concurring in part and dissenting in part.
I.
I respectfully dissent.
The majority decision concludes that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), requires separate jury determinations concerning the first three steps of section 565.030.4.1 The majority also concludes that Ring should apply retroactively in this case.
To this extent, I agree with the majority opinion. I do not agree, however, that automatic commutation of Whitfield’s death sentence to life imprisonment is required pursuant to section 565.040. The procedural error that occurred in the penalty phase of Whitfield’s trial can be fully cured by remand for a new sentencing phase trial.
II.
The majority contends that the trial court committed constitutional error in itself making the findings under steps 1, 2, 3, and 4 of section 565.030.4 when the jury did not do so. However, this was error only if the jury deadlocked prior to step 4. If not, the jury made all the necessary factual findings required by Ring to determine that Whitfield was death eligible. Any findings thereafter by the judge only confirm his separate agreement with the jury, an additional safeguard.
It is clear that the state has not shown that the jury deadlocked at step 4, after making the required findings at steps 1, 2, and 3. However, it is equally clear that Mr. Whitfield has failed to show that the jury did not find steps 1, 2, or 3. The record is completely devoid of fact regarding at which step the jury deadlocked. The bur*273den of proof lies on Whitfield, not the state. See Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 738, 154 L.Ed.2d 588 (2003) (“Petitioner here cannot establish that the jury or the court ‘acquitted’ him during his first capital-sentencing proceeding.”). Thus, the majority must presume, expressly or not, that the jury deadlocked prior to step 4.
Based upon its presumption, the majority finds constitutional error and invokes section 565.040 to require automatic commutation to a life sentence. However, even assuming the validity of its presumption, the majority reads section 565.040 too broadly and ignores section 565.035.
A.
Section 565.035 describes this Court’s general duty to review death penalty sentences. This section authorizes and allows to this Court the full latitude necessary to remedy error in capital cases by providing three alternatives for resolution. It states in pertinent part:
1. Whenever the death penalty is imposed in any case, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the supreme court of Missouri. ...
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2. The supreme court of Missouri shall consider the punishment as well as any errors enumerated by way of appeal.
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5. The supreme court ..., with regard to review of death sentences, shall be authorized to:
(1) Affirm the sentence of death; or
(2) Set the sentence aside and resen-tence the defendant to life imprisonment without eligibility for probation, parole, or release except by act of the governor; or
(3)Set the sentence aside and remand the case for retrial of the punishment hearing. A new jury shall be selected or a jury may be waived by agreement of both parties....
Section 565.035 (emphasis added).
Section 565.040, on the other hand, applies in just two very limited situations where only commutation to a life sentence can remedy the error of a substantively unconstitutional sentence. It provides:
1. In the event that the death penalty provided in this chapter is held to be unconstitutional, any person convicted of murder in the first degree shall be sentenced by the court to life imprisonment without eligibility for probation, parole, or release except by act of the governor....
2. In the event that.any death penalty sentence imposed pursuant to this chapter is held to be unconstitutional, the trial court which previously sentenced the defendant to death ... shall sentence the defendant to life imprisonment without eligibility for probation, parole, or release except by act of the governor....
(emphasis added).
B.
Sections 565.040 and 565.035 must be read together in pañ materia to provide this Court with the full panoply of remedies to correct error in capital murder cases. Where either the death penalty itself is unconstitutional, section 565.040.1, or where a death penalty sentence cannot constitutionally be imposed upon a particular defendant, section 565.040.2, situations of substantive unconstitutionality that cannot be corrected by any retrial, the only adequate remedy is to commute the death sentence to life imprisonment. However, *274where procedural error occurs that can be fully remedied by a new penalty phase trial, section 565.040 is not necessary and was obviously not intended to be applied.2
Section 565.040 was enacted to apply in response to determinations such as Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Section 565.040.1 applies only in the event that the death penalty, in its totality, is deemed unconstitutional, such as in Furman or in this Court’s decision in State v. Duren, 547 S.W.2d 476 (Mo. banc 1977). Similarly, section 565.040.2 governs only where a death sentence cannot constitutionally be imposed upon a particular offender, such as where the offender is mentally retarded, Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335; where the offender is not competent, Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986); where there is insufficient evidence to sustain the existence of a statutory aggravating circumstance if the sentencer found only one such circumstance, Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); or where a single statutory aggravating circumstance is found to be constitutionally vague, Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
Section 565.040, however, does not apply to situations of mere procedural error, even if such error is rooted in constitutional principles. First, the plain words of the statute limit its application to events in which “the death penalty [in its totality] ... is held to be unconstitutional” or in which “any death sentence imposed [as to a particular offender] ... is held to be unconstitutional”. Second, there is no policy reason to mandate, a particular more extreme remedy when a lesser, more moderate remedy, is sufficient to guard the procedural rights of the offender.
Indeed, this Court’s precedents indicate that remand for a new penalty proceeding is the appropriate remedy when there is procedural error having constitutional implications during the penalty phase of a trial. In State v. Mayes, this Court found a procedural error in the penalty phase from the trial court’s failure to give a “no adverse inference” instruction. State v. Mayes, 63 S.W.3d 615, 635 (Mo. banc 2001) (citing U.S. Const, amend V). This Court concluded that the procedural error required remand for a new penalty phase, even though the error had constitutional implications. Id. at 640. See also State v. Storey, 986 S.W.2d 462 (Mo. banc 1999) (same issue and result); State v. Rhodes, 988 S.W.2d 521, 528-29 (Mo. banc 1999) (error in prosecutor’s penalty phase closing argument having constitutional implications resulted in remand for new penalty phase hearing).
Similarly, in State v. Thompson, 85 S.W.3d 635 (Mo. banc 2002), cited by the majority, this Court found the trial court’s failure to poll the jury sufficiently about its initial verdict resulted in a constitutionally unreliable sentence. Id. at 642 (citations omitted). This Court ordered a new sentencing hearing to remedy the constitutional violation. Id. at 644. In so remanding, this Court avoided consideration of an issue under Ring. Id. at 644 n. 8.
The majority did not find that section 565.030.4 cannot be constitutionally applied simply by requiring explicit jury findings of steps 1, 2, and 3. Nor did it find that a *275judge could not constitutionally sentence an offender to death if the jury deadlocked at step 4 of section 565.030.4. Nor did the majority find that it was unconstitutional to assess the death penalty against Whitfield because of any factors individual to him. Rather, the reality of the majority opinion is merely that procedural error, albeit of a constitutional nature, occurred during the sentencing phase of Whitfield’s trial. That procedural error can be fully remedied by remand for a new penalty phase trial with separate explicit jury determinations being made for each of the three fact-finding steps of section 565.030.4(1), (2), and (3).
III.
For these reasons I would remand this case for retrial of the penalty phase and allow a jury to determine the appropriate level of punishment.
. All statutory references are to RSMo 1994 unless otherwise indicated.
. It is interesting that the majority is concerned that the state might get a "second bite at the apple” when the majority retroactively applies new precedent to a trial that was conducted in accordance with the procedural requirements known at the time and to which Whitfield made no objection.