dissenting.
Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 413(h)(2),1 in effect at the time of the murders for which the petitioner was convicted, provided:
If the jury, within a reasonable time, is not able to agree as to sentence, the court shall dismiss the jury and impose a sentence of imprisonment for life.
Having deliberated for more than nine hours,2 the jury informed the trial court that it was “split” and “unable to come to an agreement” on the first issue under § I of the capital sentencing form furnished to it pursuant to Maryland Rule 4-343(e). That issue was:
Based upon the evidence, we unanimously find that each of the following statements marked “proven” has been proven BEYOND A REASONABLE DOUBT and that each of those statements marked “not proven” has not been proven BEYOND A REASONABLE DOUBT.
*2041. The defendant was a principal in the first degree to the murder.
Proven Not Proven
The petitioner's motion that, consistent with former Art. 27, § 413(k)(2), the jury be dismissed and a life sentence entered was denied. Instead, the court, repeating the charge it had earlier given as to § I,3 advised the jury that it must either unanimously decide that the petitioner was a principal in the first degree, or, by less than unanimous agreement, decide that he was not, which decision must be reached within a reasonable time. The charge included the following modified Allen4 charge:
In arriving at your decision, you must consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment.
Each of you must decide the case for yourself, but you must do so only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to re-examine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or effect of the evidence only because of opinions of your fellow jurors, or for the mere purpose of reaching a verdict.
*205Notwithstanding that the same modified Allen charge had been included in the sentencing instructions at the petitioner’s request, in so doing, I believe the court erred.
Addressing a related issue—the petitioner’s argument that the trial judge has discretion to order the capital sentencing hearing bifurcated so that the principalship issue can be decided separately from the other sentencing issues, including the weighing process contemplated by § V of the sentencing form5—the majority asserts:
The trial judge did not have discretion to bifurcate the sentencing proceeding in order to separate out the principalship issue. Rule 4-343, and the sentencing form it incorporates, are binding. The rule makes clear that principalship and the other sentencing-related issues are resolved in a unitary sentencing proceeding. The rule applies “whenever a sentence of death is sought under ... § 413.” Rule 4-343(a). Under Rule 4-343(e) the sentencing form is to be followed, except as provided in section (f). The form plainly contemplates that one jury will complete the form in one proceeding. Policy reasons advanced by Booth for separating the principalship issue from other sentencing issues were considered and rejected in our rule-making capacity when Rule 4-343 was adopted. They were reconsidered when the argument of the dissent in Colvin was rejected.[6]
*206[Maj. op. at 160-161]. Responding, however, to the petitioner’s argument that the giving of the modified Allen charge was improper in this case, the majority takes a somewhat different tack. For this purpose, other than the requirement that the same jury, in one proceeding, will answer the questions and complete the form, the majority treats the “unitary proceeding” as a series of separate, though related, issues, which not only may be, but are, and must be, resolved using different considerations, requirements and standards; each threshold issue is a separate issue to be considered, and resolved, by the rendition of a “verdict,” utilizing whatever agreement standard is prescribed by the Legislature, prior to moving on to the next issue on the form.
All but one of the threshold determinations making up the “unitary proceeding” require unanimous agreement of the jury. The one that does not, § IV, dealing with mitigating factors, recognizes that lack of unanimity may, itself, be a decision on that issue. The answers to all of the threshold issues may prompt a weighing process, which, even the majority seems to agree, see maj. op. at 156 n. 4, is certainly subject to the provision that inability to agree results in life imprisonment.
The majority’s position is simple. Section I of the sentencing form
explicitly requires jury unanimity for a finding that first degree principalship either has or has not been proven beyond a reasonable doubt. There is no middle ground. There is no verdict under § I of the Rule 4-343 form whereby some jurors conclude “proven” and some conclude “not proven.”
[Maj. op. at 155]. A verdict on the issue occurs, it says, when principalship in the first degree unanimously has been found either to have been “proven” or “not proven.” It is *207not enough, and, indeed, is insufficient for the jury to fail to agree one way or the other. Support for this position is gleaned from § IV of the sentencing form, dealing with mitigating factors. Under that section, after a period of deliberations which it determines to be reasonable, the jury may answer that “one or more of us, but fewer than all twelve, find by a preponderance of the evidence that the above circumstance exists.” Because there is no comparable provision in § I, the majority maintains that the failure to achieve unanimity by the jury on the § I issue is not, itself, a verdict; rather, it is the court that must decide when a reasonable period of deliberations has occurred and whether, therefore, the jury is deadlocked. It is significant to the majority that the § I issue is one as to which the Legislature contemplated unanimous agreement. As to such issues, it is appropriate for the court to try to break a deadlock and to do so by giving the modified Allen charge as was done in this case.7
One verdict, and one verdict only, is permitted to be returned in each sentencing procedure. That verdict reflects the jury’s ultimate, and unanimous, disposition of the case, i.e., that the defendant be sentenced to death or to life imprisonment, with, or without, the possibility of parole. There are, to be sure, as the sentencing form reveals, threshold issues that the jury must decide. The resolution of those issues, however, are not verdicts; they are findings *208in the nature of findings of fact, without which, given our statutory scheme, no verdict could be rendered. As the majority points out, with the exception of § IV, all of the findings require unanimity. Two of the options in § IV require unanimity; however, the third option is totally controlled by the jury itself, requiring it to determine not only the findings to be made, but also when a reasonable period of deliberation has occurred. Notwithstanding the form of § IV, the findings made in respect of that section do not constitute verdicts. Nor, for that matter, does the finding required by § V. Only §§ VI and VII incorporate the jury’s verdict.8
Jury rendered verdicts of both death and life imprisonment are possible and desirable. The jury’s unanimous finding that the defendant is not a principal in the first degree, see Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 413(e)(1); capital sentencing form, § I, Maryland Rule 4-343(e),9 results in a jury verdict of life imprisonment. Sentencing form, § VI(1). Similarly, should the jury find, unanimously, that no aggravating circumstances were proven or that those that were do not outweigh the mitigating circumstances found, it will have rendered a verdict calling for, again, life imprisonment. On the other hand, when the jury finds unanimously that the defendant was a principal in the first degree and at least one aggravating factor, which outweighs any mitigating circumstances found to exist, the jury will have returned a verdict calling for a death sentence.
*209When, notwithstanding the requirement of unanimity, the jury is unable to agree, after a reasonable period of deliberation, on one of the threshold issues, §§ I-IV of the sentencing form, taking them in sequence, of course, or the balance, § V of the sentencing form, the jury will not have returned a verdict. Nevertheless, in that event, former § 413(k)(2) would mandate “a sentence of imprisonment for life,” and present § 413(k)(2) would prohibit imposition of a death sentence. It is true that both former and present § 413(k)(2) speak of the jury being unable “to agree as to sentence,” rather than the jury’s inability to agree as to any issue, including one of the threshold ones; however, when the resolution of an issue is necessary to a decision as to the sentence, inability to agree on it necessarily is an inability “to agree as to sentence.” Jury inability to agree unanimously that the defendant was, or was not, a principal in the first degree is no less a failure to agree as to sentence than if the jury, having resolved every other sentencing issue, is unable to achieve agreement on the § V balance. There is no rational basis for reaching a different result depending upon whether the issue is a threshold one or involves the actual balancing of mitigating and aggravating circumstances. That one determination is more directly related to the sentence than another is not a sufficient basis to render the “unitary proceeding,” non-unitary.
The majority finds it significant that the issue about which the jury was split was § 1(1), as to which unanimity is contemplated. Aside from the fact that, in order to arrive at a jury verdict, each of the sections of the sentencing form, with the exception of § IV, which has the third option, contemplates a unanimous decision by the jury, the failure to arrive at unanimity, even on threshold issues, has implications for the jury’s ability to determine the proper sentence. Whether the jury disagreement occurs at the first question or the last, rather than what the legislative aim was when it formulated that particular question, it is the ramifications of the failure to agree on the sentencing process that must be considered. Carrying the majority’s *210position to its logical conclusion, we must view each threshold issue, each component part of the verdict, if you will, as being separate verdicts, as to which separate, even different, admonitions, or encouragements, might apply. Therefore, an attempt to break a jury deadlock could occur at any stage, with the possible exception of the weighing process, and, perhaps, at multiple stages of the sentencing proceeding. Such a construction of the process renders Art. 27, § 413(k)(2) quite impotent, indeed.
In Maryland, it is inappropriate to instruct the jury with respect to the requirements of § 413(k)(2), whether present or former, in advance of, and in anticipation, of a deadlock. See Calhoun v. State, 297 Md. 563, 593-95, 468 A.2d 45, 58-60 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984). Former § 413(k)(2) has been interpreted as an instruction to the trial court, which, as in traditional trials, must determine when deliberations have continued for a reasonable time and, hence, whether a jury is truly hung. Id. This does not, and can not, mean, however, that § 413(k)(2) has no role to play in connection with the various determinations that must be made during the sentencing proceeding. Simply because § 413(k)(2) is addressed to the trial court, and not the jury, and the jury, therefore, is never instructed as to its contents or operation, does not mean that the sentencing proceeding may be treated as if unanimity were a prerequisite of a valid outcome; that up to, and until, the trial court finally determines that the jury is hung, the jury not only need not be told of the effect of a failure to agree but actually may be misled into believing that it must agree one way or the other.
The jury’s inability to agree unanimously, one way or the other, as to sentence in a capital case tried in this State, former § 413(k)(2) makes clear, necessarily results in imposition of a life sentence. To treat the sentencing procedure, including its component parts, as if unanimity were an absolute prerequisite, notwithstanding former § 413(k)(2), and to so instruct the jury is actively to mislead it. As noted already, while unanimity is required for the jury to render a verdict, the law recognizes and thus contemplates *211that the jury may not render a verdict. Thus, although by its terms, § I of the sentencing form seeks unanimity, in point of fact, unanimity is not absolutely required. That section is only a component part of the verdict; therefore, to the extent that a reasonable time for deliberations has passed, notwithstanding that it is the first and only issue reached, the lack of unanimity must result in the imposition of a life sentence. Giving a modified Allen charge, the only purpose of which is to break a deadlock, is a clear statement to the jury that unanimity must be achieved. That is clearly not the case.
The rationale for prohibiting the giving of a modified Allen charge in a death sentencing proceeding was well stated by the Supreme Court of Delaware in Rush v. State, 491 A.2d 439 (Del.Super.1985). The Delaware death penalty statute prohibited imposition of the death penalty unless a unanimous jury found at least one statutory aggravating circumstance and recommended death. When the jury “ ‘cannot unanimously recommend death, the Court shall sentence the defendant to life imprisonment without benefit of probation or parole.’ ” 491 A.2d at 453 (quoting 11 Del.C. § 4209(d)(3)). In Rush, the jury deliberated for about two hours before informing the bailiff that “ ‘they cannot reach a unanimous decision and that those who are strongly opposed feel they cannot reach an agreement.’ ” 491 A.2d at 450. Responding to a question from the court, the foreman explained:
... There are—most of the jurors have an open mind, can be convinced one way or the other; there are at least jurors of opposing viewpoints that say they cannot have their viewpoint changed under any circumstances. Therefore, we wish you to instruct us what we should do about the form.
It’s signed, with the exception of “yes” or “no” awaiting your instruction.
491 A.2d at 451.
Only the second question, regarding whether there was unanimous agreement to recommend the death penalty, was *212not answered. Over the defense’s objection, the trial court gave a supplemental instruction, which contained a modified Allen charge. Addressing the supplemental instructions, the Supreme Court of Delaware said:
We are of the opinion that the supplemental instructions which the Trial Judge gave to the jury in the instant case constituted, in effect, an Allen-type charge which had no proper place in this § 4209 penalty phase proceeding. The typical Allen-type charge is a supplemental instruction given by the trial judge to a deadlocked jury in a case where the law requires a unanimous verdict. Generally, the Allen-type charge arises during the guilt phase of a trial. It is designed to prevent a hung jury by urging deadlocked jurors to deliberate further with the hope that ultimately they will return a unanimous verdict of guilt or innocence____ By suggesting further deliberations, a court attempts to prevent unnecessary retrials with the resultant additional expenditures of time and expense by all concerned. (Citations omitted)
491 A.2d at 452. After reviewing its statutory scheme and cases criticizing Allen-type charges, the court concluded that in a death sentencing proceeding where “lack of unanimity per se results in a sentence of life imprisonment, [the Allen-type] instruction is fatal as being overly coercive.” 491 A.2d at 453.
Similar sentiments were expressed by the New Jersey Supreme Court in State v. Hunt, 115 N.J. 330, 558 A.2d 1259, 1286 (1989). There, the jury sent a note to the trial judge indicating that it could not “ ‘find a unanimous decision on the mitigating factor[s] outweighing the aggravating factor[s].’ ” 558 A.2d at 1283. Responding, the trial court gave supplemental instructions which failed to recognize the jury’s right to “fulfill its obligations by returning a final non-unanimous verdict.” 558 A.2d at 1285. Reversing, the Supreme Court commented:
In a capital case, unlike the ordinary criminal prosecution, jurors need not reach a unanimous verdict. Thus, a decision not to agree is a legally acceptable outcome, *213which results not in a mistrial, but in a final verdict____ For this reason, trial courts should not charge juries in the penalty phase on the importance of reaching a unanimous verdict____ As long as one juror believes that the aggravating factors do not outweigh the mitigating factors, the jury must not impose the death penalty____ As we admonished in [State v.] Ramseur, [106 N.J. 123, 524 A.2d 188 (1987)], “juries in capital cases [must] be informed of, and free to exercise, their statutory option to return a final, non-unanimous verdict resulting in imprisonment if, after a reasonable period of deliberations, they are unable to agree. 524 A.2d [at 284]. (Some citations omitted.)
558 A.2d at 1286.
In Ramseur, the case upon which Hunt principally relied, the Supreme Court previously noted the purpose of the Allen-type charge and its effect in a criminal sentencing proceeding:
The singular vice of the coercive Allen-type charge is its actual purpose and effect to “undo a jury deadlock.” ... In the ordinary criminal trial, where a jury deadlock results in a hung jury and hence a mistrial, the remedy for a [State v.] Czachor[, 82 N.J. 392, 413 A.2d 593 (1980)] violation is reversal of the defendant’s conviction and a new trial. But we believe such a remedy to be wholly inadequate and inappropriate in a capital case. In a capital trial, unlike the ordinary criminal prosecution, the jurors need not reach a unanimous verdict; a true jury deadlock results not in a mistrial but in a final verdict. Thus the evil of the Allen charge in a capital murder trial is infinitely worse and significantly more prejudicial than in an ordinary criminal case. In the latter, the defendant is deprived of a deadlock that would have given him a new trial; in the former he is deprived of a deadlock that would have saved his life. (Citations omitted)
*214524 A.2d at 284-85.10 See also Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630, 633 (1986) (error to give Allen-type charge at capital sentencing proceeding); Rose v. State, 425 So.2d 521, 524-25 (Fla.1983) (same); Ex Parte Giles, 554 So.2d 1089, 1093 (Ala.1987) (same).
Whether, or not, a mistrial should have been declared when the jury failed, within a reasonable time to reach a verdict, is, as we have previously held, see Calhoun, supra, a question addressed to the trial court and the exercise of its sound discretion. Although nine hours spent deliberating on a threshold issue, indeed, the very first one presented for the jury’s resolution,, is rather strong evidence of a *215jury deadlock, perhaps reasonable persons may disagree. Perhaps the court did not err by requiring the jury to continue deliberating.
Clear error was committed by the court, however, when, in addition to requiring the jury to continue deliberating, it gave an Allen-type charge. In its initial instructions, the trial court instructed the jury, concerning § I, that it must unanimously “agree,” within a reasonable time, that the petitioner was a principal in the first degree in order to conclude that his principalship has been proven, but that unanimity was not required to find that it has not been proven. In addition, at the petitioner’s request a modified Allen charge was given. When the jury indicated its inability to agree as to the petitioner’s principalship in the first degree, the court reiterated both its charge on the point and the modified Allen charge, this time over the petitioner’s very strenuous objections.
Despite former § 413(k)(2), the jury could not be told what the effect of its failure to reach a unanimous agreement as to a sentencing issue was. On the other hand, the repetition of the charge as to § I and the modified Allen charge sends the clear and inaccurate, hence misleading, message that unanimity is required to be achieved on that issue at all costs. And sending the message that unanimity is required more than once, particularly, shortly after the jury has indicated that it is “split” and cannot reach a unanimous decision, exacerbates the situation. But, far from requiring unanimity, former § 413(k)(2) provides for the lack of juror unanimity. Nor is the fact that the petitioner requested the modified Allen charge and did not initially complain about the § I instruction a waiver of the petitioner’s right to object to the court’s giving a supplemental instruction.
Addressing the argument by the petitioner that the Allen-type charge is coercive, the majority refers to Lowen*216field V. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), pointing out that, in that capital sentencing case, the Supreme Court of the United States found an Allen-type charge substantially identical to the one given here to be non-coercive. The majority also takes great pains to point out that several of the cases upon which the petitioner relies were decided prior to the Lowenfield decision.
There are significant differences between Lowenfield and the case sub judice. In Lowenfield both the initial instructions and the challenged reinstruction “charged the jury that if it were unable to reach a unanimous recommendation, the court would impose a sentence of life imprisonment without the possibility of probation, parole, or suspension of sentence.” 484 U.S. at 234, 108 S.Ct. at 549, 98 L.Ed.2d at 575. Moreover, there, the defendant's counsel did not object to the polling of the jury concerning the extent of its inability to agree nor to the supplemental charge, omissions that the Supreme Court found important as indicative “that the potential for coercion argued now was not apparent to one on the spot.” (Footnote omitted). 484 U.S. at 240, 108 S.Ct. at 552, 98 L.Ed.2d at 579.
In contrast, in the case here, consistent with this Court’s teachings, see Calhoun, the jury was not told what effect its failure to agree on a verdict would have. Moreover, the petitioner’s counsel objected strenuously both to the requirement that the jury continue deliberations and the giving of the modified Allen charge. Indeed, as we have seen, the supplemental charge emphasized that to reach the conclusion that the petitioner was a principal in the first degree, the issue presented by § I of the sentencing form, the jury had to unanimously agree. By contrast, the same charge told the jury that to conclude that principalship in the first degree had not been proven did not require unanimity.
As to the latter the majority opines that it was error, but not prejudicial. It may have been error, but it also was prejudicial. The finding as to which unanimity was said to be required was a death penalty eligibility finding, i.e., *217without the finding, a death sentence could not be imposed. On the other hand, the finding as to which the non-unanimous agreement related would, if made, implicate life imprisonment only. Given the instruction’s disparate treatment of these findings, coupled with the giving of the modified Allen charge to break the deadlock, it is clear to me that clear prejudice resulted. The intended effect and, indeed, the only plausible result of the modified Allen charge, was to foster agreement on the finding that made death a possible outcome. Rather than operating equally to influence the jury’s decision one way or the other, the modified Allen charge in this case operated to influence the jury to make a unanimous finding that is consistent only with imposition of the death sentence. This demonstrates very graphically why the reinstruction in this case was coercive.
I dissent.
. Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 413(k)(2) provides: "If the jury, within a reasonable time, is not able to agree as to whether a sentence of death shall be imposed, the court may not impose a sentence of death.”
. The deliberations began at 3:00 p.m. on the first day and ended at 7:15 p.m. The second day’s deliberations began at 9:17 a.m., following instructions concerning issues raised by the jury, and, for purposes of this issue, terminated at 2:25 p.m., the time when the statement at issue was delivered to the court.
. The Court instructed:
The law requires that in order for you to conclude beyond a reasonable doubt that the State has proven that Mr. Booth was a first degree principal in the murder of Mr. Bronstein, all of you must agree within a reasonable time, and your verdict must be unanimous.
If any of you cannot conclude that the State has proven beyond a reasonable doubt that Mr. Booth is a principal in the murder of Mr. Bronstein, then you must mark “not proven” in the form and enter the words "life imprisonment” in Section 6.
. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). See Burnette v. State, 280 Md. 88, 371 A.2d 663 (1977).
. The capital sentencing form prescribed by present Rule 4-323(e) has 7 sections, each addressing a different issue: § I addresses the principalship issue; § II addresses the defendant’s mental capacity; § III addresses the existence of aggravating circumstances; § IV addresses the existence of mitigating circumstances; § V addresses the balance of the aggravating and mitigating circumstances; §§ VI and VII address the sentence.
The form in use when the murders for which the petitioner was convicted did not contain a section dealing with his mental capacity.
. State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988). The dissent’s major premise was that the principalship issue was not properly a part of the sentencing proceeding because, under Art. 27, § 413(c)(1), the definition of "defendant" and "person” "include only a principal in the first degree.” 314 Md. at 28, 548 A.2d at 519. Thus, a "person or defendant is not subject to a separate death penalty sentencing proceeding *206directed by Art. 27, § 413(a) unless he (or she) is determined to be a principal in the first degree. That determination must be made prior to the death penalty sentencing proceeding, otherwise no proceeding is authorized by the statute.” Id. (Blackwell, J. dissenting).
. In ruling on the petitioner’s motion, the trial judge relied on the fact that the petitioner’s request for instructions in the sentencing proceedings included the modified Allen charge, which he gave. That counsel initially may have requested, and received, the instruction sought does not mean that counsel is bound, for all times, by that request no matter what the circumstances, and, therefore, must in this case acquiesce to its use as a supplemental instruction. An attorney is not required to perpetuate an error he or she may have made earlier in the proceedings, and I believe that the request for such an instruction was error. Nor may the court force him or her to do so. In any event, the petitioner’s counsel made it abundantly clear that he objected to any supplemental instructions being given, preferring to have the court determine whether a reasonable period of deliberations had occurred.
. The only verdict options are death and life imprisonment. Section VII differentiates between a sentence of life with the possibility of parole and life without parole. Consequently, it is a refinement of the verdict.
. In the present version of the statute, a unanimous jury finding that the defendant was mentally retarded or under age 18 would likewise result in a jury verdict of life imprisonment. See Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 413(g)(4) and (5). See also, Maryland Rule 4-343(e), capital sentencing form, section II.
. The statute at issue in both State v. Hunt, 115 N.J. 330, 558 A.2d 1259 (1989) and State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987) provided:
The jury, or if there is no jury, the court shall return a special verdict setting forth in writing the existence or non-existence of each of the aggravating and mitigating factors set forth in paragraphs (4) and (5) of this subsection. If any aggravating factor is found to exist, the verdict shall also state whether it is or is not outweighed by any one or more mitigating factors.
(a) If the jury or the court finds that any aggravating factor exists and is not outweighed by one or more mitigating factors, the court shall sentence the defendant to death.
(b) If the jury or the court finds that no aggravating factors exist, or that any aggravating factors which exist are outweighed by one or more mitigating factors, the court shall sentence the defendant pursuant to subsection b.
(c) If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b.
The Code of Criminal Justice, N.J.S.A. 2C:ll-3c(3).
In Ramseur, the court found no abuse of discretion when the trial court, after receiving a note stating, “(jlury unable to reach a unanimous decision. Suggestions please[,]" required the jury to continue deliberations. 524 A.2d at 278. That court, however, did hold that the Allen charge was inappropriately given and was, in fact, reversible error because, as it also held, it was "clear that the Legislature contemplated three possible final verdicts in a capital case: a unanimous verdict that results in imprisonment, a unanimous verdict that results in death, a non-unanimous verdict that results in imprisonment.” Id.
Unlike Maryland, New Jersey permits the jury to be told that it need not reach a unanimous verdict and to hear arguments concerning the effect of non-unanimous recommendation as well as to be instructed *215by the court as to the possible verdicts. See State v. Hunt, 558 A.2d at 1285.