¶1concurring specially and dissenting:
¶2In concur in part VIII (JURY INSTRUCTIONS) of the Court’s opinion so far as it goes. I write only to point out that Rhoades challenged the propriety of the reasonable doubt instruction given by the trial court. The portion of this instruction that Rhoades asserted was the most objectionable stated:
A reasonable doubt is an actual doubt based upon the evidence or lack of evidence. It is such doubt as you are conscious of after going over in your minds the entire case and giving consideration to all the testimony. If you then feel uncertain and not fully convinced that the defendant is guilty or if you feel that you would not be acting reasonably should you find him guilty, and if you believe that a reasonable man in any matter of like importance in his own affairs would hesitate to act because of such doubt as you are conscious of having, then that is a reasonable doubt, and *81the defendant is entitled to the benefit of it.
¶3Rhoades has cited Cage v. Louisiana, — U.S. -, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), among the authorities upon which he relies in challenging this instruction. In Cagethe Court found that the phrases “grave uncertainty,” “actual substantial doubt,” and “moral certainty” combined together in a reasonable doubt instruction caused the instruction to violate the Due Process Clause.
¶4The instruction in this case does not have these same defects. Although “actual doubt” and “conscious” are used in the instruction in this case, they do not, in my view, cause the same problem that the Court saw with the instruction in Cage.
¶5I dissent from part X (VICTIM IMPACT STATEMENTS) of the Court’s opinion. In applying the harmless error rule in death penalty cases where victim impact statement information was included in the record before the trial court, I would require a statement by the trial court that the information had not been considered.