concurring in part and dissenting in part:
I concur in the majority’s affirmance of the guilt phase of these proceedings. However, I dissent to Part V because I do not agree with the majority’s reversal of the penalty phase. After review of the voir dire, closing arguments, jury instructions, and the jury’s verdict, I disagree with the majority’s conclusion that the jury did not understand its responsibility. In affirming the penalty phase, I would uphold the constitutionality of Colorado’s death penalty statute, as well as the constitutionality of its application to this defendant.
L
THE PENALTY PHASE
Review of relevant portions of the record includes analysis of the ante-voir dire instruction and the judge’s voir dire statements, remarks made by the prosecutor in closing argument, and the jury instructions.
In People v. Durre, 690 P.2d 165 (Colo.1984), this court reversed the penalty phase in a capital case because of the jury’s demonstrated misunderstanding of its responsibility, and of the effect of its penalty phase votes. In the penalty phase in Durre, the jury returned the verdict forms with a note attached. This note explained to the judge that the jury had reached a vote of seven to five in favor of the death penalty. Based on those facts, we held that “[t]he jury note, when viewed in the context of the instructional deficiency present here, manifests a significant degree of uncertainty on whether all twelve jurors actually concurred.” Id. at 174.
In the case before us, the issue is whether the jurors were misled into believing that their votes would not determine whether the death sentence was appropriate punishment for this defendant. Unlike Durre, in this case there is no manifestation of “a significant degree of uncertainty.” No facts are presented by either side, or reflected in the record, to suggest the uncertainty that was demonstrated in Durre. Lacking a basis in the record, I disagree with the majority’s conclusion that the jury did not understand what it was doing when it voted that three aggravating factors and no mitigating factors had been established. It is the “fact-finding jury, and not the court, that decides whether there are additional mitigating circumstances sufficient to justify a sentence of life imprisonment rather than death.” Id. at 172 (footnote omitted). In carrying out this role, the jury’s task is to “ ‘express the conscience of the community on the ultimate question of life or death.’ ” Id. (quoting Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968)). Because I believe the majority is impermissibly substituting its interpretation of the facts for the conclusion reached by the jury as the factfinder and sentencer, I dissent from the majority’s holding as to the penalty phase.
*1271 A.
Voir Dire and the Ante-Voir Dire Instruction
Before voir dire can begin in a death penalty case, the judge must give the jury panel a specific instruction regarding the death penalty. At the time of the Drake trial, this ante-voir dire instruction was controlled by our holding in People v. District Court, 190 Colo. 342, 546 P.2d 1268 (1976) (hereinafter District Court I). In District Court I, we described the purpose of the ante-voir dire instruction and provided the following recommended form for such an instruction:
In the event that the defendant is found guilty as charged in [description of charge in information or indictment], there will follow a second hearing before the same jury. Evidence may be introduced at this hearing. At the conclusion of the hearing certain questions will be submitted to the jury to take to the jury room for deliberation and response. After these questions have been answered and, depending upon the answers as prescribed by law, the judge will sentence the defendant either to life imprisonment or death.
The sentence of the judge will be dependent upon the answers of the jury and, while the jury may not be fully advised as to the effect of any particular answer or group of answers, the People and the defendant have the right to examine you as prospective jurors within appropriate limits as to your views on capital punishment.
District Court I, 190 Colo. 342, 346, 546 P.2d 1268, 1271 (1976) (emphasis added).
The Drake jury panel received the following ante-voir dire instruction:
In this case, the People are asking for the imposition of the death penalty. This is a capital case. In the event that the defendant is found guilty as charged in the Information, there will follow a second hearing before the same jury. Evidence may be introduced at this hearing and at the conclusion of the hearing, certain questions will be submitted to the jury to take to the jury room for deliberation and response. After these questions have been answered and depending upon the answers as prescribed by law, the Judge will sentence the defendant either to life imprisonment or to death.
(Emphasis added.) Comparing the language of the Drake instruction to the instruction in District Court I, I believe that this jury was adequately advised prior to voir dire. Although the Drake instruction is not identical to the District Court I instruction, it provided the necessary explanation of the role of the jury in the sentencing phase. The instruction served to “enable counsel to determine whether any prospective jurors” had beliefs which would cause them to prevent the defendant from obtaining a fair trial. District Court I, 190 Colo, at 346, 546 P.2d at 1271. The language of the instruction was substantially similar to the recommended instruction, and served the express purpose of such an instruction. There is no significant concept or statement rendering the Drake instruction inadequate. The potential jurors were properly advised of the nature of the case when voir dire began, and the voir dire instruction was not erroneous.
The other procedure affecting the jury’s understanding of its role was the questioning of individual jurors during voir dire, and statements made to the jurors by the judge about the jurors’ roles. Two representative statements to the individual jurors are as follows: “[B]ased upon your answers to those questions, the court will either impose the death penalty or prison”, and “based upon your answers to [certain questions], the court will impose the death penalty or life imprisonment as the answers dictate.” These voir dire statements served to again educate the jury about its role. The potential jurors had the benefit of hearing this type of explanation repeated to each individual juror. There is no evidence in the record supporting the conclusion that any juror was misled or confused.
*1272“[T]he ‘obvious thing’ for the jury to have done if unanimity existed on the verdicts would have been to return the verdict forms appropriately signed with nothing more.” Durre, 690 P.2d at 174-75 (quoting People v. Yeager, 170 Colo. 405, 409, 462 P.2d 487, 489 (1969)) (emphasis added). The jury here did “the obvious thing” by returning signed verdict forms, with nothing more. Id. In the absence of any manifestation of confusion, it is not our role to read into the record confusion or uncertainty on the part of the jury.
B.
Closing Arguments
The defendant contends that the prosecutor’s use of the phrase “shared responsibility” in closing argument so misled the jury as to invalidate the penalty phase. I disagree.
The majority reverses the jury’s unanimous verdict based on the law in People v. Durre, 690 P.2d 165 (Colo.1984), majority op. at 1254-1258, and Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed. 2d 231 (1985), majority op. at 1258-1260. In Caldwell, the United States Supreme Court vacated the defendant’s death sentence because the prosecutor told the jury during closing argument that it could shift its responsibility to an appellate court. 472 U.S. at 330, 105 S.Ct. at 2640. The prosecutor’s statement was: “[Y]our decision is not the final decision_ Your job is reviewable ... [T]he decision you render is automatically reviewable by the Supreme Court.” Id. at 325-26, 105 S.Ct. at 2638. The Court held that these statements required vacation of the penalty phase because the prosecutor had impermissibly advised the jury that it could shift its sentencing responsibility elsewhere.
In so holding, the Court distinguished its earlier holding in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). In Ramos, the trial court gave the so-called Briggs instruction, advising the jury that a sentence of life imprisonment without parole could be commuted by the Governor of California to a sentence that could include the possibility of parole. 463 U.S. at 995,103 S.Ct. at 3450. The petitioner in Ramos argued that this instruction violated the United States Constitution, but use of the Briggs instruction was upheld by the Court as “merely an accurate statement of a potential sentencing alternative.” Id. at 1009, 103 S.Ct. at 3457. The Court distinguished Ramos from Caldwell by saying that the statement [in Caldwell ] regarding appellate review was neither accurate nor relevant. Caldwell, 472 U.S. at 335, 105 S.Ct. at 2643. In Caldwell, it was held “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” 472 U.S. at 328-29, 105 S.Ct. at 2639. The majority deems it an “inescapable ... conclusion that doubt or speculation” exists in this case. Majority op. at 1257. I believe this conclusion is incorrect, viewing the record as a whole.
During closing arguments, the prosecutor in Drake stated: “[Y]ou will understand the responsibility that you have and I am not going to pound you over the head about the awesomeness of it....” He also said: “[T]his is a law that was passed here in our state and ... you are to make a factual determination based on the evidence here.” The prosecutor used this “shared responsibility” language twice in reminding the jurors that their responsibility was to apply the law as written. In rebuttal, the prosecutor referred to the jury’s “shared responsibility” by saying: “I would again like to remind you that what you have is a shared responsibility. This is the law in our state that was passed. You are not alone. This case would not be here but for the actions of the police and it would not be here but for the actions of the prosecution....”
The determination of whether improper remarks are made during closing argument *1273depends on “the nature of the comment and on whether the jury’s attention has been directed to something which it is not entitled to consider.” People v. Constant, 645 P.2d 843, 846, cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982). The meaning and effect of particular remarks made in a prosecutor’s closing argument must be evaluated in the context of the evidence, and the closing argument as a whole. People v. Gutierrez, 622 P.2d 547 (Colo.1981); People v. Marin, 686 P.2d 1351 (Colo.App.1983). In the specific context of capital sentencing, the United States Supreme Court has reversed a death penalty verdict on the grounds of substantial unreliability “when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court.” Caldwell, 472 U.S. at 330, 105 S.Ct. at 2640.
Defense counsel did not object to the “shared responsibility” remarks made during closing argument, so plain error is the standard of review. The plain error standard is “whether an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” Wilson v. People, 743 P.2d 415, 420 (Colo.1987).
The language of these remarks served to remind the jurors of their duty to apply the law, as written by the Colorado legislature, to the facts presented at trial. I believe the prosecutor’s “shared responsibility” statements were accurate and not misleading, when considered in their context.1 Reminding the jury that the legislature was responsible for reenacting the death penalty statute was an accurate statement. Comparing Caldwell and Ramos to this case, I believe the remarks here are controlled by Ramos because the remarks were accurate and relevant in describing the jury’s role. The prosecutor did not tell the jury that it could shift its responsibility elsewhere; he told the jury that it was to make a factual determination and to apply “a law that was passed here in our state.” These statements did not direct the jury’s attention “to something which it is not entitled to consider.” Constant, 645 P.2d at 846. On that basis, I do not believe the statements made in closing argument justify reversal.
c.
Jury Instructions and The Jury Verdict Form .
I dissent because I believe that the instructions and jury verdict form are adequate under People v. Durre, 690 P.2d 165 (Colo.1984).2 The majority relies almost exclusively on the jury verdict form and instructions in concluding that the penalty phase cannot stand under Durre.
In Durre, the trial court failed to inform the jury during the penalty phase as to the effect of their votes on aggravating and mitigating factors. The jurors returned a note with their verdict forms, explaining to the judge that they had arrived at a vote of seven to five in favor of the death penalty. Based on this unmistakable showing of confusion, we held that “[t]he jury note, when viewed in the context of the instructional deficiency present here, manifests a significant degree of uncertainty on whether all twelve jurors actually con*1274curred in the finding.” Id. at 174 (emphasis added). Durre requires that a jury be instructed “regarding the effect of their verdicts on the issue of punishment,” and we set forth a recommended instruction for use in future cases:
If your verdicts are that no mitigating and no additional mitigating circumstances exist, and further that one or more aggravating circumstances exist, then the court has no discretion whatever on the matter of penalty and must sentence the defendant to death; if, on the other hand, your verdicts are that one or more of the mitigating or additional mitigating circumstances exist, or that none of the aggravating circumstances exist, then the court has no discretion whatever on the issue of punishment and must sentence the defendant to life imprisonment.
Id. at 174 n. 15.
Our ruling in Durre post-dated the Drake trial, so the trial judge in Drake did not have the advantage of the recommended instruction when he advised the jury. The jury verdict form given in Drake utilized the statutory language and the pattern instructions. The form stated in part: “YOU MAY CONSIDER ANY FACTOR INCLUDING BUT NOT LIMITED TO THE FOLLOWING, IN DECIDING WHETHER A SENTENCE OF LIFE IMPRISONMENT RATHER THAN DEATH IS JUSTIFIED” and “We, the Jury, having considered all of the evidence, find one or more mitigating factors justifies the sentence of life imprisonment rather than death.” The jurors were thus advised that their vote on mitigating factors would determine whether the defendant received a sentence of life imprisonment or death.
The jury was not instructed with the specific language later recommended in Durre. Durre requires that an instruction be given “in the following or similar terms,” and that the instruction tell the jury “about the effect of their verdicts on the life and death decision that the jurors were being required to make.” Durre, 690 P.2d at 174 n. 15. I believe the instruction given here meets this requirement, because it adequately advised the jury as to the “effect of their verdicts.” Id. This protects the reliability of the verdict as discussed in Durre, especially in light of the language of the jury verdict form and the unequivocal nature of the jury’s votes. The jury was adequately advised; to hold otherwise would be to elevate form over substance.
D.
In summary, this case presents none of the factual circumstances which justified reversal of the death penalty in other cases. Durre involved a jury that unequivocally demonstrated its confusion when it returned a verdict form with a note attached indicating a seven to five vote. Caldwell involved repeated statements by the prosecutor that the jury need not consider its decision final because the sentence was subject to automatic appellate review. The facts like those in Durre and Caldwell demonstrate the type of confusion or misleading of a jury that requires reversal in a capital case.
“While technical perfection in the deliberative process is not demanded and is often an impossibility, the severity of the death sentence does mandate ‘careful scrutiny in the review of any colorable claim of error.’ ” Durre, 690 P.2d at 173. The jurors’ responses to the determinative questions on the jury verdict form reflected their application of the law to the facts before them. “ ‘[Ojne of the most important functions any jury can perform in making ... a selection [between life imprisonment and death for a defendant convicted in a capital case] is to maintain a link between contemporary community values and the penal system.’ ” Gregg, 428 U.S. at 181, 96 S.Ct. at 2929 (citing Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15, 88 S.Ct. 1770, 1775 n. 15, 20 L.Ed.2d 776 (1968). Because I believe the record shows that the jury understood the import of its penalty phase votes, I disagree with the majority’s reversal of the verdict. The jury did not *1275demonstrate any confusion before, during, or after the trial and penalty phase, and it was adequately advised under the existing law. Their conclusion is reflective of the jury’s function in applying objective standards to arrive at a penalty reflective of “contemporary community values.”
II.
Because I would uphold the jury’s verdict in the guilt phase, I necessarily address the constitutionality of Colorado’s death penalty statute, section 16-11-103, 8A C.R.S. (1986).
Following the United States Supreme Court’s 1972 decision in Furman v. Georgia, the legislatures of thirty-seven states have enacted or reenacted legislation providing for imposition of the death penalty when a defendant is convicted of first degree murder. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (death penalty statute is not per se unconstitutional, but may be applied in an unconstitutional manner); Rosen, The “Especially Heinous” Aggravating Circumstances in Capital Cases — The Standard-less Standard, 64 N.C.L.Rev. 941 (1986) (hereinafter cited as Rosen).
In 1976, the Supreme Court reviewed the constitutionality of five of these post-Fwr-man death penalty statutes. The lead case was Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), followed by Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed. 2d 929 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Mandatory sentencing schemes were struck down in Roberts and Woodson because the statutes’ requirements that “the death penalty be imposed on all defendants convicted of a specified category of murder” was violative of the eighth amendment of the United States Constitution. Rosen at 947 (footnote omitted).
In contrast to mandatory sentencing, the death penalty statutes in Florida, Georgia, and Texas, like our Colorado statute, “allow the sentencer to impose the death penalty under standards provided by the legislature.” Id. (footnote omitted). Addressing these statutes, which allow but do not require imposition of the death penalty, the Supreme Court (in plurality opinions) affirmed the state’s right to impose the death penalty if the sentencer is “provided legislatively drafted standards to channel the sentencer’s discretion to avoid the arbitrariness, capriciousness, and discrimination” fatal to the statute in Furman v. Georgia. Rosen at 948. Like the statutes in Florida and Georgia, Colorado’s capital sentencing procedure is patterned in large part on the Model Penal Code. See Gregg, 428 U.S. at 193-95, 193 n. 44, 96 S.Ct. at 2934-35, 2935 n. 44.
To be upheld as constitutional, Colorado’s death penalty statute must survive scrutiny under the eighth and fourteenth amendments of the United States Constitution and under article II, sections 20 and 25 of the Colorado Constitution.3 The statute must also be constitutional both on its face, and as applied to this particular defendant.
A.
A death penalty statute must be facially constitutional under the eighth amendment *1276cruel and unusual punishment clause, and under the fourteenth amendment due process clause. Rosen at 946. In Gregg v. Georgia, 428 U.S. at 188, 96 S.Ct. at 2932 (1976), the United States Supreme Court specifically addressed the question of “whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the [United States] Constitution,” id. at 176, 96 S.Ct. at 2926, and concluded that the death penalty was not unconstitutional per se. “[T]he death penalty is not a form of punishment that may never be imposed.” Id. at 187, 96 S.Ct. at 2932. Nevertheless, the defendant here asks us to hold that imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of article II, section 20 of the Colorado Constitution.
Since its holding in Gregg, the Supreme Court has consistently rejected this argument. Jurek v. Texas, 428 U.S. 262, 268, 96 S.Ct. 2950, 2954, 49 L.Ed.2d 929 (1976); Proffitt, 428 U.S. at 247, 96 S.Ct. at 2964. No aspect of Colorado's Constitution supports the contention that our death penalty statute is unconstitutional per se. Because similar death penalty statutes have not been held facially unconstitutional by the Supreme Court, I would likewise reject the defendant’s argument here.
B.
Although not invalid per se, the more problematic question is whether the death penalty has been imposed in an unconstitutionally arbitrary or capricious manner. Gregg, 428 U.S. at 195, 96 S.Ct. at 2935. An arbitrary or capricious result can be avoided only by the use of “a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.” Id. Each sentencing scheme must be examined on an individual basis. Id.
In People v. District Court, 196 Colo. 401, 586 P.2d 31 (1978) (hereinafter District Court II), this court struck down as unconstitutional Colorado’s death penalty statute, section 16-11-103, 8 C.R.S. (1973) (1976 Supp.), because it did not meet the constitutional requirements of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (evidence at sentencing phase cannot be limited to only statutory mitigating circumstances). The ruling in District Court II turned on the statute’s limitation of the evidence which a defendant could present to establish mitigation in the sentencing phase. In response to District Court II, the legislature amended the death penalty statute, effective August 7, 1979.4 1979 Colo.Sess.Laws 674, § 1. “[Cjapital punishment is an expression of society’s moral outrage at particularly offensive conduct.” Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2930, 49 L.Ed. 2d 859 (footnote omitted). The question which the parties and amici curiae urge us to address is whether our death penalty statute, as reenacted,5 is constitutional under the Colorado and United States Constitutions.
*1277“[I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity.” Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976). Despite this presumption of validity, the death penalty cannot be constitutionally imposed if the statutory sentencing procedures create a substantial risk that capital punishment may be imposed in an arbitrary and capricious manner. Id. at 188, 96 S.Ct. at 2932.
In the cases decided after Gregg, the Supreme Court “has imposed a number of requirements on the capital sentencing process to ensure that capital sentencing decisions rest on the individualized inquiry contemplated in Gregg.” McCleskey v. Kemp, — U.S. -, 107 S.Ct. 1756, 1772, 95 L.Ed.2d 262 (1987). The first of these requirements arose from Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Woodson invalidated a mandatory sentencing scheme as violative of the eighth amendment; to satisfy the prohibition against cruel and unusual punishment, the sentencer must consider “the character and record of the individual offender and the circumstances of the particular offense.” Id. at 304, 96 S.Ct. at 2991. The second requirement arose from the Court’s holding in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The sentencer cannot “be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers” in mitigation. Id. at 604, 98 S.Ct. at 2964 (emphasis in original). The third requirement involves a two-part analysis: after testing capital sentencing procedures for facial validity, the court must “probe[ ] the application of statutes to particular cases” to determine whether the provisions have been unconstitutionally applied by not adequately guiding the sentencer’s discretion. McCleskey, — U.S. at -, 107 S.Ct. at *12781773. Fourth, the Court has “established substantive limitations” on application of the death penalty “where the objective indi-cia of community values have demonstrated a consensus that the death penalty is disproportionate as applied to a certain class of cases.” Id. (citing Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (state cannot constitutionally sentence an individual to death as punishment for rape of an adult woman)). See also Ford v. Wainwright, 477 U.S. 399,106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (eighth amendment prohibits the state from imposing the death penalty on an insane prisoner. Id. at 2602).
Constitutional deficiencies in a capital sentencing scheme “will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.” Gregg, 428 U.S. at 192, 96 S.Ct. at 2934. The dispositive issue is whether the sentencer’s discretion is adequately limited and guided by the statute.
We held in District Court II that “[a] statute must meet at least two requirements before it can serve as the basis for imposition of the death sentence.” 196 Colo, at 405, 586 P.2d at 34. First, the statute must provide a “ ‘meaningful basis for distinguishing the ... cases in which it is imposed from [those] in which it is not.’ ” Id. (citing Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346). To satisfy this requirement, “the legislature may enumerate specific aggravating factors, the presence of which will serve to justify the imposition of a sentence of death.” 196 Colo. at 405, 586 P.2d at 34. Second, the legislation must allow the defendant “to present any relevant information as to why the death sentence should not be imposed upon him.” Id.
The United States Supreme Court analyzed Florida’s death penalty statute in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and found that the statute satisfied the Furman requirements. Florida’s statute differs from the Georgia and Colorado statutes in the respect that the jury under Florida’s statute renders an advisory verdict, and the actual sentence is determined by the trial judge after the judge weighs eight aggravating factors against seven mitigating factors. Proffitt, 428 U.S. at 251-52, 96 S.Ct. at 2966. Regardless of whether the “actual” decision is made by the judge or the jury, the determination of whether there has been an arbitrary and capricious application of the death penalty is the same for purposes of analysis. The Court concluded:
Under Florida’s capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed [on automatic appeal] to ensure that they are consistent with other sentences imposed in similar circumstances.
428 U.S. at 253, 96 S.Ct. at 2967.
The constitutionality of application of Colorado’s capital sentencing statute to a particular defendant depends on whether the “aggravating circumstances are clear, understandable, precise, and easily applied by the sentencer and reviewed by the appellate courts.” Rosen at 942-43. “The thrust of [the Supreme Court’s] decisions on capital punishment has been that ‘ “discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”'” Barclay v. Florida, 463 U.S. 939, 950, 103 S.Ct. 3418, 3425, 77 L.Ed.2d 1134 (1983). This arbitrary and capricious standard “demands that [an aggravating] factor be capable of objective determination.” Cartwright, 822 F.2d at 1485 (emphasis added). An aggravating factor cannot be constitutionally applied if it is “defined and applied so broadly that it conceivably could cover every first degree murder.” Id. at 1485.
Colorado’s statute requires the jury to consider the defendant’s character and record, and the circumstances of the partic*1279ular offense. § 16-11-103(5)(a-c, f, j); Woodson, 428 U.S. at 304, 96 S.Ct. at 2991. The defendant is permitted to present any type of evidence, including any aspect of his character and any circumstances of the offenses, in mitigation. § 16-11-103(5)(Z); Lockett, 438 U.S. at 608, 98 S.Ct. at 2966. Third, application of section 16-11-103 to this particular defendant did not result in a showing of inadequate guidance for the sentencing jury. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Finally, this statute does not violate the requirement that the penalty be proportionate to the crime. § 16-11-103(1)(a) (statute limited to defendants convicted of a class 1 felony). See Coker v. Georgia, 433 U.S. at 592, 97 S.Ct. at 2866; Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335.
As seen in Proffitt, another important factor considered by the United States Supreme Court in review of capital sentencing statutes is the provision for automatic review by the state supreme court. See Gregg, 428 U.S. at 203, 96 S.Ct. at 2939; Proffitt, 428 U.S. at 253, 96 S.Ct. at 2967; see also Hopkinson v. State, 632 P.2d 79, 156 (Wyo.1981). Colorado’s statute also provides for automatic review by the Colorado Supreme Court. § 16-ll-103(7)(a, b), 8A C.R.S. (1986).6
Colorado's aggravating factor provisions, section 16-ll-103(6)(a-k), are similar to those adopted in other states. All but one are strictly objective determinations which are easily identified. The only aggravating factor that has been considered “constitutionally suspect” in other jurisdictions, under certain circumstances, is subsection (6)(j), which describes an aggravating factor as follows: “The defendant committed the offense in an especially heinous, cruel, or depraved manner; ...” Rosen at 945. This provision has generally been held to be facially constitutional. Gregg, 428 U.S. at 201, 96 S.Ct. at 2938 (Georgia’s “outrageously or wantonly vile, horrible or inhuman” aggravating factor not unconstitutional as applied by the Georgia Supreme Court); Proffitt, 428 U.S. at 255, 96 S.Ct. at 2968 (Florida’s “especially heinous, atrocious, or cruel” aggravating factor is not inadequate guidance, as construed by Florida Supreme Court). This same phrase: “especially heinous, atrocious or cruel,” was also upheld by the Wyoming Supreme Court as constitutional under the Wyoming and United States Constitutions. Hopkinson v. State, 632 P.2d 79, 153 (Wyo.1981). (“The statute does not fail to properly channel the jury’s sentencing discretion and does not grant it unfettered discretion to impose the death penalty for arbitrary and capricious reasons.” Id. (emphasis in original). Under limited circumstances, however, the death penalty has been vacated when this provision was applied in an unconstitutional manner. See Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.1987).
The question of whether this provision is constitutionally deficient need not be decided here because the jury found that three separate aggravating factors were present. The jury found that the defendant had been a party to an agreement to kill, and that the defendant knowingly created a grave risk of death to another person. § 16-ll-103(6)(e, i), 8A C.R.S. (1986).
In Zant v. Stephens, the United States Supreme Court addressed the “significance of the invalidation of one of multiple aggravating circumstances considered by the jury in a capital case.” 462 U.S. 862, 870, *1280103 S.Ct. 2733, 2739, 77 L.Ed.2d 235 (1983). The capital sentencing jury found three aggravating factors, one of which was later held unconstitutional. After noting that “different state appellate courts have reached varying conclusions,” the Court held that where the sentencer has engaged in an individualized determination of aggravating factors, as required by Georgia statute, then the remaining aggravating factors serve to “adequately differentiate” the particular case. Id. at 879, 103 S.Ct. at 2744. On this basis, the death sentence was upheld on the remaining two aggravating factors. The Court stated that “a death sentence supported by at least one valid aggravating circumstance need not be set aside ... simply because another aggravating circumstance is ‘invalid’ in the sense that it is insufficient by itself to support the death penalty.” Id. at 884, 103 S.Ct. at 2746. As a result, either of the two remaining aggravating factors is sufficient to support the jury’s verdict in the penalty phase.
Based on rulings by the United States Supreme Court, I believe our death penalty is constitutional on its face and constitutional as applied to Richard Drake. I would affirm the jury’s verdicts in both phases of the proceedings. Accordingly, I respectfully dissent.
. Even if the jurors were misled by the prosecutor’s reference to a "shared responsibility," they could hardly have misunderstood their burden when the defense attorney argued to the jury that the evidence presented "does not make [the defendant] the type of person if you got so mad about what they have done that you would want to kill them with the death penalty."
. Griffith v. Kentucky, — U.S.-, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), requires that the law in Durre be applied retroactively. In Griffith, the United States Supreme Court held that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 716. Because this case is not yet final, the law in Durre must be applied retroactively to the defendant’s trial.
. State courts are free to consider the merits of a constitutional challenge to the state constitution, independent of United States Supreme Court opinions. Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005 (Colo.1982). This is true even when the state constitution is similarly or identically phrased to the federal constitution. Id. at 1016 n. 11. On occasion, we have rejected the Supreme Court’s interpretation of the federal constitution. See People v. Sporleder, 666 P.2d 135, 140-42 (Colo.1983) (Colorado Constitution recognizes legitimate expectation of privacy in the telephone numbers dialed on a person's home telephone); Chames v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) (taxpayer under the Colorado Constitution has a reasonable expectation of privacy in bank records of his financial transactions). The court has expanded constitutional protections primarily regarding search and seizure issues. These cases do not seem to suggest that the constitution of this state would be construed in a different fashion as regards capital sentencing.
. In declining to hold the death penalty unconstitutional in Gregg, the United States Supreme Court noted: “The most marked indication of society’s endorsement of the death penalty [was] the legislative response to Furman 428 U.S. at 179, 96 S.Ct. at 2928. In the four years following Furman, "at least 35 states had reenacted the death penalty." Id.
. (6) For purposes of this section, aggravating factors shall be the following factors:
(a)The class 1 felony was committed by a person under sentence of imprisonment for a class 1, 2, or 3 felony as defined by Colorado law or United States law, or for a crime committed against another state or the United States which would constitute a class 1,2, or 3 felony as defined by Colorado law; or
(b) The defendant was previously convicted in this state of a class 1 or 2 felony involving violence as specified in section 16-11-309, or was previously convicted by another state or the United States of an offense which would constitute a class 1 or 2 felony involving violence as defined by Colorado law in section 16-11-309; or
(c) The defendant intentionally killed any of the following persons while such person was engaged in the course of the performance of his official duties, and the defendant knew or reasonably should have known that such victim was such a person engaged in the performance of his official duties, or the victim was intentionally killed in retaliation for the performance of his official duties: *1277(I) A peace officer or former peace officer as defined in section 18-1-901(3)(1), C.R.S.; or
(II) A firefighter as defined in section 24-33.5-1202(2), C.R.S.; or
(III) A judge, referee, or former judge or referee of any court of record in the state or federal system or in any other state court system or a judge or former judge in any municipal court in this state or in any other state. For purposes of this subparagraph (III), the term "referee" shall include a hearing officer or any other officer who exercises judicial functions.
(IV) An elected state, county, or municipal official; or
(V) A federal law enforcement officer or agent or former federal law enforcement officer or agent; or
(d) The defendant intentionally killed a person kidnapped or being held as a hostage by him or by anyone associated with him; or
(e) The defendant has been a party to an agreement to kill another person in furtherance of which a person has been intentionally killed; or
(f) The defendant committed the offense while lying in wait, from ambush, or by use of an explosive or incendiary device. As used in this paragraph (f), "explosive or incendiary device” means;
(I) Dynamite and all other forms of high explosives; or
(II) Any explosive bomb, grenade, missile, or similar device; or
(III)Any incendiary bomb or grenade, Are bomb, or similar device, including any device which consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and can be carried or thrown by one individual acting alone.
(g) The defendant committed a class 1, 2, or 3 felony and, in the course of or in furtherance of such or immediate flight therefrom, he intentionally caused the death of a person other than one of the participants; or
(h) The class 1 felony was committed for pecuniary gain; or
(i) In the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense; or
(j) The defendant committed the offense in an especially heinous, cruel, or depraved manner; or
(k) The class 1 felony was committed for the purpose of avoiding or preventing a lawful arrest or prosecution or effecting an escape from custody. This factor shall include the intentional killing of a witness to a criminal offense.
§ 16-11-103(6), 8A C.R.S. (1986).
. (7)(a) Whenever a sentence of death is imposed upon a person pursuant to the provisions of this section, the supreme court shall review the propriety of that sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based. The procedures to be employed in the review shall be as provided by supreme court rule.
(b) A sentence of death shall not be imposed pursuant to this section if the supreme court determines that the sentence was imposed under the influence of passion or prejudice or any other arbitrary factor or that the evidence presented does not support the finding of statutory aggravating circumstances.
§ 16-11-103(7), 8A C.R.S. (1986).