dissenting.
I concur in the decision to affirm the conviction. Because I am unable to agree with Part VI of the majority opinion and because I believe the sentencing procedure employed in this case was constitutionally unfair to the Defendant, I dissent from the affirmance of the sentence of death.
At the threshold of my disagreement with the majority lies a question of statutory construction. The majority holds that the Legislature intended to make the non-existence (as well as the existence) of aggravating and mitigating circumstances an ultimate issue in a capital sentencing proceeding, and therefore intended to require a unanimous verdict of existence or non-existence. I believe the Legislature intended to require unanimity for a finding of the existence of a circumstance, but did not intend to mandate a unanimous finding that any individual circumstance does not exist. I further believe it is probable, or at least reasonably possible, that this jury understood the language as the Legislature intended it, and that the answers of “no” given on the sentencing form represented their failure to unanimously find the existence of a circumstance, rather than a unanimous determination that the circumstance did not exist. This is no mere semantic difference, for if I am correct, it means that the procedure followed in this case impermissibly and unconstitutionally precluded the ultimate consideration of mitigating factors that may have been proven.
Moreover, even if I were to accept the majority’s interpretation of the statute, I would find it intellectually difficult to accept the rather extraordinary, and I think illogical, “filling of the gaps” accomplished by Section VLB of the majority opinion. Finally, if this newest creative interpretation of our capital punishment statute is entirely correct there should nonetheless be a new sentencing proceeding in this case. It is clear to me that no one at the trial could *75have understood the law to be as it is announced today, and the trial judge’s instructions were to the contrary. I turn to a more detailed examination of these several problems.
Our death penalty statute mandates that the jury “shall first consider whether, beyond a reasonable doubt, any of the [enumerated] aggravating circumstances exist.” Maryland Code, Art. 27, § 413(d). Combining that with the requirement of unanimity which appears elsewhere in the statute, I interpret the question presented to the jury as to each enumerated aggravating circumstance to be:
Do the jurors unanimously determine that this aggravating circumstance has been proven to exist beyond a reasonable doubt?
If one juror believes it has been so proven, but eleven do not the jury answers “no” to the question, and that particular aggravating factor cannot be considered in the ultimate weighing process. Every relevant section of the statute speaks to whether the jury finds that an aggravating circumstance exists—nothing therein suggests the jury must also be unanimous in determining that an aggravating circumstance does not exist. Consider the language of these sections:
(d) [T]he court or jury, as the case may be, shall first consider whether, beyond a reasonable doubt, any of the following aggravating circumstances exist:
$ $ $ $ jjí 3¡S
(f) If the court or jury does not find, beyond a reasonable doubt, that one or more of these aggravating circumstances exist, it shall state that conclusion in writing, and the sentence shall be imprisonment for life.
(g) If the court or jury finds, beyond a reasonable doubt, that one or more of these aggravating circumstances exist, it shall then consider whether, br,sed upon a preponderance of the evidence, any of the following mitigating circumstances exist:
*76(h) If the court or jury finds that one or more of these mitigating circumstances exist, it shall determine whether, by a preponderance of the evidence, mitigating circumstances outweigh the aggravating circumstances.1
Unfortunately, the form initially approved by this Court for use in capital sentence proceedings did not make clear that the requirement of unanimity with respect to consideration of an aggravating circumstance applied only to the question of whether that circumstance had been proven to exist. Rather, Maryland Rule 772A(d), effective January 1, 1979, approved the following language:
Based upon the evidence we unanimously find that each of the following aggravating circumstances which is marked ‘yes’ has been proven BEYOND A REASONABLE DOUBT and each aggravating circumstance which is marked ‘no’ has not been proven BEYOND A REASONABLE DOUBT....
Although this language can accommodate the interpretation I believe to be correct, it also can accommodate the interpretation placed upon it by the majority—that the jurors must be unanimous in their determination that the aggravating circumstance does not exist in order to answer “no.” A change in this language was made by the adoption of Rule 4-343(c) which supplanted Rule 772A(d), and which became effective July 1, 1984. That section now reads:
Based upon the evidence we unanimously find that each of the following aggravating circumstances that is marked ‘yes’ has been proven BEYOND A REASONABLE DOUBT. Each of the aggravating circumstances that has not been so proven is marked ‘no.’
This change, intended to be one of style and not substance, more accurately reflects the intent of the Legislature. Un*77fortunately, the new language is not so clear in its meaning that it does not require explanation by means of careful instruction, and in any event the revised form was not used in this case.2
Had the sentencing form simply used the language of the statute by providing that “we unanimously find beyond a reasonable doubt that the following aggravating circumstances exist” and then listed the aggravating factors with a box to be checked as to each found to exist, I believe jurors would have had no difficulty in concluding they were to mark only those circumstances they unanimously found to have been proven to exist. They simply would not mark those about which they disagreed. Because the jurors are specifically instructed that they may consider only the aggravating factors they have unanimously found to exist, the defendant is fully protected. Thus, there is no need, much less any legislative mandate, for a jury to unanimously find that a particular aggravating circumstance does not exist before it may continue deliberation.
Not only is the legislative scheme for consideration and determination of aggravating circumstances adequate for the protection of an accused, it may well grant him more protection than is constitutionally required. The Supreme Court of Virginia has held, for example, that the requirement of unanimity extends to the ultimate question of whether death is the appropriate sanction and to the question of existence of any statutory enumerated aggravating factors that justify the imposition of the death penalty, but not to the existence of each individual aggravating circumstance. Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784, 791-92 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. *78741, 62 L.Ed.2d 736 (1980). See also Briley v. Bass, 584 F.Supp. 807, 819 (E.D.Va.) (United States Constitution does not require that jury be unanimous as to aggravating factors relied upon in imposing death penalty), cert. denied, 469 U.S. 893, 105 S.Ct. 270, 83 L.Ed.2d 206 (1984); Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (jury conclusion that sufficient aggravating circumstances exist cannot be impeached by showing that part of the jury proceeded upon one interpretation and part upon another), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977).
In State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983), the Supreme Court of North Carolina considered and rejected a defendant’s claim that the requirement of unanimity extended not only to the existence of aggravating and mitigating circumstances, but to their non-existence as well. That Court said, id. 302 S.E.2d at 157:
Defendant contends, however, that even if it is proper that a mitigating circumstance exist only when there is unanimous agreement by the jury, the trial judge erred when he instructed the jurors that a mitigating circumstance must be deemed not to exist in the absence of a unanimous agreement on its existence. Defendant urges this Court to impose the following requirement: that in order for a jury to find that a mitigating factor does not exist it must first unanimously agree it does not exist. If no unanimous agreement is reached, defendant contends, the result is a hung jury and the automatic imposition of life imprisonment. Although novel, the suggested approach is unworkable and contrary to the general principles of unanimity.
# * * * * *
The unanimity requirement is only placed upon the finding of whether an aggravating or mitigating circumstance exists.
The mandate of our statute that the jury specifically and in writing determine “[wjhich, if any, aggravating circumstances it finds to exist” obviates consideration of the above approach and the thorny subject of unanimity as it relates *79to the existence of aggravating circumstances. With this language the Legislature has made it clear that there must be unanimity as to each individual aggravating circumstance before it can be considered. Still, I shall return to the question of unanimity and a consideration of the levels at which it must be applied in the adjudicative process, when I turn to analysis of the proper function of the jury with respect to the consideration of mitigating circumstances.
Under Appellant’s interpretation of the statute, with which I agree, a split of six-six on whether an aggravating or a mitigating circumstance has been proven to exist simply means that the answer of the jury should be “no”, i.e. the jury cannot unanimously determine by the appropriate standard of persuasion that the particular circumstance has been proven to exist. As previously stated, this conclusion causes no difficulty with respect to aggravating circumstances. It is well within the province of the Legislature to determine that an aggravating circumstance cannot be considered unless all jurors agree that it has been proven to exist, even though that result is not constitutionally required.
It is quite a different matter, I suggest, for the Legislature to impose as a condition precedent to the collective consideration of relevant mitigating circumstances the requirement that all twelve jurors agree on the existence of each mitigating circumstance to be considered. As Appellant points out, the result of such a restriction not only would be illogical, but unconstitutional. Following Appellant’s hypothetical situation and interpretation of the statute to a logical conclusion demonstrates the point. Because of the six-six split on the two mitigating circumstances, these circumstances have not been unanimously found to exist, and the form will be marked “no” as to each. If no enumerated or separately articulated mitigating circumstance has received the unanimous vote of the twelve jurors, the answers to each of the eight paragraphs of Section II (the mitigating circumstances section) will be “no.” The *80consequence of that situation is as automatic as it is deadly—the jurors are not permitted to engage in the weighing process or any deliberation on the appropriateness of the penalty of death, but are instructed that “[i]f Section II was completed and all of the answers were marked ‘no’, then enter ‘Death’.” Assuming there was a single aggravating circumstance in the hypothetical situation we have considered, and assuming that the six jurors who were not persuaded as to the existence of the first mitigating circumstance were the same six who were persuaded of the existence of the second mitigating circumstance in dispute, we are presented with twelve jurors who believe that relevant mitigating circumstances have been proven to exist and yet they are absolutely precluded from engaging in their principal function—the weighing of the aggravating against the mitigating circumstances to determine the appropriate sanction. It is entirely conceivable that if allowed to engage in appropriate deliberation on the ultimate question, the jurors may not be persuaded by a preponderance of the evidence that the aggravating circumstance outweighs the mitigating circumstance that each juror is convinced exists. To prohibit the jury from considering relevant mitigating circumstances is to effectively sever the constitutionally indispensible “link between contemporary community values and the penal system” that the jury is intended to provide. Woodson v. North Carolina, 428 U.S. 280, 295, 96 S.Ct. 2978, 2987, 49 L.Ed.2d 944 (1976) (quoting Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968)). Drawing on the predicate that the penalty of death is qualitatively different from any other sentence, the Supreme Court said in Woodson, 428 U.S. at 304, 96 S.Ct. at 2991:
[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
*81Other hypothetical situations provide more dramatic evidence of the potential dangers of requiring a unanimous verdict on the question of the existence of each individual mitigating factor. If the vote of the jury is eleven to one for the existence of each of three mitigating circumstances and the dissenting vote is cast by a different juror in each instance, we can be certain that all twelve jurors have been convinced by a preponderance of the evidence that at least two relevant mitigating circumstances exist. Yet, because they do not agree on which two exist, the procedure employed in this case would foreclose their consideration of any mitigating circumstances, even though they unanimously believe that some relevant mitigating factor has been proven to exist.
To understand the evolution of the Maryland death penalty statute into its present form, and to place in sharp focus the exact nature of the problem as it relates to the required consideration of mitigating circumstances, a brief history of legislative enactments and relevant case law may be helpful.3 From 1908 until 1972 trial courts of general jurisdiction were vested with discretion to sentence a person convicted of first degree murder to either death or life imprisonment. In 1972 the United States Supreme Court held that the grant of such unfettered discretion to impose the sentence of death violated the Eighth and Fourteenth Amendments to the Federal Constitution. Furman v, Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed 2d 346 (1972). Responding to Furman, this Court promptly declared Maryland’s death penalty statute unconstitutional. Bartholomey v. State, 267 Md. 175, 297 A.2d 696 (1972). Unfortunately, we read Furman as holding “that the death penalty is unconstitutional when its imposition is not mandatory.” Bartholomey, 267 Md. at 184, 297 A.2d 696. The Legislature responded by passing a mandatory death penalty statute in 1975. Chapter 252, Acts of 1975, codified at Art. 27, *82§ 418 of the Maryland Code (1957, 1976 Repl.Vol.). Within a year the United States Supreme Court held that mandatory death penalty statutes for first degree murder were unconstitutional because they did not permit the sentencing authority to consider mitigating circumstances involving the accused and the character of the offense before deciding whether the imposition of the death penalty was appropriate. Woodson v. North Carolina, supra; Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). We then held the Maryland mandatory death penalty statute unconstitutional. Blackwell v. State, 278 Md. 466, 365 A.2d 545 (1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2183, 53 L.Ed.2d 229 (1977).
At the same time it decided Woodson, however, the Supreme Court upheld the capital punishment statutes of Georgia, Texas and Florida, finding that the discretion of the sentencing authority had been adequately directed and limited so as to minimize the risk of wholly arbitrary and capricious action, but retained sufficiently to permit consideration of appropriate mitigating factors and thus to maintain the essential link with contemporary community values. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Our Legislature then returned to the drawing board and produced a death penalty statute that it believed consonant with the several views expressed in the joint opinions by which Gregg, Jurek and Proffitt were decided. Senate Bill 374 was enacted on March 10, 1978, as Chapter 3 of the Laws of 1978, and became effective July 1 of that year. That act established as conditions precedent for the imposition of the death penalty the same eight aggravating circumstances (with minor language changes) that had been contained in the 1975 mandatory death penalty law, but also added seven specific mitigating circumstances that could be considered by the sentencing authority in the ultimate determination of whether death was the appropriate sanction. Two days *83after the new statute went into effect the Supreme Court held that, with the possible exception of the rarest kind of capital case, a sentencing authority could “not 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 as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978). Our Legislature responded to Lockett by enacting Chapter 521 of the Laws of 1979 to add the following paragraph to the list of mitigating circumstances to be considered by the sentencing authority:
(8) Any other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances in the case.
This serpentine path of evolution has been aptly described as the “product of a considerable history reflecting the law’s effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982). From the earlier concept that only mandatory death sentences would cure the problem of unbridled discretion condemned in Furman we have proceeded to an understanding that although the sentencer’s discretion must be restricted to ensure that the penalty of death will not be inflicted in an arbitrary and capricious manner, the sentencer must be free to consider any relevant mitigating evidence regarding the character or record of the defendant and any of the circumstances of the offense. Sumner v. Shuman, — U.S. -, 107 S.Ct. 2716, 97 L.Ed.2d 56 [1987]; Hitchcock v. Dugger, 481 U.S.-, 107 S.Ct. 1821, 95 L.Ed. 2d 347 (1987); California v. Brown, — U.S.-, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). We now know that room must be left for interposition of societal judgments of mercy and sympathy that may be engendered by a *84consideration of relevant mitigating evidence. Id. In my view, the Maryland process for jury determination4 of punishment in a capital case, consisting as it does of the requirements of both statute and rule, retains too much of the vestiges of the mandatoriness and fails to permit meaningful consideration of relevant mitigating circumstances.
The majority seems to suggest that no other application of the requirement of unanimity is possible—that the mandate of unanimity controls not only the verdict but also every subordinate predicate finding. Certainly where unanimity is required, the verdict must be unanimous. State v. McKay, 280 Md. 558, 375 A.2d 228, 97 A.L.R.3d 1238 (1977); Ford v. State, 12 Md. 514 (1859). Furthermore, the determination of any ultimate issue essential to the verdict must be unanimous. However, the determination of historic facts presents a different question, and where alternative findings of historic facts are advanced in support of a single conclusion the better rule is that the jurors need not agree on any single alternative fact provided they all agree on some alternative fact that leads them to a single conclusion on the ultimate issue. For example, in an action for damages arising out of an automobile accident, the jury must be unanimous in its finding on the ultimate questions of duty, breach, causation and damages, and of course on the verdict. Still the jurors need not agree on the historic facts supporting their common conclusion on an ultimate question. If the plaintiff has advanced alternative theories of negligence, e.g. the defendant was speeding, failed to keep a proper lookout, or failed to sound his horn, the jurors may be unanimous in their conclusion that the defendant was negligent, but for different reasons. The Supreme Court of Illinois, writing nearly a century ago, stated the applicable law succinctly:
*85The common law requires that verdicts shall be the declaration of the unanimous judgment of the 12 jurors. Upon all matters which they are required to find, they must be agreed. But it has never been held that they must all reach their conclusions in the same way and by the same method of reasoning____ To require unanimity ... not only in the result, but also in each of the successive steps leading to such result, would be practically destructive of the entire system of jury trials. Chicago & N.W. Ry. Co. v. Dunleavy, 129 Ill. 132, 22 N.E. 15, 17-18 (1889).
The Court of Special Appeals acknowledged the applicability of this principle to criminal prosecutions in Craddock v. State, 64 Md.App. 269, 278, 494 A.2d 971, cert. denied, 304 Md. 297 (1985):
Generally, jurors are not required to uniformly accept all of the evidence presented in order to arrive at a unanimous verdict. Some jurors unquestionably reject evidence that others accept in determining guilt or innocence. In short, the law requires unanimity only in the verdict, not in the rationale upon which the verdict is based. In the case sub judice, the statute sets forth various acts that constitute the crime of theft. As long as jurors unanimously agree that theft in some form was committed, nothing more is required.
Compare U.S. v. Gipson, 553 F.2d 453 (5th Cir.1977). See also State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983), (where jurors are unanimous in finding first degree murder they need not agree on whether it was premeditated or felony murder); Blake v. State, supra, (if a verdict may be justified upon either of two interpretations of the evidence the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon another); Clark v. Commonwealth, supra, (aggravating circumstances are treated as a single unit and jurors need not specify which portion of the unit they find in order to satisfy requirement of unanimity); State v. Lomagro, 113 Wis.2d 582, 335 N.W.2d 583 (1983) (where a single crime is *86charged, jury unanimity on the particular alternative means of committing the crime is not required if the acts are conceptually similar); State v. Carey, 42 Wash.App. 840, 714 P.2d 708 (1986) (jurors need not be unanimous on determination of premeditated or felony murder so long as they are unanimous that one or both have been proved). Contra, State v. Kirkley, supra, 302 S.E.2d at 157 (jury must unanimously agree that a mitigating circumstance exists before it may be considered).
Although the question of unanimity may arise in connection with instructions to be given in cases where a general verdict is to be returned, the problem will be seen more frequently where the case is submitted to the jury on special verdicts or interrogatories. As Dean McCormick pointed out in his article, Jury Verdicts Upon Special Questions in Civil Cases, 2 F.R.D. 176 (1941), the impetus in several states for resort to special questions may have been to provide a check on jury nullification of the law, and in some cases to avoid tedious instructions on the law. Dean McCormick concluded that submission on special questions had worked well where a few ultimate questions stated in simple form were submitted, but that submission on multiple subordinate facts and issues had caused difficulty.5
The particular problems of jury unanimity in cases involving special verdicts is also discussed by Professor Ruth Ginsburg in Special Findings and Jury Unanimity in the Federal Courts, 65 Colum.L.Rev. 256 (1965). As Professor Ginsburg cogently observes, the definition of what constitutes an “ultimate question" and the precise formulation of the question to be put to the jury are matters of considerable importance.
*87[W]hen separate fact allegations, each supported by evidence, would independently permit the jury to reach a conclusion on an ultimate issue, appropriate definition of the elements of the case on which the jury must agree poses a problem of more than academic significance. In close cases, the chance of a verdict for one side or the other may be enhanced or restricted depending upon the detail or the generality of the propositions upon which agreement is required. Id. at 262.
After discussing two alternatives to a proper definition of the requirement of unanimity, Professor Ginsburg concludes:
A definition of unanimity in terms of particular facts corresponds to a theoretical image of the jury as a singular body—twelve men who, through the alchemy of the deliberative process, become as one. In reality, however, perfect harmony, even if it were desirable, is not to be anticipated. A formal requirement of accord on independent particulars, each of which standing alone would support an ultimate finding, impels formal agreement. If each juror subscribes to at least one of the independent particulars, but no particular is subscribed to by all, it seems improbable that the jury would—and out of tune with common-sense notions of justice that the jury should—report itself “hung” rather than proceed to decision. In such a case, if particular fact questions were submitted to the jurors, agreement to answer the “right way” by reporting unanimity on one or more of the particulars would be the more likely course.
The alternative definition—unanimity upon ultimate issues—appears the more desirable. It takes into account the collective nature of the jury and does not purport to carry the image of a composite individual beyond practical limits. In short, unanimity defined in terms of ultimate issues strikes a balance between two extremes: failure to define the objects of unanimity and “particular fact” definition. The latter, rigidly and unrealistically, equates the collective judgment of twelve with the indi*88vidual judgment of a single trier. The former, although it would provide maximum leeway for the “equitable dispensing power” of the jury as a palliative for archaic rules of law, would also constitute an abdication of the judicial function. Id. at 268 (footnotes omitted).
Having concluded that the requirement of unanimity is properly applied to the ultimate questions presented by a given case, I turn to the more specific problem of what constitutes the ultimate question or questions in a capital sentencing proceeding. The absolute ultimate question is, of course, whether death is the appropriate penalty. To reach that question the jury must determine whether one or more of the statutory enumerated aggravated circumstances exist in the case. If one or more aggravating circumstances are found to exist, the jury must determine whether one or more relevant mitigating circumstances exist. The verdict is then determined by the jury weighing the aggravating against the mitigating circumstances and determining whether, by a preponderance of the evidence, the aggravating outweigh the mitigating.
Clearly, the ultimate verdict must be unanimous. In addition, I entertain no doubt that the jurors must be unanimous in their determination that one or more enumerated aggravating circumstances have been proven to exist. As noted earlier, I am not persuaded that there is a constitutional requirement that all jurors agree as to the existence of each aggravating circumstance to be considered, but that question is not before us. The Legislature has imposed that requirement by statute, and the requirement does not in any way contravene rights of the defendant.
Not quite as clear, but acceptable to me for the purposes of this case, is the proposition that in order to engage in the ultimate weighing process each juror must determine that one or more relevant mitigating circumstances exist.6 I do *89not agree, however, that the Legislature may constitutionally require unanimity as to each individual mitigating circumstance before it may be given consideration in the final weighing process. As I have taken some pains to point out, this is a position that extends the requirement of unanimity beyond the ultimate question of whether all jurors believe some relevant mitigating circumstance or circumstances exist, and therefore it is out of step with currently accepted principles of law. More important, however, the requirement may mechanically exclude from consideration by the jury substantial historical facts and mitigating circumstances that might well tip the balance in the final weighing process, and thus it is constitutionally infirm. Unfortunately, our Legislature has imposed precisely that requirement. Read together, subsections (i) and (j) of § 413 require a written determination by the jury, stating “specifically ... [w]hich, if any, mitigating circumstances it finds to exist.”
Returning to the original hypothetical situation, if six jurors believe one mitigating circumstance has been proven to exist and six others believe another has been proven to exist, under the procedure followed in this case none of them can consider either mitigating circumstance in the final weighing process. Indeed, no matter how many jurors believe how many mitigating circumstances exist, no one will be allowed to consider any of them unless all twelve happen to agree on a single one. Nor does the presence of a “catchall” provision cure the deficiency, at least as it *90appears in the statute and the rule. After listing seven mitigating factors the jury should consider, subsection (g)(8) of the statute adds “[a]ny other facts which the jury ... specifically sets forth in writing that it finds as mitigating circumstances in the case.” (emphasis added). Manifestly, this language excludes the possibility that individual judgments concerning the seven circumstances previously considered could somehow be worked into this section. Moreover, by requiring in the same format that the jury state specifically and in writing any other facts that it finds as mitigating circumstances, the statute and rule perpetuate the requirement for specific unanimity as to historical facts rather than unanimity on the collective existence of relevant mitigating circumstances.7
I appreciate the fact that entirely legitimate concerns about the need to impose limitations on “unbridled discretion” and the need to provide as much information as possible for proportionality review have prompted the extraordinary requirements for precision and written findings. But we have gone too far. In an attempt to cure one problem we have caused another—not, as we have seen, an unusual occurrence in the difficult process of reaching an acceptable middle ground between important but conflicting interests in this area of the law. The process must be as simple and as fair as we can make it. We must be strict in the requirement that no person be considered for the death penalty unless and until there has been a unanimous finding, beyond a reasonable doubt, of the existence of one or more statutory enumerated aggravating circumstances. *91But we must be liberal in allowing the jury to consider evidence of any relevant mitigating circumstance and in allowing every juror to utilize in the ultimate weighing process every mitigating circumstance proved by a preponderance of the evidence satisfactory to that juror. If any individual juror is not persuaded of the existence of any relevant mitigating circumstance, there will of course be no weighing of circumstances, and the verdict will either be death, or the jurors will be unable to agree. However, if all twelve jurors believe there are mitigating circumstances, the ultimate weighing process must be allowed to take place.
To briefly summarize the foregoing discussion, I conclude as follows. First, that the statute requires and the Legislature intended to require as a condition precedent to the consideration of any aggravating or mitigating circumstance, the unanimous agreement of the jurors as to the existence of that circumstance. Second, that the statute does not require, nor did the Legislature intend to require, any finding by the jury that a particular circumstance does not exist, either unanimously or otherwise. Third, that because of the imposition of an artificial and wholly unnecessary requirement of unanimity as to each mitigating circumstance, the statute unconstitutionally precludes jury consideration of relevant collective mitigating circumstances.
Applying these principles to the case before us persuades me that the sentence of death must be reversed. It is entirely possible, and indeed I suggest very probable, that this jury answered “no’’ as to certain aggravating and mitigating circumstances because they were not unanimous in their belief that the circumstance had been proven to exist, and not because they unanimously agreed that it did not exist. The trial judge’s instructions were entirely consistent with the interpretation of the statute that I believe to have been intended by the Legislature. After referring to the sentencing form that had been distributed to the jurors, and discussing the requirement of unanimity with *92respect to a finding of the existence of aggravating circumstances, the trial judge said:
Let me, before we begin the enumeration of the items of aggravating circumstances, remind you that in order to answer any of those questions yes you must be unanimously satisfied beyond a reasonable doubt of the existence of one of those aggravating circumstances.
The judge then defined the burden of persuasion, and said:
If, after consideration and comparison of the evidence you have heard this morning, you cannot find an abiding conviction to a moral certainty of the existence of an aggravating circumstance, then reasonable doubt does exist and you must answer no.
The trial judge then pointed out that the State had given notice only as to aggravating circumstance number two, and he said:
Now in considering these matters, you must consider whether aggravating circumstance number two has been proven beyond a reasonable doubt. If you unanimously conclude that it has been so proven, you should answer that question yes. If you are not so satisfied, then of course you must answer no. (emphasis added).
Concerning the requirement of unanimity with respect to the existence of mitigating circumstances, the trial judge instructed in the language of the form that was before the jury.
If, as I suspect, the jury followed logic and the trial judge’s instructions rather than the strained interpretation of the meaning of a “no” vote put forth by the majority, it follows that a number of the jurors may have been persuaded of the existence of certain mitigating circumstances, but agreed to marking them “no” because the jury did not unanimously find their existence. Moreover, because the trial judge instructed in accordance with the statute, there was no opportunity for the jurors to incorporate within the “catchall” section any individual judgments they may have *93reached concerning the enumerated mitigating circumstances. Judge Sharer instructed them:
Now number eight indicates, other mitigating circumstances exist as set forth below. Should you find any other mitigating circumstances not specifically enumerated in the first seven that we have just reviewed which have been raised by the evidence and proved to you by a preponderance of that evidence you may so indicate____ If you find no other mitigating circumstances then you make no entry upon those lines under number eight, (emphasis added).
The jury unanimously found one aggravating circumstance to exist, but was unable to agree unanimously on the existence of any particular mitigating circumstance.8
Thus, the hypothetical posed by Appellant comes to life. This jury was precluded from a consideration of mitigating circumstances that should have been permitted. It was precluded from engaging in any weighing of aggravating and mitigating factors by the draconian instruction that “if Section II was completed and all of the answers were marked “no” then enter “Death.”
The majority’s conclusion that when the jury answers “no” it means that every juror agrees that the circumstance in question does not exist (or perhaps more precisely, that every juror agrees the circumstance has not been proven to exist by the requisite standard of persuasion) solves the problem of mandatoriness—if every answer with respect to mitigating circumstances is “no” there cannot be a single juror who believes that a single mitigating circumstance exists. But this poses another problem. If “yes” means all jurors agree that the circumstance does exist, and “no” means all jurors agree that the circumstance does not exist, *94what is to happen when there is disagreement? According to the interpretation I favor, if the disagreement cannot be resolved the circumstance has not been unanimously proven and the jury marks “no” and moves on. But according to the majority, the jury could not answer “yes” or “no,” and it would seem the result would be a mistrial. Given the number of aggravating and mitigating circumstances that may be considered, and the improbability that twelve persons could unanimously agree as to the existence or non-existence of each, the likelihood of a mistrial under that interpretation would be quite high. To avoid that result, which I agree would be unfortunate, the majority simply announces that when the jurors disagree, they do not answer “yes” or “no” but rather leave the answer blank and proceed to the next question.
Apart from the fact that this holding appears out of the blue after nearly ten years of extensive litigation involving this statute9, it is inconsistent with the majority’s basic premise that the existence or non-existence of aggravating and mitigating circumstances are ultimate facts requiring unanimity for resolution, and without the resolution of which a mistrial must be declared. I quote from the majority, at 60:
[T]he presence or absence of aggravating and mitigating circumstances, and the weighing of aggravating against mitigating circumstances, all fall into the category of “ultimate issues.”
******
The cases regularly point out that unanimity is required for a jury determination on either side of an issue, ... and that the failure to achieve unanimity on either side of an issue ordinarily results in a hung jury.
*95One cannot simultaneously run with the hare and hunt with the hounds. Either a mitigating circumstance is an ultimate fact requiring unanimous concurrence as to existence before it can be considered, or it is a predicate or historic fact not saddled with the requirement of unanimity as to its existence.
Although we are poles apart in analysis, the majority and I are in essential agreement as to the basic principles of law that control in a capital sentencing proceeding. An aggravating circumstance can be found to exist only by unanimous agreement of the jury, and no aggravating circumstance may be considered unless it has been found to exist. A mitigating circumstance, on the other hand, must be considered by each juror who believes it to have been proven to exist, irrespective of whether all jurors agree that it exists. Where any individual juror believes a mitigating circumstance exists, that juror must consider that circumstance whether or not it appears on the sentencing form in any of the eight categories. Where one or more aggravating circumstances have unanimously been proven to exist, each juror who believes a mitigating circumstance exists must weigh the aggravating against the mitigating circumstances, and may not vote for death unless persuaded that the aggravating outweigh the mitigating.
I would vacate the sentence of death, however, because the jury in this case was not informed, by instruction or by the sentencing form, of the interpretation of the statute announced for the first time today. The jurors may well have believed their answer of “no” meant that they could not unanimously agree that a mitigating circumstance had been proven. Never were they told that if they disagreed, they could leave the answer blank and proceed. Instead, they were told that “[y]ou must answer yes or no as to each of those circumstances.”
I need not address the question of whether our death penalty statute, as rewritten by this Court in this case and in Foster v. State, 304 Md. 439, 499 A.2d 1236 (1985), cert. denied, — U.S.-, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986), *96may be constitutionally applied. Trial judges would do well, however, to instruct in accordance with the principles developed by the cases, and avoid instructing in the literal language of the statute. Additionally, this Court should promptly revise Rule 4-343 to correct the sentencing determination form.
I would affirm the conviction, but vacate the sentence of death and remand the case for a new sentencing proceeding.
. We have interpreted this language to mean that che jury shall determine whether, by a preponderance of the evidence, the aggravating circumstances outweigh the mitigating circumstances. Foster v. State, 304 Md. 439, 499 A.2d 1236 (1985), cert. denied, — U.S.-, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986).
. The form actually used in this case tracked Rule 772A(d), rather than Rule 4-343(c). The latter rule was applicable and should have been followed, but that change alone would not have cured the deficiencies present in this sentencing procedure. I have reviewed other differences between the form actually used and that which should have been used, and I find no indication of possible prejudice to the Appellant.
. A more detailed history may be found in Tichnell v. State, 287 Md. 695, 720-29, 415 A.2d 830 (1980).
. Problems created by an improper and mechanical application of the requirement of unanimity are not present when the defendant elects to be sentenced by a judge.
. Additional problems resulting from the failure of one or more jurors to join in the answer to a special interrogatory or special verdict are collected in an annotation, Annot., Failure To Join In Special Verdict, 155 A.L.R. 586 (1945).
. A strong argument can be made that even in the absence of a finding that one or more mitigating circumstances exist, the jury must be free to reject the sanction of death as the appropriate penalty. The *89rationale is that although an aggravating circumstance determined by the Legislature to be sufficient to support the penalty of death has been proven, the jurors may agree that the facts of the particular offense are not so egregious as to warrant imposition of the death penalty in a particular case. I agree that this option must be open to the jury, but I conclude that it is under Maryland death sentencing proceedings, and that the problem is one of semantics. Where twelve jurors agree that the circumstances of the offense, although crossing the legal threshold so as to justify consideration of the death penalty, do not in fact warrant death in the particular case, that jury has in fact found a mitigating circumstance even though it may be difficult to articulate. Trial judges and counsel should make this clear to the jury through appropriate instructions and argument.
. One could argue that there is nothing to stop a jury from writing in as a "catchall” mitigating circumstance that "we unanimiously conclude from a consideration of the aggravating and mitigating circumstances disclosed by the evidence that death is not the appropriate penalty" or words to that effect. The difficulty is that the form and the statute direct the jurors away from, instead of toward that type of determination. In the absence of a specific instruction from the judge informing the jury that they would be permitted to make such an entry if they so found, I have no confidence that the jury could reach that conclusion on its own.
. The possibility that the jury could have fashioned some type of collective mitigating circumstance under the "catchall” provision was further diminished by the trial judge’s instruction that if the jurors found any “other” mitigating circumstances, they "must write them in the space provided and number them so that they may be distinguished one from the other.”
. I have examined the sentencing forms that were completed in twenty-five previous capital cases in which the death penalty was imposed and I have not found a single instance in which the answer as to the existence of aggravating or mitigating circumstances was left blank.