OPINION
The State’s motion for rehearing having been granted, our opinion as follows shall be substituted for our original opinion filed on December 4, 1989.
Defendant-appellant, Robert Henderson, Jr., was convicted by a jury sitting in Ber*657nalillo County of first degree murder, criminal sexual penetration (CSP), kidnapping, aggravated burglary, and larceny. During the sentencing phase of trial, the jury gave Henderson the death penalty for first degree murder. In arriving at its sentence the jury found three aggravating circumstances: (1) murder of a witness, (2) murder during the commission of CSP, (3) murder during the commission of kidnapping. We find Henderson’s attack on his convictions to be without merit. However, we reverse the sentence of death and remand to the trial court for a new sentencing determination on the first degree murder conviction.
FACTS
The victim was discovered by her son on July 18, 1986, lying dead and unclothed on the living room floor in her home. Upon entering the home, the victim’s son noticed a smell of gas and saw that the back bedroom window had been broken out and that the bedroom was in a state of disarray. The victim was an eighty-nine year old widow known to have hired transients to do odd jobs around her house and to have taken transients into her home to feed them. The victim’s son found only two items missing from his mother’s home, a suitcase and a quilt.
Medical testimony established that the victim had received several blows to the head. Her ribs were fractured, presumably by someone pushing on her chest or crushing her. In addition, the victim had been strangled manually. Examination of the victim’s vaginal area suggested forcible penetration, but no remains of sperm were discovered. The victim probably still was alive during the sexual assault and during the time when she sustained the rib fractures. Death resulted from a combination of strangulation‘and the blows to her chest.
After his arrest, Henderson told police that on the night of the murder he went to the victim’s house at dark, looked into the house, heard sounds, and went around to knock on the front door. Henderson said that he had known the victim since 1977 and that they frequently had engaged in sexual intercourse. On the night in question, Henderson stated that the victim let him in, prepared food for him, and then voluntarily had sexual intercourse with him. Henderson stated that the victim then had a seizure, and that he attempted to administer manual resuscitation, or “CPR.” Henderson said he then carried her into the living room, falling as he did so. In the living room he again pressed on the victim’s stomach and chest in order to revive her. When Henderson saw that the victim was dead, he said he panicked and tried to wipe any trace of his fingerprints from the scene. The next day he returned, entered by breaking out the back window, tried to wipe off more fingerprints, turned on the gas, and stole the suitcase with the quilt in it. At trial, Henderson testified that he had lied when he told police that he had a sexual relationship with the victim. When asked if he had raped the victim, he answered, “Yes,” and when asked if he had beaten her, he answered, “Yes.” At the same time, he maintained that he did not remember having committed those crimes and that he “must have” raped and beaten the victim during an alcoholic blackout. Henderson repeated that he had tried to administer CPR to the victim.
Henderson is a thirty-four year old Navajo Indian who first began drinking at age eleven. After his mother’s death he lived in boarding schools around the country. By age twenty he was a chronic alcoholic, getting drunk nearly every day. Henderson became a drifter, unable to hold a job. When he could not afford liquor, he drank mouthwash, aftershave, or cleaning fluid to obtain alcohol. Medical testimony at trial established that Henderson was alcohol dependent and was required to use alcohol as self medication in order to function. After three days without alcohol Henderson could die. While incarcerated, Henderson required medication to prevent fatal alcohol withdrawal. Henderson was prone to blackouts, panic attacks, compulsive behavior, and rash impulses. During blackouts he still could walk around and talk, and it is possible that during a blackout period he could have committed the crimes for which he was convicted.
*658During voir dire, Henderson’s counsel elicited responses from several prospective jurors concerning their attitudes toward parole of capital offenders sentenced to life imprisonment. One prospective juror, subsequently excused for cause, stated that convicts serving a life term usually get out in ten years and that was wrong. Another prospective juror said that a death penalty was more effective in deterring crime because some life felons get out in five or six years. This person stayed on the jury. Another prospective juror stated, “[L]ife imprisonment means ten years and they parole out. Is anybody kept in prison for life?” The court instructed this prospective juror, “[T]he only tools that you will have to answer the question * * * is [sic] the instructions that I give you. Those instructions will say that the sentence you are to consider is life in prison and death.” This person sat on the jury.
One eventual alternate juror stated that perhaps the best thing to do is to put to death a life felon who would kill again. Another eventual alternate juror questioned whether a life felon could not be paroled and released. When the court instructed this person during voir dire that the only sentence she could consider would be life or death and asked her if she could follow the court’s instructions, she answered, “I think so.” Other prospective jurors on voir dire, who stayed neither as jurors nor alternates, likewise expressed reservations about the possibility that a life felon would be paroled.
During the penalty phase of trial, Henderson’s counsel requested an instruction be given to the jury as follows:
An inmate of [the state penitentiary] who was sentenced to life imprisonment as the result of the commission of a capital felony becomes eligible for a parole hearing after he has served thirty years of his sentence.
The court denied this requested instruction.
ISSUES RAISED ON APPEAL
On appeal, Henderson raises twenty-two issues, the following of which we find to be dispositive. These issues may be phrased as follows:
(1) Did the trial court err in rejecting Henderson’s proffered jury instruction to the effect that a person sentenced to life imprisonment would be eligible for parole in thirty years?
(2) Did the trial court err in allowing the jury to consider murder of a witness as an aggravating circumstance?
(3) Did the trial court err in allowing the jury to consider murder during the commission of a kidnapping as an aggravating circumstance?
(4) Did the trial court err in denying Henderson’s motion to require the court to sentence him for his collateral noncapital convictions prior to the jury’s deliberation on the sentence to be given him for the first-degree murder conviction?
We answer questions one and three in the affirmative, and question two in the negative. Our answer to question number four is rendered superfluous by our resolution of question number one, as shall be stated in our opinion herein. However, we conclude nonetheless that the option of pri- or sentencing on the noncapital offenses is a valid option available to a defendant who, in proper circumstances, requests such sentencing.
I. HENDERSON’S REQUESTED INSTRUCTION ON PAROLE ELIGIBILITY
We base our decision herein on the fundamental fairness, due process and eighth amendment rationales implicit in the decision in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), to the effect that “ ‘the jury [must] have before it all possible relevant information about the individual defendant whose fate it must determine,’ ” id. at 1003, 103 S.Ct. at 3454 (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976)), and in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), to the effect that states cannot limit the sentencer’s consideration of any relevant circumstance that could “cause it to decline to impose the death sentence.” Id. *659at 304, 107 S.Ct. at 1773. Nothing in our decision in State v. Clark, 108 N.M. 288, 772 P.2d 322, cert. denied, — U.S. -, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989), detracts from our belief that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) (quoting California v. Ramos, 463 U.S. at 998-99, 103 S.Ct. at 3452).
The requested instruction would have given the jury accurate information on what a life sentence actually means and would have served to correct misimpressions in some jurors’ minds that a life sentence means “five or six” years or some other erroneously conceived period of time. In actuality, Henderson received fifty-one years and six months imprisonment on the other convictions, to be served consecutively to the death penalty. We cannot believe that, had the jury known ahead of time that a life sentence actually meant a minimum of twenty-five years and nine months (assuming all meritorious deductions), plus another thirty years before Henderson even would be eligible for parole, it would not have been more likely to impose a life sentence instead of a death sentence. This particular jury had members on it who thought that life meant as little as “five or six years.” Such a jury was oriented impermissibly toward the death penalty even before it began its deliberations, and thus it was error for the court not to have restored a proper balance to the jury’s orientation by instructing it according to the requested instruction.
II. HENDERSON’S MOTION FOR PRIOR SENTENCING ON THE COLLATERAL NONCAPITAL OFFENSES
In Clark, we held that it is not error for the trial court to refuse to impose sentence for the noncapital offenses before the capital sentencing phase if the jury is instructed on the range of sentences available and if the jury is allowed to consider that range as a mitigating circumstance (always, at the defendant’s request). We now hold that it is error to refuse an instruction such as the one considered in Point 1 above, pertaining to the meaning of a life sentence. We further hold that the court should, if requested, either impose sentence on the collateral noncapital offenses or give the range of sentences on those offenses as in Clark.
We conclude, however, that the better course of conduct for a trial court to follow would be first to sentence the defendant on the noncapital offenses if requested. Here, of course, Henderson has already been sentenced correctly and validly on his noncapital offenses. On remand, the court should simply inform the jury as to the sentences it earlier gave Henderson on his noncapital offenses. Further, the defendant is also entitled, at his request, to have an instruction read to the jury on parole eligibility following a life sentence, as discussed in Point I above.
To clarify further the distinction between Clark and our present opinion, in Clark, the defendant requested the court to sentence him on the collateral noncapital offenses before the jury deliberated on the capital offense. While the court denied this motion, it did present to the jury a stipulated instruction on the range of sentencing options available for the collateral offenses. Unlike the present case, Clark did not request an instruction on the meaning of a life sentence. Instead, Clark introduced “expert” testimony and argued this issue to the jury. The Clark majority com eluded that, although such evidence and argument were improper and prejudicial, they amounted to invited and not fundamental error. 108 N.M. at 297-98, 772 P.2d at 331-332.
III. THE AGGRAVATING CIRCUMSTANCES
Henderson asserts error in the trial court’s allowing three aggravating circumstances to be considered by the jury in its deliberations on the death penalty. As provided in NMSA 1978, Section 31-20A-2 (Repl.Pamp.1987), aggravating circum*660stances are to be weighed against mitigating circumstances. WKat constitutes an aggravating circumstance is set forth in NMSA 1978, Section 31-20A-5 (Repl.Pamp. 1987). Subsections B and G, respectively, of Section 31-20A-5, provide that two of the aggravating circumstances to be considered by the sentencing court or jury are that, “the murder was committed with intent to kill in the commission of or attempt to commit kidnapping * * *; [and] the capital felony was murder of a witness to a crime or any person likely to become a witness to a crime, for the purpose of preventing report of the crime or testimony in any criminal proceeding * * Kidnapping is defined, in pertinent part, as “the unlawful taking, restraining or confining of a person, by force or deception, with intent that the victim * * * be held to service against the victim’s will.” NMSA 1978, § 30-4-1 (Repl.Pamp.1984).
In Clark, where we addressed this same issue, we noted that evidence was presented to the effect that Clark told others he had to kill his victim or it “would be the end for him.” 108 N.M. at 304, 772 P.2d at 338. While the same degree of certainty does not exist in the case before us as to the separate motives behind Henderson’s killing of his victim and his killing her as a witness, we nonetheless conclude that a plausible motive for the murder in this case was either a murder to silence a witness, or a murder to overcome the resistance of the rape victim. The lack of any other plausible motive, together with the acts of the defendant in attempting to avoid detection by destroying evidence at the scene that would tie him to the crime, convinces us that a jury could have reasonably inferred from the evidence that the murder was committed to prevent the victim from reporting the crime.
There is evidence in the record of a struggle by the victim. There is also evidence that immediately following the killing Henderson attempted to wipe his fingerprints from the scene. There is further evidence in the record that on the day following the murder Henderson returned to the scene, broke out a window to gain entrance, attempted once again to wipe the scene clean of any incriminating fingerprints, and turned on the gas jets in an effort to obliterate the entire crime scene. We believe that this evidence, along with other evidence in the record, was sufficient to establish the aggravating circumstance of murder of a witness.
The State has thus shown, insofar as this aggravating circumstance is concerned, why a more severe sentence should be imposed on Henderson compared to others found guilty of murder, as required by the holding in Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983); See State v. Guzman, 100 N.M. 756, 676 P.2d 1321, cert. denied, 467 U.S. 1256, 104 S.Ct. 3548, 82 L.Ed.2d 851 (1984).1
The legislature has given us the responsibility to review death sentences on appeal and determine whether the evidence supports the jury’s finding of a statutory aggravating circumstance. NMSA 1978, *661§ 31-20A-4(C)(1) (Repl.Pamp.1987). In assessing the death penalty we must apply that “greater degree of scrutiny” called for by the Constitution. Ramos, 463 U.S. at 999, 103 S.Ct. at 3452. In exercising that greater degree of scrutiny here, we conclude that the evidence as presented was sufficient to permit the jury to consider murder of a witness as an aggravating circumstance. On remand, the State may again present evidence on this question and the jury may again be permitted to consider murder of a witness as an aggravating circumstance, should the State once again carry its burden of proving this circumstance.
We reach a contrary conclusion, however, with respect to the aggravating circumstance of killing during the commission of a kidnapping. On oral argument on appeal, the State argued that one transaction can support proof of more than one crime. This is accurate. However, simply because there are sufficient elements present to prove more than one crime in the same transaction does not mean that more than one aggravating circumstance has been proven. While the same elements may be present in both instances, and here we do not find that this is the case, establishing the elements of an aggravating circumstance is not the same thing as establishing the elements of a crime.
Since the State made its case on kidnapping by arguing that in raping his victim Henderson simultaneously kidnapped her, the kidnapping and rape in this case, unlike the kidnapping and rape in Guzman, are inseparable. If we were to follow the State’s reasoning, however, virtually every rape would be simultaneously a kidnapping, and while that may be true to establish elements of two different crimes in one transaction, such reasoning does not suffice to establish the statutory aggravating circumstance. It does not necessarily follow, simply because Henderson raped his victim and then killed her, that Henderson possessed the “intent to kill in the commission of ... kidnapping” as required by Section 31-20A-5(B). In Guzman it was obvious that the defendant intended to kill his kidnapped victim during the course of the kidnapping. Here, however, assuming arguendo that rape unequivocally means kidnapping, it is not clear to us that Henderson intended to kill his victim during the commission of a kidnapping. We find it more likely that he intended to kill the victim because she was a potential witness against him. We find, in other words, that the evidence as presented does not establish the statutory aggravating circumstance of killing in the commission of a kidnapping, and thus the trial court erred in allowing the jury to consider this aggravating circumstance. On remand, as we shall discuss below, the State is barred by double jeopardy considerations from once again presenting evidence on the aggravating circumstance of killing during the course of kidnapping.
The State asserts that a harmless-error rationale may be applied here, relying on Clemons v. State, 535 So.2d 1354, 1361-64 (Miss.1988), cert. granted in part, — U.S. -, 109 S.Ct. 3184, 105 L.Ed.2d 693 (1989), and Pinkney v. State, 538 So.2d 329, 355-57 (Miss.1988), petition for cert. filed, May 12, 1989. The State contends that when one of several aggravating circumstances is found invalid by a reviewing court, it is harmless error so long as one or more other aggravating circumstances properly have been considered by the jury. We now address the State’s argument on this point.
The court in Zant, 462 U.S. at 884, 103 S.Ct. at 2746, held that, under Georgia’s death penalty statute, invalidation of one aggravating circumstance did not invalidate automatically the sentencing proceeding. The Georgia sentencing statute is, however, unlike the New Mexico statute in that the use of statutory aggravating circumstances in Georgia is limited to the narrowing of the class of first degree murders to those that are capital offenses, subject to the death penalty. Thereafter, the jury does not consider the statutorily defined circumstances in deciding whether a particular individual should receive the death penalty. By contrast, New Mexico requires the jury to weigh aggravating and *662mitigating circumstances in deciding whether to impose the death sentence. The Zant court carefully observed that it did “not express any opinion concerning the possible significance of a holding that a particular aggravating circumstance is ‘invalid’ under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its [sentencing] discretion * * *.” 462 U.S. at 890, 103 S.Ct. at 2749.
In Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), and Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983), however, the Court addressed the question it had avoided in Zant. Both of these cases dealt with the Florida statute, pursuant to which a judge had entered written findings of aggravating and mitigating circumstances before imposing the death sentence. Both cases also concerned a subsequent determination that one of the aggravating circumstances was invalid under the state statute. In Barclay, the Court approved the use of a harmless-error analysis when the trial court had found several aggravating factors but no mitigating factors; in Goode, the Court approved of independent reweighing of the findings by the appellate court when both aggravating and mitigating factors had been found by the trial judge.
These cases are distinguishable from the case before us. First, in New Mexico, while the jury does return special interrogatories on aggravating circumstances, it does not return special interrogatories that reveal whether it found any mitigating circumstances. Thus, it is not possible to tell on appeal whether any mitigating circumstances were found, or what weight they were given relative to the aggravating circumstances. While, in deciding some constitutional issues, this court does reweigh or balance facts found at trial, here we also would be required to reweigh the evidence itself.
Second, the challenges to the instructions in this case are constitutional challenges, not statutory challenges. In Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), the Court affirmed reversal of a death sentence under Oklahoma law, after one of the aggravating circumstances was determined to be unconstitutionally vague. Oklahoma, like New Mexico, requires the jury to weigh aggravating and mitigating circumstances in exercising its sentencing discretion. Writing for the Court, Justice White noted that Oklahoma appellate courts do not attempt to save a death penalty when an aggravating circumstance has been found invalid or unsupported by the evidence, and reasoned that the Tenth Circuit Court of Appeals “cannot be faulted for not itself undertaking what the state courts themselves refused to do.” Id. at 365, 108 S.Ct. at 1860. The case was remanded to the Oklahoma appellate court for further proceedings under state law to determine the appropriate sentence.
Maynard, although affirming reversal of the sentence at issue, leaves unanswered whether, under a sentencing statute such as New Mexico’s, a death sentence must be overturned when one of the aggravating circumstances is invalidated on constitutional grounds. As New Mexico courts do not ordinarily “reweigh” evidence on appeal, cf. Goode, 464 U.S. at 86-87, 104 S.Ct. at 383, (findings reweighed on appeal), we believe such a procedure to be particularly inappropriate as a means of “saving” a death sentence in light of our statutory duty to exercise special scrutiny of death sentence determinations. See Guzman, 100 N.M. at 761, 676 P.2d at 1326 (it is not this court’s duty to retry sentencing phase for what may be a better result); State v. Garcia, 99 N.M. 771, 781, 664 P.2d 969, 979, cert. denied, 462 U.S. 1112, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983); NMSA 1978, § 31-20A-4 (Repl.Pamp.1987). Under our statutory scheme, and because the record will not and does not reveal the basis of the jury’s decision, we never could conclude beyond a reasonable doubt that, absent consideration of the invalid circumstance, the jury would have reached the same result.
In other words, in a state such as New Mexico where aggravating and mitigating *663circumstances are weighed by the jury, when one or more of the aggravating circumstances is found to be invalid the entire death penalty sentence cannot be saved. The harmless error rationale put forth in Clemons and Pinkney would not be applicable to the specific statutory scheme in New Mexico where one cannot tell from the judgment of the jury what mitigating circumstances, if any, were found. This court has no reliable method of weighing the effect of the invalidity of one aggravating circumstance in the minds of the jurors without this information. Hence we reject the State’s harmless-error argument.
The eighth amendment mandates that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (discussing the holding in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)).
Statutory aggravating circumstances serve to channel the jury’s sentencing discretion in a manner that meaningfully distinguishes capital offenses in terms of the degree of culpability of the murderer. These circumstances must “reasonably justify] the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant, 462 U.S. at 877, 103 S.Ct. at 2742. As it is the duty of this court under our death penalty statute to assure proportionality in sentencing, see Section 31-20A-4(C)(4), it is appropriate for us to inquire in this case whether instructing the jury on particular aggravating circumstances “genuinely narrow[ed] the class of persons” to those upon whom imposition of the death penalty was appropriate. Zant, 462 U.S. at 877, 103 S.Ct. at 2742. “[I]f a state wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980) (emphasis added).
Double jeopardy bars resubmission of aggravating circumstances as to which no substantial evidence was presented. Finally, at a new sentencing hearing, the prosecution may not again submit instructions on the aggravating circumstance of murder committed in the course of a kidnapping. Our determination that this aggravating circumstance was submitted erroneously to the jury because of insufficient evidence raises double jeopardy consequences for the prosecution on remand.
In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), the defendant’s death sentence was overturned on appeal because insufficient evidence supported the aggravating circumstance of an especially heinous, cruel, or depraved killing. However, the trial court had refused to consider the circumstance of a murder for pecuniary gain because of an erroneous belief that this circumstance only applied in cases of murder-for-hire. The Supreme Court held that Double Jeopardy did not bar a new sentencing proceeding on the murder for pecuniary gain, but its holding implied that the new proceeding should be limited to this aggravating circumstance.
Writing for the majority, Justice White reasoned:
It is true that the sentencer must find some aggravating circumstance before the death penalty may be imposed, and that the sentencer’s finding, albeit erroneous, that no aggravating circumstance is present is an “acquittal” barring a second death sentence proceeding---[However, while the] defendant may argue on appeal that the evidence presented at his sentencing hearing was as a matter of law insufficient to support the aggravating circumstances on which his death sentence was based * * * the Double Jeopardy Clause does not require the reviewing court, if it sustains that claim, to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected * * *. We hold, therefore, that *664the trial judge’s rejection of the “pecuniary gain” aggravating circumstance in this case was not. an “acquittal” of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court * * * [nor] foreclose a second sentencing hearing
Id. at 156-57, 106 S.Ct. at 1755-56 (second emphasis added). See also State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981) (under North Carolina statute requiring jury to find and weigh statutory aggravating circumstances against mitigating circumstances in arriving at its decision whether to impose death penalty, State is proscribed from again presenting evidence of aggravating circumstances at new sentencing proceeding if: (1) insufficient evidence was presented at the preceding hearing; (2) the jury at the preceding hearing after considering evidence failed to find that circumstance existed; or (3) there would be other legal impediment such as felony-murder merger rule to its use, but state may rely at new death sentence proceeding on any aggravating circumstance as to which it offered sufficient evidence at hearing from which appeal taken); see generally Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (sentencer’s finding, albeit erroneous, that no aggravating circumstance is present is an “acquittal” barring a second death sentence proceeding); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (double jeopardy bars prosecution from seeking second conviction when a reviewing court finds evidence insufficient to support judgment against defendant just as it does when there has been an acquittal by the trial court). Cf. Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983); Brasfield v. State, 600 S.W.2d 288 (Tex.Crim.App.1980) overruled on other grounds, Janecka v. State, 739 S.W.2d 813 (Tex.Crim.App.1987). See generally, Bennett, Double Jeopardy and Capital Sentencing: The Trial and Error of the Trial Metaphor, 19 N.M.L.Rev. 451 (1989).
As we specifically have held that the court erred in instructing the jury on the aggravating circumstance of murder during the commission of kidnapping, because the State failed to present substantial evidence on this circumstance, the State is precluded from again seeking to so instruct the jury.
To clarify, on remand the jury may consider the existence of two aggravating circumstances only. In other words, it is open to the jury on resentencing to determine, in addition to the alleged aggravated circumstance of killing during the commission of CSP, that the victim’s murder was “murder of a witness to a crime,” provided the State satisfies the jury beyond a reasonable doubt that the killing was committed during CSP and “for the purpose of preventing report of that crime.” See Clark, 108 N.M. at 304, 772 P.2d at 338.
However, it shall not be open to the State to attempt to prove on remand that independent facts exist which support murder during the course of kidnapping. Finally, on remand, the new sentencing jury should be instructed that it need not unanimously find the existence of a mitigating circumstance before considering it. See Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). We disapprove of any language in Clark to the contrary.
For all these reasons, we reverse the death sentence and remand this case to the trial court for a new sentencing hearing to be conducted in a manner that is not inconsistent with our conclusions above.
IT IS SO ORDERED.
BACA and WILSON, JJ., concur.
RANSOM and MONTGOMERY, JJ., Concur in part, Dissent in part.