dissenting.
I respectfully dissent from the majority opinion on a petition for rehearing in this case. I stand on the dissenting opinions written by Chief Justice Shepard and myself to Justice Krahulik's original opinion.
I would further observe that the opinion on petition for rehearing is in error when it states that a trial judge may not override a jury's recommendation of no death penalty "notwithstanding the judge's own determination to the contrary." It is my belief that when the legislature enacted the statute permitting the judge to override the jury verdict that the death penalty should not be invoked, it should be obvious they intended the trial Judge to engage in independent evaluation of the evidence. If that evaluation led him to believe the jury's recommendation was not *855supported by the evidence, it was within his discretion to invoke the death penalty.
The majority opinion virtually has foreclosed any judicial override of a jury's recommendation to not invoke the death penalty. I believe this to be an improper violation of the legislature's prerogative and an obvious attempt at judicial legislation. As such, I believe it violates the separation of powers provision in our constitution.
I would grant the petition for rehearing and uphold the trial judge's decision.