concurring in part and dissenting in part.
This is the first death sentence case to reach us since the amendment to Section 565.030, RSMo 1986, which authorizes the court to pronounce a sentence of death or life imprisonment in first degree murder cases when the jury makes the findings necessary to the death sentence in pectore, but does not announce them, and then reports that it is unable to agree on the sentence. I cannot concur in the sentence, for the reasons set out in Part I of this opinion.
I.
The instructions omitted the following two paragraphs of MAI-CR 2d 13.49:
It is your duty, and yours alone, to render such verdict under the law and the evidence concerning the punishment to be imposed as in your reason and conscience is true and just.
The state’s attorney must open the argument. The defendant’s attorney may then make his argument. The state’s attorney may then reply. No further argument is permitted by either side.
*181The principal opinion holds that the submission conforms to the statute and that the omission of these paragraphs could not be found to be “prejudicial.” Judge Robertson suggests that MAI-CR 2d 13.49 conflicts with the governing statute, Section 565.030.4(4).
I am not fully persuaded. It has always been the sense of our death penalty statutes, following the revisions designed to comply with Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), reh’g den. 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976), that the jury has the duty of determining the sentence. The first of the omitted paragraphs was designed to impress this duty on the jury, by emphatic language. The principal opinion suggests that the jury was adequately advised in the other instructions that it had the responsibility of determining the sentence. I would opt for the extra caution, so long as 13.49 is in force. I am not able to say that the jury would have been unable to agree on the sentence if it had been further cautioned about its duty in the manner specified in the patterns.
I believe that cases in which the death sentence is sought should proceed by the book. I would provide an emphatic lesson to trial judges and prosecutors. Death sentence cases, to my way of thinking, are different from other cases. In State v. Steward, 734 S.W.2d 821 (Mo. banc 1987), the Court recently reversed a conviction of first degree murder and life sentence because of remarks by the trial court, not objected to, in which prejudice was highly speculative. I think this case is somewhat similar.
I would distinguish State v. Noble, 591 S.W.2d 201 (Mo.App.1979) because the death sentence was not involved.
II.
I agree that the instructions are minimally sufficient, if read by an English teacher, to tell the jury that it must return a life sentence unless it unanimously finds beyond reasonable doubt: (1) at least one of the assigned statutory aggravating circumstances; (2) that the aggravating circumstances found warrant the imposition of the death sentence; and (3) that the aggravating circumstances are not outweighed by mitigating circumstances.
I am not at all confident that juries will go through this elaborate procedure if disagreement appears. The line of least resistance would be simply to report failure to agree. There is no provision for polling to make sure that the jury has made the essential findings.
The verdict forms for future cases should be revised so that the jury which reports inability to agree on the sentence in a capital case should return into court the aggravating circumstances which it has found. There would be no conceivable harm to the prosecution in such a procedure, and such a return would be a guarantee of the integrity of the verdict.
I would agree that the case is factually comparable to others in which a death sentence has been upheld, even though there are more aggravated cases in which the jury did not decree a sentence of death. I would affirm the conviction but would vacate the sentence and remand for such further proceedings as the prosecutor may elect.