(concurring in part and in the result):
The majority opinion is close to the right path and is walking basically in the right direction in this case. Generally, I agree with that opinion’s analysis and conclusion that any error in use of RCM 1004(c)(8), Manual for Courts-Martial, United States, 1984, as an aggravating factor in this case was harmless beyond a reasonable doubt. Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992); United States v. Loving, 41 MJ 213, 268 (1994); but cf United States v. Curtis, 32 MJ 252, 270 (CMA 1991)(remand to lower appellate court to consider effect of invalid aggravating factor); United States v. McCullah, 76 F.3d 1087, 1111-12 (10th Cir.1996). Nevertheless, I would also hold that RCM 1004(c)(8) (“actual perpertrator [sic] [1] of the killing”) is a valid aggravating factor which permits imposition of the death penalty for felony murder in this case. Curtis, supra at 265; Calhoun v. State, 297 Md. 563, 468 A,2d 45, 74 (1983).
*448I
Background
Article 118, Uniform Code of Military Justice, 10 USC § 918, proscribes the crime of murder and delineates those murders which are capital. It stated at the time of appellant’s offenses:
§ 918. Art. 118. Murder
Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life; or
(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson; is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or ft), he shall suffer death or imprisonment for life as a court-martial may direct.
(Emphasis added.) Petitioner stands convicted before this Court of two capital violations of this statute: the premeditated murder of Bobby Sharbino (Article 118(1)) and the felony murder of Christopher Fay (Article 118(4)). See 41 MJ at 231-32.
In Loving v. United States, 517 U.S. 748, 755-56, 116 S.Ct. 1737, 1742, 135 L.Ed.2d 36 (1996), the Supreme Court, relying on Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378-79, 73 L.Ed.2d 1140 (1982), held that Article 118, to the extent it delineated capital murder, violated the Eighth Amendment. Justice Kennedy said:
[W]e agree with Loving, on the assumption that Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ] applies to this case, that aggravating factors are necessary to the constitutional validity of the military capital-punishment scheme as now enacted. Article 118 authorizes the death penalty for but two of the four types of murder specified: premeditated and felony murder are punishable by death, 10 U.S.C. §§ 918(1), (4), whereas intentional murder without premeditation and murder resulting from wanton and dangerous conduct are not, §§ 918(2), (3). The statute’s selection of the two types of murder for the death penalty, however, does not narrow the death-eligible class in a way consistent with our cases. Article 118(f) by its terms permits death to be imposed for felony murder even if the accused had no intent to kill and even if he did not do the killing himself. The Eighth Amendment does not permit the death penalty to be imposed in those circumstances. Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378-3379, 73 L.Ed.2d 1140 (1982). As a result, additional aggravating factors establishing a higher culpability are necessary to save Article 118. We turn to the question whether it violated the principle of separation of powers for the President to prescribe the aggravating factors required by the Eighth Amendment.
(Emphasis added.) It further held that the President may constitutionally prescribe the “aggravating factors establishing a higher culpability” necessary to save Article 118, and he did so in RCM 1004(c). 517 U.S. at 756,116 S.Ct. at 1751.
Appellant’s court-martial unanimously found the following Presidential aggravating factors existed in this case:
1 ____ The premeditated murder of Bobby Gene Sharbino was committed while the accused was engaged in the commission or attempted commission of a robbery.
2 ---- Having been found guilty of the felony murder - of Christopher Fay as set forth in specification 3 of Charge I, the accused was the actual perpetrator of the killing.
3 ---- Having been found guilty of premeditated murder of Bobby Gene Sharbi-no, the accused was also found guilty of another violation of Article 118, UCMJ, in the same case.
41 MJ at 301. Our majority opinion in Loving pointed out:
These findings as to aggravating factors were consistent with the court-martial’s *449unanimous findings of guilty as to the premeditated murder of Bobby Gene Sharbino (specification 2 of charge I); the felony murder of Bobby Gene Sharbino (specification 4 of charge I), which was later dismissed as multiplicious; and the felony murder of Christopher Fay (specification 3 of Charge I).
Id. at 267.
II
Appellant’s Argument
Appellant, before this Court, summarizes his argument on this writ-appeal petition as follows:
It is now clear that Private Dwight J. Loving’s death sentence violates the Eighth and Fourteenth Amendments[2] Because Private Loving was convicted of felony murder pursuant to Uniform Code of Military Justice, Article 118(4), 10 USC § 918(4) (1982) [UCMJ], and because the aggravating circumstance was that Private Loving was the “trigger-man” in that felony murder (Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial [RCM] 1004(e)(7)(B)(2)), his sentence of death is incompatible with the Eighth Amendment requirement that: “a capital-sentencing scheme 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.’ ” Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983)).
Writ-Appeal Petition at 1.
I can find no provision in the Manual for Courts-Martial, United States, 1984, in effect at the time of appellant’s trial,3 which is designated RCM 1004(c)(7)(B)(2). However, the so-called “triggerman” aggravating factor which he challenges is found in RCM 1004(c)(8), Manual, supra. In pertinent part, RCM 1004 stated at the time of trial:
(c) Aggravating factors. Death may be adjudged only if the members find, beyond a reasonable doubt, one or more of the following aggravating factors:
* J*C *
(7) That, only in the case of a violation of Article 118(1!):
(A) The accused was serving a sentence of confinement for 30 years or more or for life at the time of the murder;
(B) The murder was committed while the accused was engaged in the commission or attempted commission of any robbery, rape, aggravated arson, sodomy, burglary, kidnapping, mutiny, sedition, or piracy of an aircraft or vessel, or was engaged in flight or attempted flight after the commission or attempted commission of any such offense;
(C) The murder was committed for the purpose of receiving money or a thing of value;
(D) The accused procured another by means of compulsion, coercion, or a promise of an advantage, a service, or a thing of value to commit the murder;
(E) The murder was committed with the intent to avoid or to prevent lawful apprehension or effect an escape from custody or confinement;
(F) The victim was the President of the United States, the President-elect, the Vice President, or, if there was no Vice President, the officer in the order of succession to the office of President of the United States, the Vice-President-elect, or any individual who is acting as President under the Constitution and laws of the United States, any Member of Congress (including a Delegate to, or Resident Commissioner in, the Congress) or Member-of-Congress elect, justice or judge of the *450United States, a chief of state or head of government (or the political equivalent) of a foreign nation, or a foreign official (as such term is defined in section 1116(b)(3)(A) of title 18, United States Code), if the official was on official business at the time of the offense and was in the United States or in a place described in Mil.R.Evid. 315(c)(2), 315(c)(3);
(G) The accused then knew that the victim was any of the following persons in the execution of office: a commissioned, warrant, noncommissioned, or petty officer of the armed services of the United States; a member of any law enforcement or security activity or agency, military or civilian, including correctional custody personnel; or any firefighter;
(H) The murder was committed with intent to obstruct justice;
(I) The murder was preceded by the intentional infliction of substantial physical harm or prolonged, substantial mental or physical pain and suffering to the victim;
(J) The accused has been found guilty in the same case of another violation of Article 118;
(8) That only in the case of a violation of Article 118(h), the accused was the actual perpetrator of the killing [.]
(Emphasis added.)
I will address his arguments concerning the invalidity of his death penalty in light of this Manual provision.
Ill
Disproportionate Punishment under En-mund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)
A preliminary question this Court must decide is whether imposition of the death penalty in appellant’s ease is barred by the Supreme Court’s disproportionate-punishment holding in Enmund v. Florida, supra. See Kills on Top v. State, 279 Mont. 384, 928 P.2d 182, 200-04 (1996); Deputy v. Taylor, 19 F.3d 1485, 1496-98 (3d Cir.1994). There, the Supreme Court held, in the ease of a felony murderer named Enmund, that imposition of the death penalty “in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken” violated the Eighth Amendment. 458 U.S. at 801, 102 S.Ct. at 3378-79; see Cabana v. Bullock, 474 U.S. 376, 386, 106 S.Ct. 689, 696-97, 88 L.Ed.2d 704 (1986) (“Enmund ... imposes a categorical rule: a person who has not in fact killed, attempted to kill, or intended that a killing take place ... may not be sentenced to death.”). Here, appellant was found guilty of the premeditated murder of Bobby Sharbino, see Art. 118(1), in addition to the felony murder of Christopher Fay. Therefore, there was proof and a finding of an intent to kill beyond a reasonable doubt in his case. See also Hutchins v. Garrison, 724 F.2d 1425, 1435 n. 14 (4th Cir.l983)(holding that Enmund does not “require any special mens rea for the imposition of death on a person who actually committed a killing and was convicted of first degree murder”).
In addition, the members made a unanimous finding beyond a reasonable doubt based on overwhelming evidence in the record that appellant actually perpetrated the killing of Christopher Fay during the felony. See Brooks v. State, 104 Md.App. 203, 655 A2d 1311, 1323 (1995); People v. Anderson, 43 Cal.3d 1104, 240 Cal.Rptr. 585, 605-07, 742 P.2d 1306, 1326-27 (19Kl)(Enmund and progeny hold that Eighth Amendment not violated if person sentenced to death “in fact killed ” (emphasis added)). I see no violation of Enmund and its progeny in these circumstances. See Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987)(“Only a small minority of those jurisdictions imposing capital punishment for felony murder have rejected the possibility of a capital sentence absent an intent to kill, and we do not find this minority position constitutionally required.”). Finally, the evidence in this case overwhelmingly established appellant’s intent to kill Christopher Fay.4 See *451Walton v. Arizona, 497 U.S. 639, 648-49, 110 S.Ct. 3047, 3054-55, 111 L.Ed.2d 511 (1990) (“Cabana held that an appellate court could constitutionally make the Enmund v. Florida ... finding that the defendant killed, attempted to kill, or intended to kill in the first instance.”).
IV
Invalid Aggravating Factor under Loving v. United States, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996)
Appellant, nonetheless, attacks his death penalty on the procedural grounds that the President, in establishing the “triggerman” aggravating factor, did “not narrow the death-eligible class in a way consistent with our cases.” Loving, supra at 756, 116 S.Ct. at 1742; see Writ Appeal Petition at 1. He contends that the “actual-perpetrator” aggra-vator in RCM 1004(c)(8) (“That only in the case of a violation of Article 118(4), the accused was the actual perpetrator of the killing”[.]) is legally insufficient to impose death as a penalty. See Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 2634, 129 L.Ed.2d 750 (1994) (“To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment.”). He argues that it is invalid because it still “permits death to be imposed for felony murder even
if the accused had no intent to kill.” Loving, supra at 756, 116 S.Ct. at 1742; see United States v. Cheely, 36 F.3d 1439,1443 n. 9 (9th Cir.1994)5 (“The least culpable mental state the Supreme Court has held death-eligible is reckless indifference to human life during commission of a felony.”).
There are several reasons why I reject appellant’s claim that RCM 1004(c)(8) is an invalid or insufficient aggravating factor under the Supreme Court’s Loving decision.
First of all, I note that RCM 1004(c)(8) permits the death penalty to be imposed on the felony murderer who actually kills a person during the felony (“actual perpetrator of the killing”). In Loving, supra at 756, 116 S.Ct. at 1742, the Supreme Court held Article 118 invalid because it “permits death to be imposed for felony murder even if the accused had no intent to kill and even if he did not do the killing himself.” (Emphasis added.) RCM 1004(c)(8) does not violate both prongs of Loving.
Second, the Supreme Court in Enmund v. Florida, supra, and its progeny clearly held that the death penalty is not disproportionate for a felony murderer who actually kills a person during the felony. “Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of *452those who killed the ... [victims]. This was impermissible under the Eighth Amendment.” 458 U.S. at 798, 102 S.Ct. at 3377. In Tison, 481 U.S. at 149-50, 107 S.Ct. at 1683-84, the Court spoke more clearly in these words:
Enmund explicitly dealt with two distinct subsets of all felony murders in assessing whether Enmund’s sentence was disproportional under the Eighth Amendment. At one pole was Enmund himself: the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state. Only a small minority of States even authorized the death penalty in such circumstances and even within those jurisdictions the death penalty was almost never exacted for such a crime. The Court held that capital punishment was disproportional in these cases. En-mund also dearly dealt with the other polar case: the felony murderer who actually killed, attempted to kill, or intended to kill. The Court clearly held that the equally small minority of jurisdictions that limited the death penalty to these circumstances could continue to exact it in accordance with local law when the circumstances warranted.
(Emphasis added.) In this light, RCM 1004(c)(8) also passes muster because it requires actual killing by the felony murderer. See also Perdue v. Commonwealth, 916 S.W.2d 148, 166 (Ky.1995){Enmund not applicable where felony murderer a principal).
Third, this Court has already indicated that RCM 1004(c)(8) complies with Enmund. In Curtis, 32 MJ at 265-66, we said:
“ Aggravating factor” (8) applies only in the case of a violation of Article 118(4), and so relates only to felony murders. We have held that an accused may be convicted of murder under Article 118(4) even though he did not kill the victim and only aided and abetted commission of the felony on which the felony-murder conviction was based. United States v. Jefferson, 22 MJ 315 (CMA1986). The Supreme Court has concluded that the Eighth Amendment is violated when a defendant is sentenced to death for a felony murder if he did not participate actively in the killing. En-mund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); but cf. Tison v. Arizona, 481 U.S. 137,107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (upholding a death penalty for an accused who did not kill the victim, but whose conduct was related to the killing).
(Emphasis added.)
Finally, several State Supreme Courts have considered the effect of Enmund v. Florida, supra, on aggravating factors similar to RCM 1004(c)(8) and have found no Eighth Amendment violation. See Brooks v. State, 104 Md.App. 203, 655 A.2d 1311 (1995); People v. Anderson, 43 Cal.3d 1104, 240 Cal. Rptr. 585, 742 P.2d 1306 (1987); see generally Calhoun v. State, 297 Md. 563,468 A.2d 45 (1983); but see State v. Ramseur, 106 N.J. 123, 524 A2d 188, 220 n. 21 (1987).
V
Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988)
Appellant additionally argues that RCM 1004(c)(8) is invalid because it does not “genuinely narrow the class of persons eligible for the death penalty [or] ... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” See Loving, 517 U.S. at 755, 116 S.Ct. at 1742, quoting Lowenfield, supra at 244, 108 S.Ct. at 554. He asserts that this aggravating factor is meaningless and is the equivalent of saying any felony murderer who acts alone is death eligible. I disagree.
Article 118 proscribes murder in the military and breaks it down into four groups: premeditated, intentional, wanton disregard, and certain felony murders. It then further narrows these four groups to two groups: premeditation and certain felony murders, which are initially eligible for the death penalty. See Gray v. Lucas, 677 F.2d 1086,1104 (5th Cir.1982) (provides “rational basis” for determining death penalty appropriate for felony murders). RCM 1004(c)(8) still further narrows the class of felony murders to those who actually kill during the felony. See generally Enmund v. Florida, supra. In my view, a genuine narrowing has occurred in making only felony murderers who have actually killed during the felony eligible for *453death. See Johnson v. Dugger, 932 F.2d 1360, 1369-70 (11th Cir.1991); Grandison v. State, 341 Md. 175, 670 A.2d 398, 409 (1995); Calhoun, 468 A.2d at 75.
VI
RCM 1004(c)(8) and Intent to kill
Assuming an intent to kill is required as a necessary aggravating factor to permit imposition of the death penalty on a person who is guilty of felony murder, I would still find no error in this case. Admittedly, Article 118 permits imposition of the death penalty on one who is guilty of felony murder “even if the accused had no intent to kill and even if he did not do the killing himself.” Moreover, the Supreme Court found this statutory provision inadequate by itself to constitutionally permit imposition of the death penalty. However, the Supreme Court in Loving also clearly held that the President could lawfully promulgate “additional aggravating factors establishing a higher culpability ... necessary to save Article 118.” 517 U.S. at 756, 116 S.Ct. at 1742.
RCM 1004(c)(8) is such an additional aggravating factor. It establishes as an aggravating factor: “That only in the case of a violation of Article 118(4), the accused was the actual perpetrator of the killing.” In my view this language requires as a matter of common sense that the members find appellant killed during the felony with an intent to kill. See generally Tuilaepa, 512 U.S. at 976, 114 S.Ct. at 2637 (“Factor (b) is phrased in conventional and understandable terms.”). This conclusion flows from the common meaning of “perpetrate” as “to bring about or carry out (as a crime).” Webster’s Ninth New Collegiate Dictionary 877 (9th ed.1991); see People v. Harrison, 176 Cal.App.2d 330,1 Cal.Rptr. 414 (1959), decision disapproved, People v. Washington, 62 Cal.2d 777, 44 Cal. Rptr. 442, 446-47, 402 P.2d 130, 134-35 (1965).
Professor Perkins confirms this well-established meaning of this term by stating:
Culpable parties are of four different kinds, who may be called respectively: (1) perpetrators, (2) abettors, (3) inciters, and (4) criminal protectors. A “perpetrator,” as here used, is one who, with mens rea,11 has caused a socially-harmful occurrence either with his own hands, or by means of some tool or instrument or other non-human agency, or by means of an innocent agent. Nothing novel is involved in this suggestion, because the word has been employed with this meaning at least since the time of Blackstone.12
11. That is, one who has acted with malice aforethought or with criminal negligence in a homicide case, with animus furandi in a larceny case, with intent to commit a felony in a burglary case or, in other words, with whatever kind of mind at fault is required in order that the particular socially-harmful occurrence may be classified as a crime.
12. 4 Bl. Comm. [Blackstone’s Commentaries] *34. See also Smith v. State, 37 Ark. 274, 276 (1881); In re Vann, 136 Fla. 113,118,186 So. 424, 426 (1939). One court has spoken of an offender who commits his offense by the aid of an innocent agent as “not the actual perpetrator.” People v. Whitmer, 369 Ill. 317, 320, 16 N.E.2d 757, 759 (1938). But if emphasis is placed on the crime rather than the mere physical occurrence it seems proper to say that one who has contrived to bring about the prohibited result by the employment of innocent hands, has perpetrated his offense in this manner.
R. Perkins and R. Boyce, Criminal Law 723-24 (3d ed.l982)(emphasis added); see also B. Gamer, A Dictionary of Modem Legal Usage 653 (2d ed. 1995)(“Perpetrator = one who, with mens rea (q.v.) has caused a socially harmful occurrence either personally or through some ... agent.”) Accordingly, even accepting appellant’s view of Enmund v. Florida, supra, and its progeny as requiring proof of an intent to kill, I find such a requirement in RCM 1004(c)(8).
VII
Harmless error
In any event, I agree with the majority opinion that any error in considering RCM 1004(c)(8) as a constitutionally valid aggravating factor in this case was harmless. See generally Stringer, 503 U.S. at 232,112 S.Ct. at 1137. RCM 1004(c) provides: “Death may *454be adjudged only if the members find, beyond a reasonable doubt, one or more ... aggravating factors.” (Emphasis added.) As noted above, there were two other valid aggravating factors in this case which made appellant death eligible. Moreover, I agree that appellant’s triggerman status, at the very least, could be considered in the subsequent weighing step as an aggravating circumstance under RCM 1004(b)(4)(C) (“Death may not be adjudged unless — ... (C). All members concur that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances admissible under RCM 1001(b)(4), including the factors under subsection (c) of this rule.”) The fact of appellant’s status as an actual triggerman was properly before the members as aggravation under RCM 1001(b)(4). See Williams v. Clarke, 40 F.3d 1529, 1542 (8th Cir.l994)(error not “as egregious” as where “sentencer considers an aggravating circumstance that would not otherwise have been established or not considered at all”). Finally, I agree that the military judge’s instructions and counsel’s arguments remove any reasonable possibility that appellant was prejudiced by the number of capital offenses or the number of valid aggravating factors in this case. See Davis v. Executive Director of Department of Corrections, 100 F.3d 750, 774 (10th Cir.1996); United States v. Tipton, 90 F.3d 861, 900 (4th Cir.1996); United States v. Chandler, 996 F.2d 1073, 1093 (11th Cir.l993)(“instructions made clear that the weighing process was not a mechanical one ... based on the number of aggravating ... factors”).
This ease has made a long march through the American judicial system. Here, at the end, I am satisfied that Dwight Loving has had a fair trial and appeal. I find no defect in the Federal law or its process that has been applied to this result of capital punishment. Accordingly, I vote to affirm the decision below denying the petition for extraordinary relief.
1. The version of this Rule applicable at trial misspells "perpertrator.” I will use the correct spelling (perpetrator) in quoting the rule.
2. The Fourteenth Amendment only applies to the States.
. Appellant was tried between January and April 1989 at Fort Hood, Texas. As we noted in United States v. Loving, 41 MJ 213, 232 (1994), a sentence hearing was held in accordance with RCM 1004, Manual for Courts-Martial, United States, 1984 (Change 2) (Change 3 to the Manual was dated June 1, 1987, but did not amend the Change 2 version of RCM 1004.).
. Appellant confessed to killing Private Christopher L. Fay, a taxi-driver who appellant directed to a secluded area of Fort Hood and robbed. *451The Court of Military Review summarized his confession as follows:
"Dissatisfied with the meager amount of money he had obtained from the 7-Eleven robberies, appellant made the intentional and considered decision to rob taxicab drivers. On the night of 12 December 1988, appellant called for a taxicab to take him from a grocery store in Killeen to his barracks at Fort Hood. The driver of the taxicab was an Army private [Fay] who was moonlighting for extra money. After entering the taxicab and after arriving at Fort Hood, appellant directed the driver to park in a dark secluded area behind the barracks. He produced a pistol, held the pistol to the driver’s head, ordered the driver to shut off the car’s motor and lights, and demanded all the driver's money. After replying "bullshit" to the driver’s protests that he had surrendered all of the money, appellant shot the driver in the back of the head. While looking at the hole in the back of the victim's head and the blood "gushing out,” appellant cocked the pistol and shot him in the back of the head again. The taxi driver died as a result of these gunshot wounds.”
34 MI 956, 959 (1992). Accident or accidental killing is simply not a reasonable possibility in these circumstances. Accordingly, failure to expressly instruct on the requirement for an intent to kill as part of being an actual perpetrator of a killing was clearly harmless beyond a reasonable doubt. See People v. Johnson, 6 Cal.4th 1, 23 Cal.Rptr.2d 593, 618, 859 P.2d 673, 698 (1993); see also People v. Osband, 13 Cal.4th 622, 55 Cal.Rptr.2d 26, 89-90, 919 P.2d 640, 720-21 (1996) (Kennard, J„ concurring and dissenting).
. Appellant has cited note 9 of Cheely as support for his argument that RCM 1004(c)(8) (actual perpetrator of killing) is an invalid aggravator under Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). The Court in that case, however, did not decide that question because Cheely was charged with "intentional murder,” not felony murder. 36 F.3d at 1443 and n. 10.