ELDRIDGE, Judge.

In March 1985 Ralph William Mills was tried for first degree murder before a jury in the Circuit Court for Allegany County. His appeal challenges the resulting conviction and death sentence. We shall affirm.

The parties have agreed pursuant to Maryland Rule 828(g) that the following facts are relevant to the disposition of this appeal. Mills shared cell number 20 on "G-One" tier at the Maryland Correctional Institution in Hagerstown with Paul Robin Brown. At 10:47 p.m. on August 6, 1984, correctional officers were called to the cell to investigate a disturbance. When the officers arrived, Mills demanded to be released from his cell, saying, "my cell buddy is dead." The cell door was opened and Mills emerged, carrying a blood-covered "shank," or home-made knife, at his side. Mills stated several times that he had "killed his cell buddy." Brown's body was found lying on his bunk, stabbed six times in the chest and thirty-nine times in the back.

About three weeks before this homicide, Mills had written to the warden, threatening to kill his cell mate (who at that time was not Paul Robin Brown) if certain complaints, primarily concerning visitation, were not satisfactorily resolved. At the trial another inmate, David Gallahan, testified for the defense that Brown had lent him the murder weapon prior to the homicide, and had asked for and received it back on the day of the incident.

Mills presents us with numerous questions for review, some relating to the guilty verdict and some relating just to the sentence of death.

I.

The first two questions presented concern the denial of Mills's motions to strike two prospective jurors for cause. Mills's counsel conceded in this Court that Mills had exercised only sixteen of his allotted twenty peremptory challenges. Neither of the prospective jurors whom Mills moved to strike for cause was impanelled to serve as a juror or to serve as an alternate.

Assuming for purposes of argument that the trial judge should have dismissed the two veniremen for cause, it is difficult to understand how his failure to do so could have prejudiced Mills when the defendant's peremptory challenges were not exhausted and the two veniremen were not seated. We have previously stated that when an accused has not exhausted his peremptory strikes, failure to disqualify a prospective juror for cause is not reversible error. White v. State, 300 Md. 719, 728, 481 A.2d 201 (1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 837 (1985). See Booth v. State, 306 Md. 172, 185, 507 A.2d 1098 (1986), vacated on other grounds, ___ U.S. ___, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987).

We have also repeatedly held that a claim of error in the inclusion or exclusion of a prospective juror is ordinarily abandoned when the defendant or his counsel indicates satisfaction with the jury at the conclusion of the jury selection process. Booth v. State, supra, 306 Md. at 185, 507 A.2d 1098; Foster v. State, 304 Md. 439, 450-451, 499 A.2d 1236 (1985), cert. denied, ___ U.S. ___, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986); Thomas v. State, 301 Md. 294, 310, 483 A.2d 6 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985); White v. State, supra, 300 Md. at 729, 731, 481 A.2d 201; Calhoun v. State, 297 Md. 563, 579-580, 468 A.2d 45, 52 (1983); cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984). In this case, after the voir dire and peremptory strikes, the defense was asked if the jury panel was acceptable to the defendant. After checking the identity of one juror, defense counsel stated: "Your Honor, the Jury as impaneled is acceptable to the Defense." Under these circumstances it would be idle for us to consider whether or not the trial court should have struck the two veniremen for cause.

II.

Mills contends that the trial court should not have admitted into evidence two color photographs of the victim, showing his stab wounds and blood.

At trial this issue developed as follows. The first photograph admitted into evidence (State's Exhibit 3) was a color photograph of the prison cell wall above the victim's bunk. The photograph depicts three words fingerpainted in blood as well as a portion of the victim's body. Counsel for the defendant objected that the photograph "[s]hows some bias being a color photograph like it is," and argued that the State should produce a black and white photograph. The trial judge asked: "You concede that the fact that it's color doesn't automatically exclude it?" Counsel for the defendant responded, "I agree." The judge then ruled that if the State could establish that the colors were accurate, the photograph would be admitted into evidence, and afterwards it was so admitted.

The next photographs in evidence (State's Exhibits Nos. 5, 6, 7, 8, 9, 10) were admitted one after another, and resembled the first photograph in size, and coloration. Exhibit 5 depicted the feet of the victim, in socks; no blood was apparent. There was no objection to Exhibit 5 from defense counsel. Exhibit 6 showed the toilet in Mills's cell as it appeared when the homicide was first investigated, with red stained pieces of white cloth or paper visible in the toilet bowl. Defense counsel objected to Exhibit 6. Exhibit 7 showed a corner of the cell, including the window, a cabinet, some clothes drying from a string, and the hand of the victim. No objection was made to the admission of this photograph. Exhibit 8 showed the back of the victim with blood draining from stabbings scattered from the shoulders to the waist level. Defense counsel objected to the admission of Exhibit 8. Exhibit 9 showed the face and chest of the victim, with blood draining from wounds, and there was no objection to this photograph. Exhibit 10 showed the victim lying face up on his bunk and showed part of the wall containing three words fingerpainted in blood. Blood could be seen, but not specific wounds. There was no objection with respect to Exhibit 10.

The trial court admitted Exhibits 5, 7, 9 and 10 into evidence, there being no objection to them. The court postponed consideration of Exhibits 6 and 8, which were objected to, until after the completion of the testimony of the witness who identified and vouched for the accuracy of all six photographs. With the jury excused from the courtroom, the court turned to the two challenged photographs. Mills moved to exclude the photograph of the toilet (Exhibit 6) and the photograph of the victim's back (Exhibit 8), arguing that the photographs would needlessly prejudice the jury, as the pictures reflected facts which were not disputed and which, it was claimed, could have been easily established by testimony and less vivid photographs.

The State pointed to testimony that all of the photographs were fair and accurate. With respect to the picture of the toilet, the State contended that it would not "unduly inflame" the jurors and that its probative value outweighed its prejudicial value. As to the picture of the victim's back wounds, the State argued that it "completes the picture" by showing to the jury wounds not visible in the previously admitted pictures of the victim lying face up, and that it was the only photograph of the back wounds.

The trial judge admitted the challenged photographs, ruling as follows:

"Well, the purpose of the . . . introduction of photographic evidence is to enable the side which offers it to offer probative evidence to the triers of fact, to the jurors. I know of no rule of evidence that requires me to guard the sensibilities of jurors whether we know what they are or not. I think the issue is whether or not that photograph would tend to inflame the jurors to in any way provide an exhibit or a bit of evidence in a sensational way. I think if the State sought to introduce eight photographs taken from slightly different angles, or to a series of photographs one of each area where there's a wound, then yes I think it would be potentially inflammatory. But to offer one single photograph of the . . . [victim] as he was found, be it in color or black and white, I don't think is unduly prejudicial and designed to inflame, and I don't think it will inflame. "I'll overrule the objection and permit all the exhibits to come in."

On appeal, Mills contends: "Over objection, the trial court admitted State's Exhibits Eight and Nine." (Brief, p. 12). The actual objection was, "We would object to the No. 8 [the back wounds], Your Honor, along with No. 6 [the toilet bowl]. As to the others we have no objection." Accordingly, the present contention of error in the admission of the State's Exhibit 9, showing the face and chest of the victim, was clearly waived. See Rule 4-322. Moreover, even if No. 9 had been objected to, it is much less bloody and had much less potential for prejudice than No. 8. As we shall conclude that the admission of No. 8 furnishes no ground for reversal, the same conclusion is applicable to the admission of No. 9.

Mills and the State agree that the admissibility of photographs turns upon a balancing of their probative value against their potential for prejudice, and that the application of this test is a matter committed to the discretion of the trial judge. See, e.g., State v. Tichnell, 306 Md. 428, 463, 509 A.2d 1179 (1986); Grandison v. State, 305 Md. 685, 729, 506 A.2d 580, cert. denied, ___ U.S. ___, 107 S.Ct. 38, 93 L.Ed.2d 174 (1986); Reid v. State, 305 Md. 9, 20, 501 A.2d 436 (1985); Johnson v. State, 303 Md. 487, 502-504, 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986), and cases there cited. The standard was set forth in Johnson v. State, supra, where this Court found no error in the admission of a color photograph and black and white photographs of a homicide victim. We there stated as follows (303 Md. at 502, 495 A.2d 1):

"We have consistently held that whether or not a photograph is of practical value in a case and admissible at trial is a matter best left to the sound discretion of the trial judge. Bowers v. State, 298 Md. 115, 135-36, 468 A.2d 101, 111-12 (1983), quoting Cook v. State, 225 Md. 603, 608, 171 A.2d 460, 463 (1961), cert. denied, 368 U.S. 970, 82 S.Ct. 445, 7 L.Ed.2d 398 (1962). A court's determination in this area will not be disturbed unless plainly arbitrary. Id. Under this standard, we have permitted the reception into evidence of photographs depicting the condition of the victim and the location of injuries upon the deceased, Clarke v. State, 238 Md. 11, 21-22, 207 A.2d 456, 461-62 (1965); the position of the victim's body at the murder site, Brice v. State, 264 Md. 352, 368-69, 286 A.2d 132, 140 (1972); and the wounds of the victim, Madison v. State, 200 Md. 1, 7-8, 87 A.2d 593, 595 (1952). On certain occasions, photographs have also been admitted to allow the jury to visualize the atrociousness of the crime — a circumstance of much import where the fact-finder must determine the degree of murder. See Fuller v. State, 45 Md. App. 414, 420-21, 413 A.2d 277, 280-81 (1980).

* * * * * *

We have previously held that photographs of the deceased are admissible even where the location of injuries was previously described and conceded by the defendant. Smith v. State, 182 Md. 176, 187, 32 A.2d 863, 867 (1943); Snowden v. State, 133 Md. 624, 631, 106 A. 5, 8 (1919). The Court reasoned that since the photographs were mere representations of what was already in evidence, their introduction could not be held to have injured the accused. Smith, 182 Md. at 187, 32 A.2d at 867."

Mills contends that "the more shocking the photo, the more important must be its contribution to the case in order for admission to be justified." (Brief, p. 13). He argues that Exhibit 8 added nothing of substance to the State's case, because the medical examiner and other witnesses testified as to the stabbings and because this testimony was never controverted. The State responds that any prejudice caused by the photograph was justified by its probative value on the issues of premeditation and provocation.

We are unable to conclude that Exhibit 8 was likely to so distort the jury's deliberations that its admission was "plainly arbitrary," Johnson, supra, 303 Md. at 502, 495 A.2d 1. When the State sought to admit the photograph, no stipulation had been offered that the victim had been stabbed six times in the chest and thirty-nine times in the back. Mills does not contend that the photograph in any way misrepresented facts. We have examined Exhibit No. 8 and do not find it particularly gory or gruesome. Compare the photograph at issue in Smith v. State, 182 Md. 176, 187, 32 A.2d 863, 867 (1943) (upholding the admission of a photograph showing the victim's body partially exhumed one week after fatal axe blows to the head, even though the facts represented were already in evidence without objection and were not disputed).

In this Court, Mills also contends that the trial judge should not have allowed Exhibits 8 and 9 to be reintroduced in evidence at the sentencing proceeding. Before the jury was returned for this phase of the trial, the State announced that it would move to reintroduce all trial testimony and exhibits. Counsel for defendant made sure that two exhibits marked for identification but not introduced would be kept from the jury, but, when asked by the court if he had any objection to the reintroduction of the trial exhibits and documents, counsel replied: "No, Your Honor." Mills has obviously waived the point. Rule 4-322(a).

III.

Next, Mills argues that the trial court erred in excluding evidence of the victim's character and reputation.

As we recently pointed out in Mack v. State, 300 Md. 583, 603-604, 479 A.2d 1344 (1985), whether the exclusion of evidence constituted reversible error is ordinarily not preserved for review "unless there has been a formal proffer of what the contents and relevance of the excluded testimony would have been." See Peregoy v. Western Md. R.R. Co., 202 Md. 203, 209, 95 A.2d 867 (1953). The record shows that no such proffer was made in this case.

Conceding the absence of a proffer, Mills surmises on appeal that trial counsel made "an apparent effort to establish that Brown was the aggressor in the altercation with appellant" and "sought to elicit evidence that Brown had both assaultive and homosexual tendencies" of the sort that "could well have led the jury to believe that appellant's act was not premeditated and unprovoked." (Brief, pp. 15, 17, 18). Even now, however, Mills does not contend that any of the witnesses would have testified that Mills struck at Brown in self defense or retaliation because of homosexual advances. We are left with appellate counsel's mere speculation in his brief that "some aspect of the victim's character and personality led to his demise." ( Id., p. 20). Something more than this type of vague speculation is required before we can conclude that the trial judge erred in excluding the evidence.

The principle that ordinarily the record must contain a "proffer to show precisely what the testimony, if admitted, would have established," does have an exception "where the tenor of the questions and the replies they were designed to elicit is clear," Peregoy v. Western Md. R.R. Co., supra, 202 Md. at 209, 95 A.2d 867. In the instant case, it is far from clear that anything relevant might have been established by defense counsel's questions at trial concerning the victim's character.

Moreover, appellate counsel's speculation in this Court that the homicide might have been in self defense or in retaliation for a homosexual advance, in addition to not being reflected in a proffer or the tenor of the questions, is squarely contrary to all of the evidence. Before the killing Mills wrote to the Warden threatening to kill his cell mate if his visitation privileges were curtailed. Some weeks later Mills took his cell mate's "shank," put on a glove to improve his grip, and stabbed the cell mate forty-five times on his chest and back as he lay on his bunk. The cell showed no sign of any struggle. Before being let out of the cell, Mills fingerpainted the words "Helter Skelter's Son" in blood on the cell wall. On being let out, Mills told the guards that he killed his cell mate. In the absence of a proffer, it would appear beyond doubt that Paul Brown's character was irrelevant and that testimony on this subject was properly excluded.

IV.

The defendant Mills also argues that the trial judge erred in sustaining objections to certain questions which defense counsel asked the witness James Mills, who was the defendant's uncle and was a fellow inmate. The record on this point reads as follows:

"Q Well first before I get into that let me ask you something else. You indicated that you saw Mr. Mills on the tier on an almost daily basis?

"A Yes.

"Q How would you characterize his conduct in the institution?

"PROSECUTING ATTORNEY: Objection.

"BY THE COURT: Objection sustained.

"Q During the time that you were on G cell with Mr. Mills, do you know whether or not he had any trouble with the guards or other inmates?

"PROSECUTING ATTORNEY: Objection.

"A None at all.

"BY THE COURT: Just a minute, Mr. Mills. When you hear an objection, please don't answer the question. "Objection sustained.

"Q Did you ever personally see any altercation with Ralph Mills between Ralph Mills and any of the guards?

"PROSECUTING ATTORNEY: Objection.

"BY THE COURT: Objection sustained.

"Q Did you ever personally see any altercation between Ralph Mills and any of the other inmates?

"PROSECUTING ATTORNEY: Objection.

"BY THE COURT: Objection sustained."

The defendant asserts in this Court that the purpose of the questions was to elicit evidence concerning the defendant's nonviolent character and reputation. See Maryland Code (1974, 1984 Repl. Vol.), § 9-115 of the Courts and Judicial Proceedings Article, allowing a witness to give his personal opinion of another person's character where character evidence is relevant; Durkin v. State, 284 Md. 445, 397 A.2d 600 (1979). See also Poole v. State, 295 Md. 167, 181, 453 A.2d 1218 (1983); Comi v. State, 202 Md. 472, 478-479, 97 A.2d 129, cert. denied, 346 U.S. 898, 74 S.Ct. 223, 98 L.Ed. 399 (1953). The defendant, however, frankly acknowledges that the above questions were "not couched . . . in . . . terms . . . [of] the character and reputation of Appellant for violence." (Brief, p. 22).

As the questions were not worded in terms of character evidence, as the witness was not asked to give an opinion concerning the defendant's character or reputation, and as there was no proffer or explanation given to the trial judge by defense counsel, we cannot conclude that the trial judge committed error in sustaining the objections.

Furthermore, even if it be assumed arguendo that the trial court did err in sustaining the objections, such error would be harmless. In light of the overwhelming evidence of the defendant's guilt and the nature of his crime, it is virtually inconceivable that the view of a fellow inmate, who was the defendant's uncle, that the defendant has previously been nonviolent in the institution, might have changed the guilty verdict. We are convinced, "beyond a reasonable doubt, that the error in no way influenced the verdict," Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). "[T]here is no reasonable possibility that the [exclusion of the] evidence . . . may have contributed to the rendition of the guilty verdict." Ibid.

V.

Mills's next contention is that the trial court erred in denying his motion to impanel separate juries for the guilt or innocence phase and the penalty phase of his trial. Mills's argument is identical to that rejected by the Supreme Court in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), and rejected by this Court in several cases. See State v. Tichnell, supra, 306 Md. at 458, 509 A.2d 1179; Booth v. State, supra, 306 Md. at 192; Evans v. State, 304 Md. 487, 522, 499 A.2d 1261 (1985), cert. denied, ___ U.S. ___, 106 S.Ct. 3310, 92 L.Ed.2d 722 (1986); Foster v. State, supra, 304 Md. at 453-466, 499 A.2d 1236. These cases are dispositive of the issue.

VI. A.

The defendant's principal argument is that the Maryland capital punishment statute, as applied, is unconstitutionally mandatory. Mills's analysis begins with Code (1957, 1982 Repl. Vol.), Art. 27, § 413(h)(2), which provides as follows:

"If it [the court or jury] finds that the mitigating circumstances do not outweigh the aggravating circumstances, the sentence shall be death."

Former Maryland Rule 772A, in effect at the time of the defendant's trial, implemented the statutory provision by giving the jury a form to fill out. The instructions on the form told the jury that if one or more aggravating circumstances were present, and if no mitigating circumstances were found, the jury should enter "Death" on the part of the form for the sentence. In the present case, the jury found that one aggravating factor had been established, namely that Mills was an inmate in a correctional institution at the time he committed the murder. The jury found no mitigating circumstance, and it determined that the sentence should be death.

Relying primarily on Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Mills maintains that "any statutory scheme which requires the return of a death sentence without providing the sentencer with an option to impose a life sentence is invalid." (Brief, p. 47). In this case, according to Mills, once the jury found one aggravating circumstance and no mitigating circumstances, the statute required the jury to return a sentence of death. Mills suggests that, although no mitigating factors were found, "there is nothing in the record to indicate that had the jurors been given a choice, any one of them would have considered the ultimate sanction appropriate." ( Ibid.). Because, in the defendant's view, the Maryland statute may mandate a death sentence under circumstances where the sentencing authority is not convinced that death is the appropriate punishment, it is claimed that the statute violates the Eighth and Fourteenth Amendments.

This Court has rejected arguments like that set forth above on several occasions. See, e.g., State v. Tichnell, supra, 306 Md. at 467-468, 509 A.2d 1179; Booth v. State, supra, 306 Md. at 224, 507 A.2d 1098; Huffington v. State, 304 Md. 559, 587, 500 A.2d 272 (1985), cert. denied, ___ U.S. ___, 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986); Foster v. State, supra, 304 Md. at 473-475, 499 A.2d 1236; Calhoun v. State, supra, 297 Md. at 637, 468 A.2d 45; Tichnell v. State, 287 Md. 695, 728, 415 A.2d 830 (1980). We have held that the Maryland capital punishment statute does not require the death sentence if the jury believes death to be inappropriate and that it is not a mandatory death penalty statute. As explained in the Foster case (304 Md. at 474-475, 499 A.2d 1236),

"§ 413(g)(8) includes as mitigating circumstances '[a]ny other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances in the case.' We held in Tichnell I that, because of this provision, the Maryland statute 'is not a mandatory death penalty statute,' and satisfies the standards of Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). 287 Md. at 728, 415 A.2d 830. We reiterated this holding in Calhoun, pointing out that under the Maryland statute 'the sentencing authority may articulate any factor it finds in mitigation.' 297 Md. at 637, 468 A.2d 45.

"Therefore, the defendant erroneously argues that 'if the defendant fails to meet his burden of proof and persuasion' concerning mitigating circumstances, death 'may be mandated where the sentencer is unconvinced that death is the appropriate punishment.' . . . A sentencing authority, unconvinced that death is appropriate, may list as a mitigating circumstance whatever factor or factors may have led to this conclusion, irrespective of what the defendant produced or argued. If the sentencing authority perceives anything relating to the defendant or the crime which causes it to believe that death may not be appropriate, it may treat such factor as a mitigating circumstance and decide that it outweighs the aggravating circumstances."

The defendant Mills responds by indicating that the above-quoted holding may be accurate if all twelve jurors can agree upon the same mitigating factor and can agree that it outweighs the aggravating factor. (Reply brief, p. 16). Mills asserts, however, that "[t]he defense adduced evidence of a number of such [mitigating] factors, and individual jurors may well have been persuaded of their existence. Again, any number of jurors may have concluded . . . that the mitigating factors outweighed the aggravating. . . . Nevertheless, the mechanical operation of the statutory scheme permitted no choice — the jurors were required to return a death sentence whether they believed it justified . . . or not." ( Ibid.).

Under the defendant's construction of the statute, unless all twelve jurors can agree that some mitigating factor or factors exist, and further, unless all twelve jurors can agree on the existence of the same mitigating factor or factors, the jury must conclude that there are no mitigating factors and that, if an aggravating circumstance has been found, the sentence must be death. Additionally, according to the defendant, all twelve jurors must agree that the same mitigating factor or factors outweigh the aggravating circumstances in order for the penalty to be other than death. For example, under Mills's view, in a hypothetical case six jurors might believe that the accused was of "youthful age," that this factor outweighed the aggravating circumstances found, but that there were no other mitigating factors. Six other jurors might disagree concerning youthful age but might believe that the accused suffered from an unfortunate childhood, that this was a mitigating factor, and that it outweighed the aggravating factors. Yet because it could not unanimously mark "yes" to any one mitigating circumstance, according to Mills's theory the jury would be required to find that no mitigating circumstance existed and, therefore, would be required to return a sentence of death.

Like other challenges to the validity of the Maryland death penalty statute that have been made, the defendant's argument is premised upon an erroneous construction of the statute.

Nothing in the pertinent language of the death penalty statute purports to abolish the traditional common law and Maryland requirement that, absent waiver, jury determinations of critical issues must be unanimous. This requirement of unanimity generally extends to all matters submitted to the jury; it applies to the entire jury determination. As stated by this Court long ago, a "'verdict is the unanimous decision made by the jury . . . on the matters lawfully submitted to [it] in the course of the trial.' Unanimity is indispensable to the sufficiency of the verdict. . . ." Ford v. The State, 12 Md. 514, 549 (1859) (emphasis in original). The Maryland death penalty statute refers to "the jury" as a single entity, making its findings and determinations concerning the presence or absence of aggravating circumstances, the existence of mitigating circumstances, and the weighing of one set against the other. Art. 27, § 413, subsections (d), (f), (g) and (h). The jury is required to set forth its decisions on these matters on a form which, while relating to the sentence, is essentially a verdict sheet. The death penalty statute expressly reflects the traditional requirement of unanimity, as it provides in § 413(i) as follows (emphasis added):

"(i) Determination to be written and unanimous. — The determination of the court or jury shall be in writing, and, if a jury, shall be unanimous and shall be signed by the foreman."

See Harris v. State, 295 Md. 329, 339-340, 455 A.2d 979 (1983).

Consequently, the defendant Mills correctly argues that for the jury to determine that the sentence is to be life imprisonment, the decision that there are mitigating circumstances not outweighed by aggravating circumstances must be arrived at unanimously. Because of the same statutory requirement of unanimity, however, for the jury to determine that the sentence is to be death, the decision that there exists at least one aggravating circumstance which outweighs whatever mitigating circumstances may exist must also be arrived at unanimously. There is utterly no basis in the statutory language or in logic for Mills's conclusion that whenever the jurors cannot unanimously agree on the same mitigating circumstance or circumstances, the result will always be a sentence of death. As long as one juror believes that there exists a mitigating factor, and that this factor is not outweighed by the aggravating circumstances, and if such juror continues to adhere to his or her position, the sentence will not be death under the statutory scheme. It is true that, if there is ultimate disagreement among the jurors, there may be no jury determination of a life sentence. In this situation, however, there will also be no jury determination of a death sentence. Instead, the sentence will be life imprisonment under Art. 27, § 413(k)(2), which states:

"(2) If the jury, within a reasonable time, is not able to agree as to sentence, the court shall dismiss the jury and impose a sentence of imprisonment for life."

Thus, in the hypothetical case described earlier, where six jurors found the existence of the statutory mitigating factor of youthful age and believed that it was not outweighed by aggravating circumstances, but found no other mitigating factors, while the other six jurors refused to find the existence of youthful age but found the existence of a different mitigating factor, the jury as a single entity would not be able to indicate on the sentencing form that any particular mitigating factor existed because of the lack of unanimity among jurors. But, contrary to the defendant's argument, the same lack of unanimity would preclude the jury from indicating that no mitigating factors were present. And, as long as at least one of the jurors adhered to the view that there was a mitigating circumstance not outweighed by the aggravating circumstances, the sentence would ultimately be life imprisonment. Even if the other eleven jurors became convinced that there were no mitigating factors, it would nevertheless be improper for the jury to decide that no mitigating factors exist and that the sentence should be death. This would be "majority rule," contrary to the traditional Maryland requirement of jury unanimity which is expressly embodied in § 413(i) of the Maryland death penalty statute.

To reiterate, as long as one juror perceives any factor relating to the crime or the defendant which he regards as a mitigating factor and which he believes is not outweighed by the aggravating circumstances, the jury will not be able to determine that the sentence shall be death. Moreover, as pointed out repeatedly in our cases, if a juror does not believe that death is the appropriate punishment, whatever factor relating to the crime or the defendant that led to such belief may be regarded by that juror as a mitigating circumstance not outweighed by aggravating circumstances. Assuming that such juror does not change his mind after jury deliberations for a reasonable time, the sentence in the case will be life imprisonment under § 413(k)(2).

While no issue has been raised by the defendant Mills concerning the sentencing form or the jury instructions in this regard, it is noteworthy that both the form and the instructions were entirely in accord with the requirement that the critical jury determinations be reached by the unanimous vote of the jurors. The sentencing form, with the jury's answers, was in part as follows (emphasis added):"SECTION II we unanimously find that each mitigating circumstance marked 'no' has not been proven unanimously Death

It is clear that the form required the jurors to agree unanimously that there were no mitigating factors in order for the jury to mark "no" with respect to all statutory or other possible mitigating factors. Despite the suggestion to the contrary in the dissenting opinion, there is no ambiguity in the language of Section II concerning unanimity. The words are: "we unanimously find that each of the following mitigating circumstances which is marked 'yes' has been proven to exist . . . and each mitigating circumstance marked 'no' has not been proven. . . ." In addition to the clause referring to each mitigating circumstance marked "yes," the clause referring to each mitigating circumstance marked "no" is also the object of "we unanimously find that." The sentencing form or "verdict sheet," as completed in this case, demonstrates that not a single juror found the existence of any mitigating circumstance.

The trial judge's instructions in the present case similarly emphasized that jury determinations must be unanimous. After the court clerk handed the jurors copies of the sentencing form, the trial judge instructed the panel as follows: "Let me remind you that in reaching your determination as to any of the issues raised by the case and presented to you on this sentencing form your verdict must be unanimous; that is, all twelve of you must agree." When the trial judge explained mitigating circumstances to the jury, he said: "Again I stress that your finding as to mitigating circumstances must be unanimous, that is you must all agree." At the end of his instructions the judge said: "Again let me remind you of . . . the requirement that your verdict or your decision with regard to any of these items must be unanimous." After closing arguments, just before the jury retired to deliberate, the judge added: "Let me remind you that . . . as you consider each of the circumstances you must indicate yes or no, however your unanimous decision falls. You must indicate either yes or no as to each of those circumstances." (Emphasis added). The jury was fully instructed that it must be unanimous in finding that no mitigating circumstances existed. In light of the verdict sheet and the trial judge's instructions, there is no basis for Mills's speculation that some of the jurors might have believed that some mitigating factors existed.

Finally, we are aware of no Maryland authority which would support the apparent view of the defendant and of Judge McAuliffe that, if jurors are unable to agree unanimously in favor of one party or one side of an issue submitted, but remain in disagreement, the result is somehow a verdict or determination in favor of the other party or the other side of the issue. Judge McAuliffe suggests in his dissenting opinion that when a jury is asked if a particular circumstance exists or has been proven, unanimity is required for the jury to answer the question in the affirmative but not in the negative. The dissent states that "[i]f one juror believes it has been so proven, but eleven do not the jury answers 'no' to the question. . . ." This is not, however, how the jury system and the burden of proof traditionally function.

For example, in many ordinary tort cases, the only disputed issue is whether the plaintiff has met the burden of proving that the defendant was negligent. The ultimate question regarding liability presented to the jury is: "has it been proven that the defendant was negligent?" If all twelve jurors agree that the plaintiff has proven negligence, there will be a verdict for the plaintiff. If all twelve jurors believe that the plaintiff has failed to prove negligence, there will be a verdict for the defendant. But, any other alignment will result in a hung jury. Thus, if one juror believes that the plaintiff has proven that the defendant was negligent, and if eleven jurors believe that the plaintiff has failed to prove negligence, the result is not a verdict for the defendant. In this situation, the jury is unable to answer the question "was the defendant negligent?" The fact that the plaintiff has the burden of proof does not result in some form of majority or plurality rule. Rather, the burden of proof operates with respect to each juror individually.

The same is true in a criminal case. As previously pointed out, the jurors must be unanimous one way or the other on all issues submitted, Ford v. The State, supra, 12 Md. at 549. If one juror believes that the State has met its burden of proving the defendant's guilt, but the other eleven jurors are not convinced beyond a reasonable doubt of guilt, the result is not an acquittal but a hung jury. Otherwise, there would be no need for modified Allen-type instructions to jurors who are unable to reach unanimous agreement. See, e.g., Mayfield v. State, 302 Md. 624, 490 A.2d 687 (1985); Goodmuth v. State, 302 Md. 613, 490 A.2d 682 (1985); Burnette v. State, 280 Md. 88, 371 A.2d 663 (1977); Kelly v. State, 270 Md. 139, 310 A.2d 538 (1973).

The dissenting opinion, at another point, seems to agree that the jury's "determination of any ultimate issue essential to the verdict must be unanimous." The dissent goes on to state, however, that "where alternative findings of historic facts are advanced in support of a single conclusion the better rule is that the jurors need not agree on any single alternative fact provided they all agree on some alternative fact that leads them to a single conclusion on the ultimate issue." We shall assume that this is the "better rule" with regard to alternate findings of historical facts in support of a single conclusion. Nevertheless, the presence or absence of aggravating and mitigating circumstances, and the weighing of aggravating against mitigating circumstances, all fall into the category of "ultimate issues." The General Assembly by statute has made them the critical issues to be submitted to and determined by the capital sentencing jury. Not only are they "ultimate issues essential to the verdict," but, under the statute and rule, the jury's determinations of the presence or absence of aggravating and mitigating circumstances constitute part of the "verdict" itself. As such, unanimity is contemplated under Maryland law. Art. 27, § 413(i); Smith v. State, 299 Md. 158, 163-166, 472 A.2d 988 (1984); Ford v. The State, supra, 12 Md. at 549.

The defendant Mills's contention, concerning the effect of juror disagreement on an issue, is also contrary to the position taken generally throughout the country. The cases regularly point out that unanimity is required for a jury determination on either side of an issue, that the burden and standard of proof operate upon each juror individually and not upon the jury collectively on a majority basis, and that the failure to achieve unanimity on either side of an issue ordinarily results in a hung jury. See generally, e.g., Bolt v. State, 29 Ala. App. 152, 193 So. 560 (1940); Brown v. State, 369 A.2d 682, 684 (Del. 1976); Castle v. The State, 75 Ind. 146 (1881); Stitz v. The State, 104 Ind. 359, 362-363, 4 N.E. 145 (1885); Garden v. Moore, 174 Iowa 376, 156 N.W. 410, 411 (1916); The State v. Stewart, 52 Iowa 284, 286-287, 3 N.W. 99 (1879); Easter v. State, 191 Miss. 651, 4 So.2d 227, 137 A.L.R. 391 (1941); Commonwealth v. Witt, 93 Pa. Super. 446, 448-449 (1928); State v. Harris, 89 R.I. 202, 206-207, 152 A.2d 106 (1959); Casstevens v. Texas P. Ry. Co., 119 Tex. 456, 32 S.W.2d 637, 638 (1930); State v. Wisman, 94 W. Va. 224, 118 S.E. 139, 141 (1923); State v. McCausland, 82 W. Va. 525, 96 S.E. 938, 941 (1918); Anno., Reasonable Doubt of Individual Juror, 137 A.L.R. 394 (1942); 1 Underhill's Criminal Evidence, § 30 (6th ed.); 1 Wharton's Criminal Evidence § 11 (13th ed.).

This principle of unanimity has specifically been applied to jury determinations of the penalty in capital cases. Thus, in Andres v. United States, 333 U.S. 740, 746-749, 68 S.Ct. 880, 92 L.Ed. 1055 (1948), a statute provided that the jury in a murder case could qualify its verdict by adding "without capital punishment," that if the jury so qualified its verdict the punishment would be life imprisonment, but that "[i]f a qualified verdict is not returned, the death penalty is mandatory." 333 U.S. at 746, 68 S.Ct. at 883. The government's argument, somewhat like the defendant's argument in the instant case, was that the jurors were required to be unanimous in order for the jury to add the qualification but that unanimity was not required to reject the qualification. In the government's view, if the jurors remained in disagreement, there would be no qualification, and the sentence would be death. The Ninth Circuit rejected the government's argument, holding "that unanimity of the jury was required both as to guilt and the refusal to qualify the verdict by the words 'without capital punishment.'" Id. at 746-747, 68 S.Ct. at 883. The Supreme Court in Andres agreed with the Ninth Circuit and disagreed with the government, stating as follows ( id. at 748-749, 68 S.Ct. at 804):

"Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues — character or degree of the crime, guilt and punishment — which are left to the jury. . . . [W]e conclude that the construction placed upon the statute by the lower court is correct — that the jury's decision upon both guilt and whether the punishment of death should be imposed must be unanimous. This construction is more consonant with the general humanitarian purpose of the statute and the history of the Anglo-American jury system than that presented by the Government."

Numerous cases are in accord with the position taken in Andres concerning the jury's finding of mitigation or determination of the penalty in a capital case. See, e.g., Smith v. United States, 47 F.2d 518, 519-520 (9th Cir. 1931); People v. Green, 47 Cal.2d 209, 302 P.2d 307, 315-322 (1956); People v. Hall, 199 Cal. 451, 249 P. 859 (1926); State v. Reynolds, 41 N.J. 163, 187, 195 A.2d 449 (1963); People v. Hicks, 287 N.Y. 165, 170-171, 174, 38 N.E.2d 482 (1941). See also, Davis v. State, 51 Okla. Cr. 386, 389-390, 393-397, 1 P.2d 824, 2 P.2d 965 (1931); Anno., Unanimity As To Punishment in Criminal Case Where Jury Can Recommend Lesser Penalty, 1 A.L.R.3d 1461 (1965). Contra: Commonwealth v. Stewart, 359 Mass. 671, 270 N.E.2d 811, 814-815 (1971), vacated, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972).

Consequently, we reject the defendant's argument that whenever the jurors cannot unanimously agree on the same mitigating circumstance or circumstances, they must return a death sentence.

B.

The foregoing discussion disposes of the defendant's contention that the Maryland death penalty statute, as applied to the facts of this case, is unconstitutionally mandatory. Nevertheless, considering the defendant's misconstruction of the statute and the views expressed in the dissenting opinion, we believe that it would be useful for future guidance to comment generally upon the required jury determinations under Art. 27, § 413(d), (f), (g), and (h) in light of the traditional requirement of unanimity which is expressly embodied in § 413(i).

In the usual criminal trial, of course, involving the issue of whether the defendant committed the offense charged, the result of a hung jury is ordinarily a mistrial and, at the state's option, a new trial on the issue. It is clear from Art. 27, § 413(k)(2), however, that the General Assembly did not intend for juror disagreement in a capital sentencing proceeding to result in a mistrial and a new sentencing proceeding. As previously pointed out, § 413(k)(2) provides for dismissal of the jury and a court-imposed life sentence "[if] the jury, within a reasonable time, is not able to agree as to sentence."

One difficulty in applying § 413(k)(2) is that the General Assembly has required more of the jury than the single determination of what the sentence should be. Under § 413(d), (f), (g) and (h), the jury must make decisions concerning the existence or non-existence of aggravating circumstances, the existence or non-existence of mitigating circumstances, and the weighing of aggravating against mitigating circumstances. Moreover, analytically (if not always practically) these decisions are to be made in sequential stages. The matter which the statute does not fully address is what happens where the jurors are unable to achieve entirely the contemplated unanimity and there is juror disagreement at different stages and with respect to different types of issues.

Section 413(d) first requires the jury to determine whether or not any of ten statutorily specified aggravating circumstances exist. Section 413(f) states that if the jury "does not find, beyond a reasonable doubt, that one or more of these aggravating circumstances exist, it shall state that conclusion in writing, and the sentence shall be imprisonment for life." Section 413(g) then provides that if the "jury finds beyond a reasonable doubt, that one or more of these aggravating circumstances exist," the jury must go on to a consideration of mitigating circumstances. Under these provisions, a finding that at least one aggravating circumstance exists is clearly a precondition for the jury to consider mitigation, weighing and the possibility of a death sentence.

Consequently, absent a finding of an aggravating factor, a life sentence is to be imposed at the conclusion of the proceedings under subsection (d) and (f). If the jurors unanimously find the absence of any statutory aggravating circumstance, the jury under subsection (f) completes the verdict sheet accordingly and a life sentence is imposed. If the jurors are in disagreement and, after a reasonable period of time, unable to determine unanimously (as required by § 413(i)) that at least one aggravating circumstance is present, § 413(k)(2) comes into operation, the jury is dismissed, and the court imposes a life sentence.

The situation may also arise in connection with aggravating circumstances where the jurors unanimously agree that one or more aggravating circumstances exist, unanimously agree that several aggravating circumstances do not exist, but, after a reasonable time, remain in disagreement over the existence of one or more other possible aggravating circumstances listed in the statute. It is obvious that § 413(k)(2) does not operate in this situation to terminate the proceeding, because § 413(g) makes it clear that, upon a finding of only one statutory aggravating circumstance, the jury is to proceed and consider possible mitigating circumstances. Thus, in the hypothetical situation posed, the jury should mark "yes" on the form or verdict sheet as to the aggravating circumstance or circumstances which it finds present, should mark "no" as to the aggravating circumstance or circumstances which it finds absent, should not give any answer as to the presence or absence of the aggravating circumstance or circumstances over which it remains in disagreement, and should proceed to consider the presence or absence of mitigating circumstances under § 413(g).

Turning to the consideration of mitigating circumstances, § 413(g) requires the jury to decide "whether . . . any of the following [eight statutorily specified] mitigating circumstances exist." The eighth one is any fact which the jury believes is mitigating. Therefore, as discussed in Part A above, under the statute and implementing form prescribed by former Rule 772A, the jurors are expected to reach a unanimous decision concerning the presence or absence of each mitigating circumstance, as the jurors in the instant case did. The statute then provides in § 413(h) that "[i]f the court or jury finds that one or more of these mitigating circumstances exist, it" shall weigh the mitigating circumstances against the aggravating, determine which outweighs the other, and enter a sentence of life imprisonment or death depending on which outweighs the other.

The express language of the statute in § 413(g) and (h), however, contains substantial gaps. There is no provision, comparable to § 413(f) (regarding the absence of aggravating circumstances), telling the court or jury what to do if it finds no mitigating circumstances. Furthermore, there is no provision specifying what happens if the jurors are divided over some mitigating circumstances and thus cannot reach a complete determination. The language of § 413(g) and (h) deals only with the situation where the court or jury determines that one or more mitigating circumstances exist.

Nevertheless, the General Assembly obviously did not intend that the sentencing proceedings should end in a stalemate and that § 413(k)(2) should be invoked if the jury failed to find any mitigating circumstance. This would result in a life sentence for a defendant where there is no finding of mitigation. In contrast, § 413(h) would require a death sentence for the defendant where there is a finding of mitigating circumstances but they are deemed outweighed by aggravating circumstances. Such construction of the statute would be entirely unreasonable.

The General Assembly, however, did provide that procedural gaps in the statute could be filled by the Court of Appeals. Section 413(1) states:

"The Court of Appeals may adopt rules of procedure to govern the conduct of a sentencing proceeding conducted pursuant to this section, including any forms to be used by the court or jury in making its written findings and determinations of sentence."

Pursuant to subsection (l), this Court in former Rule 772A provided for the situation where the court or jury determined that no mitigating circumstance existed. The sentencing form specifies that, where there is a determination of no mitigating circumstances, the sentence is to be death. This is logical and in accord with the General Assembly's purpose that mitigating and aggravating circumstances be weighed. If there are no mitigating circumstances, there is nothing to weigh against the aggravating factors; one side of the scale is zero. Consequently, a death sentence is appropriate under the statutory scheme.

The sentencing form under former Rule 772A does not, however, deal with the situation where there is no jury agreement on the existence of any particular mitigating circumstance but where there also is no unanimous jury determination that no mitigating circumstance existed. This situation could take a variety of forms. For example, all of the jurors might agree that several very weighty mitigating circumstances are present, but there may be no unanimity concerning the existence of any one particular mitigating circumstance. At the other extreme, eleven jurors might believe that no mitigating circumstance exists, but one juror might insist that one mitigating circumstance exists although it is outweighed by the aggravating circumstances. It would not be consistent with the legislative scheme for the sentencing proceeding to be aborted under § 413(k)(2) in this situation.

In our view, where the jurors after a reasonable period of time cannot agree on any particular mitigating circumstance or circumstances, but also cannot agree that no mitigating circumstances exist, the jurors should proceed to the weighing process under § 413(h). Each juror should weigh the mitigating circumstance which he or she finds, if any, against the aggravating circumstances which the jury under § 413(d) has unanimously found to exist. In this manner, a jury might well arrive at a unanimous determination on the sentence even though there was underlying disagreement on the presence or absence of some mitigating circumstances. This process comports with the general legislative intent that the imposition of the penalty in these cases should depend upon the weighing of mitigating and aggravating circumstances.

In sum, with regard to mitigating circumstances, the jury should mark the sentencing form "yes" for each mitigating circumstance which is unanimously found to exist, mark the form "no" for each mitigating circumstance which is unanimously found not to exist, and leave the form blank with regard to those mitigating circumstance (if any) as to which there is disagreement. Then, unless there is unanimity that no mitigating circumstances exists (such as in the instant case), the jurors should engage in the weighing process.

VII.

Mills next argues that the trial court erred in failing to instruct the jury that it must find that he was a principal in the first degree in order for the death penalty to be a possible sentence. Preliminarily, we note that Mills made no request for such instruction, and made no objection to the trial court's failure to give the instruction sua sponte.

Furthermore, under the facts of this case, the absence of the instruction could not have prejudiced Mills. There could be no doubt concerning the defendant's status as a principal in the first degree. Mills and the victim were isolated in a locked jail cell. Mills emerged with a bloody "shank" in his gloved hand and confessed to killing his cell mate, as previously described. He concedes in his brief "the absence of any factual dispute raised by the evidence" regarding the matter. (Brief, p. 53). Accordingly the omission in the trial court's instructions, even if error, was clearly harmless.

VIII.

Mills makes two additional complaints concerning the sentencing hearing. Neither matter, however, was preserved for appellate review. Rules 4-322, 4-325(e) and 885. First, the defendant claims that the trial court's instruction to the jury on the possible mitigating circumstance of the youthful age of the defendant provided insufficient "guidance" and was "oversimplified." (Brief, pp. 53-54). We need not explore this question, as Mills never requested an instruction on the mitigating circumstance of youthful age, did not object to the instruction given, and defense counsel expressly stated at the conclusion of the trial judge's jury instructions: "The defense has no objection to the instructions given to the jury, your honor."

Second, the defendant asserts that the jury was permitted to hear "a great deal of inadmissible and highly prejudicial evidence." (Brief, p. 56). Not only was there no defense objection to this evidence, but some of the evidence complained of was apparently introduced by the defense. The defendant on appeal obviously cannot challenge the admissibility of this evidence.

IX.

The defendant contends that the death sentence in this case is excessive and disproportionate to the penalty imposed in similar cases. Mills cites six allegedly "similar cases" from the circuit courts involving homicides in correctional institutions. In all six cases, the defendants either were convicted of first degree murder and received life sentences or were convicted of second degree murder and received a term of years. The defendant Mills asserts that his "research has disclosed no cases in which murder perpetrated by an inmate has resulted in a death sentence." (Brief, p. 63).

Preliminarily, we note that because no person has previously been sentenced to death for a particular type of murder, under a recently enacted death penalty statute, does not mean that the first death sentence for that type of murder is necessarily disproportionate or excessive. Otherwise, no one would ever receive the ultimate penalty under a capital punishment statute requiring proportionality review. For a detailed discussion of proportionality review under the present Maryland capital punishment statute, as well as under similar statutes in other states, see Tichnell v. State, 297 Md. 432, 457-473, 468 A.2d 1 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984).

We have examined the six cases relied upon by the defendant Mills, and we conclude that the death sentence in the present case is not disproportionate or excessive in light of the sentences imposed in those cases. In only one of those cases was there a capital sentencing proceeding ( State v. Parker), and there the sentencing authority found as a mitigating factor that the defendant had a significant mental impairment. In the other cited cases there were factors or circumstances distinguishing them from the instant case. For example, in one case there was evidence that the defendant had been physically and verbally abused by the victim and in another cited case the jury could not determine whether the accused were principals in the first degree.

The record before us shows that Mills brutally stabbed his cell mate to death. There was neither evidence of provocation nor of a struggle; there was express evidence of long premeditation. Mills fingerpainted a slogan with the victim's blood, and he acknowledged the deed as soon as it was discovered. The jurors unanimously found no mitigating factors, and our review of the record confirms that the jury's action was warranted. Mills was serving a sentence for second degree murder at the time of this offense.

Considering the crime and the defendant, and comparing the penalty in this case to the death sentences imposed in cases such as Booth v. State, supra, 306 Md. 172, 507 A.2d 1098; Foster v. State, supra, 304 Md. 439, 499 A.2d 1236; and Colvin v. State, 299 Md. 88, 472 A.2d 953, cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984), where the defendants also brutally and without provocation stabbed their victims to death, we do not believe that the sentence here was disproportionate or excessive.

X.

Mills's final argument is that Art. 27, § 413(d)(2), specifying as an aggravating circumstance that "[t]he defendant committed the murder at a time when he was confined in any correctional institution," is unconstitutional. The gist of his contention is as follows (Brief, p. 66):

"It is a fundamental constitutional requirement that 'an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' Zant v. Stephens, 462 U.S. 862 [876-878, 103 S.Ct. 2733, 2742-43,] 77 L.Ed.2d 235, 249-250 (1983). Applying the foregoing standard to § 413(d)(2) it is clear that this aggravating factor fails to meet the constitutional standard. Both of the traditional, presumably rational, concerns in dealing with prisoners — escape and deterring 'lifers' — are specifically provided for by other aggravating factors. Article 27, § 413(d)(3) (8)."

In addition, Mills asserts that § 413(d)(2) is overly broad, covering some "individuals . . . no more culpable than members of society at large. . . ." ( Ibid.).

In our view, the Maryland General Assembly was not constitutionally prohibited from listing as an aggravating circumstance the commission of a murder while an inmate in a correctional institution. This aggravating factor closely resembles one of the aggravating factors proposed by the Model Penal Code, and cited with approval in Gregg v. Georgia, 428 U.S. 153, 193-195 n. 44, 96 S.Ct. 2909, 2935 n. 4, 49 L.Ed.2d 859 (1976), namely that "[t]he murder was committed by a convict under sentence of imprisonment." Moreover, it seems plain to us that this circumstance does genuinely narrow the class of persons eligible for the death penalty.

Finally, the General Assembly is entitled to treat inmate status as an aggravating factor to deter inmates from murdering each other and those who come in contact with them. As pointed out by the Supreme Court of Arizona in State v. Gillies, 135 Ariz. 500, 662 P.2d 1007, 1019 (1983), the "legislative intent of this . . . [aggravating factor] is to protect the guards and other inmates at such institutions where a defendant is confined and to discourage violence by incarcerated persons." We cannot conclude that this legislative purpose is irrational. Furthermore, this purpose is not entirely met by other aggravating factors such as § 413(d)(3) and (8), concerning those sentenced to life imprisonment or death and those who escape or attempt to escape, neither of which would have been applicable to Mills.

We reject, therefore, the defendant's assertion that § 413(d)(2) is unconstitutional.

JUDGMENT AFFIRMED.