dissenting and concurring.
I.
I dissent for the reasons stated in my dissenting opinion in State v. Moen, 309 Or 45, 102-04, 786 P2d 111 (1990) (Fadeley, J., dissenting). Following its decision in Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989), the United States Supreme Court vacated an Oregon death penalty sentence, because of inadequacy in Oregon’s statutes describing the method whereby a jury determines whether life imprisonment or death will be the sentence imposed. Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989).
The statute found inadequate, ORS 163.150 (1987), was proposed by the initiative process and adopted by the *293voters in 1984. On vacation of sentence and Wagner’s remand to Oregon by the United States Supreme Court, the Oregon Supreme Court majority reacted by á decision to save the initiated statute by adding a 100-word amendment. See State v. Moen, supra, 309 Or at 102-04 (dissenting opinion), and State v. Wagner, 309 Or 5, 20, 786 P2d 93 (1990) (dissenting opinion). After making the statutory amendment, the majority of this court then remanded Wagner to the trial court for a new jury trial of the penalty phase to determine whether the new sentence should be life imprisonment or a death sentence. The statute was found to be inadequate but, with the addition of the majority’s 100-word amendment, is to be used for the new trial.
I continue to dissent from the decision of the majority to make an after-the-fact addition to the statute that the people did not include when they voted to adopt the statute. I also object to the attendant delay of finality and the added cost which that delay produces. The United States Supreme Court decision vacated the sentence of death but not Wagner’s conviction on his plea of guilty to an aggravated murder committed in 1985. He could have been sentenced to a life term immediately and that case would have been closed.1 Likewise, in the present case, a life sentence should be imposed on the defendant in this court and this case should be closed. Instead, the majority remands for a new penalty-phase jury trial.
II.
Assuming that the local authorities elect to retry this case on remand, I am mindful of the fact that 12 new jurors who have not previously been exposed to the case will make the life or death decision by the answers they give to questions posed by the statute as amended by the majority. I am also mindful that these jurors will be told at the beginning of the retrial proceedings that defendant has already been convicted of aggravated murder and is, therefore, eligible to be put to death and that they are required to accept that as a given fact.
I disagree with the portion of the majority opinion in this case that relates to the propriety of instructing the jury *294about its life sentence options. The grounds for disagreement are stated in State v. Douglas, 310 Or 438, 454, 800 P2d 288 (1990) (specially concurring opinion), and State v. Simonsen, 310 Or 412, 418, 798 P2d 241 (1990) (specially concurring opinion). See also Caldwell v. Mississippi, 472 US 320, 105 S Ct 2633, 86 L Ed 2d 231 (1985).
I believe that the jury must be told directly both that it has the option to choose a life sentence rather than the death sentence and that the answers that the jury gives to the questions on the verdict form determine whether the sentence is life or death; otherwise, the constitutional requirements of Penry and Caldwell may not be met. Hiding the ball from the jury as sentencer is not tolerable.
III.
I concur with the decision of the court that the remaining penalty-phase assignments of error need not be dealt with because it is presently problematical as to how the issues that the remaining assignments raise will be played out on remand. I am not, however, as sure as the majority that closely kindred issues “doubtless will arise on remand.” Those issues, as to which neither the present record nor appellate arguments are complete or clear, involve complex issues under OEC 401-404, and 701-703, among other issues.
For instance, I do not believe it is at all likely that evidence will be admitted on remand, over an OEC 403 objection of undue prejudice, without the trial court’s performing the “prerequisite” balancing before admission under State v. Pinnell, 311 Or 98, 113, 806 P2d 110 (1991). Nor do I believe that a lay witness necessarily will be again permitted to testify as an expert giving an opinion under OEC 703, bearing on character under OEC 404, based upon movies that defendant watched, or upon a comparison of defendant’s interests with those of Adolf Hitler and Charles Manson.
Whether the predicates for these sorts of issues will recur on remand, and the exact nature of those issues if they reappear, is sufficiently problematical that the issues are best left to await another day.
While this is being written, the public was informed that a life sentence will be imposed on Mr. Wagner, obviating a retrial of the penalty phase in his case. The same result was ultimately reached on remand of State v. Moen, 309 Or 45, 786 P2d 111 (1990).