¶1Concurring in Part and Dissenting in Part.
¶2I concur with so much of the opinion as affirms the conviction. However, I must respectfully dissent from that part of the opinion that remands this case to circuit court for a new penalty phase. The circuit judge was correct in denying the motion for an instruction on a sentence of life without the benefit of probation or parole. The conclusion by the trial judge that the old penalties, including a sentence of death, were not clearly mitigated by the new penalty provisions was proper. The directions of Commonwealth v. Phon, Ky., 17 S.W.3d 106 (2000), should not be applied automatically. The trial judge is the key factor in the giving of jury instructions.
If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.
¶3I would affirm the conviction and sentence in all respects.