¶1specially concurring.
¶2I agree with the result and with all portions of the opinion except that (at 730) in which the majority concludes it is unnecessary to give instructions which would permit the jury to find defendant guilty of burglary but not guilty of felony-murder. I believe that under the facts of this case such instructions are required. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).
¶3Defendant admitted that he committed burglary but claimed that Mrs. Rabb was alive when he left the house and that two unidentified persons later entered the house, assaulted and killed her. This version of the events received some support from the testimony of a neighbor who reported having seen two suspicious looking characters peering over the victim’s wall. Thus, a clear question of fact was presented and, if defendant’s version was believed by the jury, it should have convicted him of burglary but acquitted him of murder. By refusing to give instructions that would have permitted this result, the court presented the jury with the Hobson’s choice of either freeing an admitted criminal or convicting him of felony-murder. This is the very result which Beckheld was forbidden by the Constitution because it enhances the possibility that the jury will erroneously find the defendant guilty of the felony-murder charge. The risk of such a result “cannot be tolerated in a case in which the defendant’s life is at stake.” Beck, supra, at 637-638, 100 S.Ct. at 2389-2390.
¶4In reaching their conclusion, the majority of this court cites Garrett v. United States, 471 U.S. -, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). That case concerned multiple punishments, a legal issue unrelated to the Beckprinciple. Further, the majority gains no support from the techni*51cal distinctions of lesser included offense made by Arizona cases such as State v. Arias, 131 Ariz. 441, 641 P.2d 1285 (1982).
The element the Court in Beckthought essential to a fair trial was not simply a lesser included offense instruction in the abstract, but the enhanced rationality and reliability [which] the existence of [such] an instruction introduced into the jury’s deliberations____
The Court in Beckrecognized that the jury’s role in the criminal process is essentially unreviewable and not always rational. The absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free. In Beck, the Court found that risk unacceptable and inconsistent with the reliability this court has demanded in capital proceedings, [citation omitted] The goal of the Beckrule, in other words, is to eliminate the distortion of the fact-finding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.
¶5Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 3160, 82 L.Ed.2d 340 (1984).
¶6This principle controls the situation presented by the case before us and requires that the burglary instruction be given. In my view, the question is not whether the underlying felony meets the technical definition of a lesser included offense when the charge is felony-murder. Rather, the question is whether the evidence would support a verdict that the defendant is guilty of the underlying felony but not of felony-murder. In such a factual context, Beckteaches that the jury cannot be presented with an all-or-nothing choice but must be given the third option. The jury must be able to reach and decide those issues fairly presented by the evidence. A different rule cannot be justified.