.]” Conner v. State, 251 Ga. 113 (5) (303 SE2d 266) (1983). Georgia’s death penalty statute provides that any mitigating circumstance authorized by law must be considered by the jury in reaching that individualized decision. OCGA § 17-10-30 (b). Any aspect of the defendant’s character or personal history is ripe for consideration by the sentencing jury. Romine v. State, supra at Division 11. The United States Supreme Court has determined that “the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character. . . .” Eddings v. Oklahoma, 455 U. S. 104, 110 (102 SC 869, 71 LE2d 1) (1982); Lockett v. Ohio, 438 U. S. 586 (98 SC 2954, 57 LE2d 973) (1978). This court has recognized that Lockett and Eddings “impose a severe limitation upon the trial court’s authority to exclude evidence offered by defendants in the sentencing phase of a death penalty case.” Blankenship v. State, 251 Ga. 621, 624 (308 SE2d 369) (1983). Taken together, OCGA § 17-10-30 permits the deféndant to present evidence as to any mitigating circumstances, and Lockett and Eddings require the sentencer to listen. Eddings v. Oklahoma, 455 U. S. at 115, n. 10.
The trial court’s failure to give trial counsel “potentially mitigating” material from the confidential DFACS records amounted to the trial court’s improper exclusion of that mitigating evidence from the sentencing jury. The majority forgives the improper exclusion of the mitigating evidence because the defendant had knowledge of the childhood experiences since he had lived through them, because appellant did not state how he would have used the undisclosed confidential information had it been disclosed to him, and because appellant’s experts had access to the DFACS file. If personal experience obviates the need for disclosure of confidential material, we can disband the trial court’s in camera review of confidential files since death penalty defendants generally seek their own records in search of mitigating circumstances. Second, a death penalty defendant is under no duty to explain how he would use mitigating evidence — since he is entitled to present any evidence of mitigating circumstances to the jury, it is not necessary that he disclose how he would use material to which he is entitled. Finally, the “expert” who needs access to evidence in mitigation is the death penalty defendant’s lawyer. Whatever access testifying experts had to the confidential files, it is not the equivalent of an attorney reviewing mitigating evidence and planning how best to present such evidence to the jury.
In sum, I am of the opinion that appellant is entitled to a new sentencing trial. As a result, I part ways with the majority which concludes that the sentencing phase of appellant’s trial is free of reversible error.
*797Decided December 5, 1994 — Reconsideration denied December 20, 1994. John R. Martin, Edwards & McLeod, Jennifer McLeod, for appellant. David McDade, District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige M. Reese, Assistant Attorney General, for appellee.