“ As noted, Instruction No. 21 directed the jury that if it "made unanimous findings . . . that one or more aggravating factors exist and that no mitigating factors exist, or that a mitigating factor or factors exist," it should proceed to weigh the aggravating factors against the mitigating factors. ”

“ In Mills, an impermissible juror unanimity requirement was imposed by a jury verdict form stating: "Based upon the evidence we unanimously find that each of the following mitigating circumstances which is marked "yes" has been proven to exist. . . ." 486 U.S., at 387, 108 S.Ct. at 1871. McKoy v. North Carolina, supra, presented a similar situation. In McKoy, the jury had been instructed both orally and in writing that it had to make unanimous findings on the existence of mitigating factors before proceeding to consider them. ”

“ Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859 (1976) (MARSHALL, J., dissenting) , I would grant the application for stay and the petition for certiorari and vacate petitioner's death sentence even if I did not believe this case otherwise merited review. ”