latter, specifically, with vagueness that makes the jury’s functioning unpredictable. In this context, a vague sentencing guideline, by rendering the determination more inscrutable to judicial review, increases the chance for concealed prejudice in sentencing. No contention has been made in this case, or indeed in others, that the constitutional mandate of definiteness has as its purpose advising murderers of the difference between conduct that will bring on the death penalty and conduct that will res 104 S.Ct. 3154, 3164, 82 LEd.2d 340, 354 (1984) (sixth amendment right to jury trial does not extend to capital sentencing). Several state supreme courts have expressly equated aggravating factors with elements of an offense. See Arnold v. State, 236 Ga. 534, 224 S.E.2d 386, 391 (1976) (<HOLDING>); State v. Silhan, 302 N.C. 223, 275 S.E.2d
holding that a defendant has right to be represented by counsel in all criminal trials for serious offenses holding that consideration of hypothetical aggravating factors and criminal history is inappropriate when determining whether prior offense constitutes felony holding that indictment for murder in the first degree charges murder by whatever means it may have been committed regardless of the theory of murder presented to the grand jury holding unconstitutionally vague aggravating condition that murder is committed by a person who has a substantial history of serious assaultive criminal convictions holding a court may consider a defendants criminal history even if that history is included in the defendants criminal history category