(concurring) — I concur with the result reached by the majority on the grounds that, under Tison v. Arizona, 481 U.S. 137, 158, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987), the State bears the burden of proving Covell Thomas was a major participant in the crime before the death penalty may be imposed. See also State v. Roberts, 142 Wn.2d 471, 503-04, 14 P.3d 713 (2000). Instructional error relieved the State of this burden, and therefore, the death penalty must be vacated. However, instructional error in a “to convict” instruction may be harmless. See State v. Brown, 147 Wn.2d 330, 338-39, 58 P.3d 889 (2002). I concur *877with the majority that under the facts of this case, that error was harmless, and join in affirming Thomas’s first degree murder conviction.