with whom ALARCON, BEEZER, and DAVID R. THOMPSON, Circuit Judges, join, concurring and dissenting:
The majority opinion identifies and decides six issues in this appeal: whether Adamson’s death sentence was imposed, (1) as a result of judicial vindictiveness or prosecutorial vindictiveness, in violation of the Fourteenth Amendment’s Due Process Clause; (2) in an arbitrary and capricious manner, in violation of the Eighth Amendment; (3) in violation of right to trial by jury because the aggravating circumstances factor in the Arizona death penalty statute functions as an element of a crime; (4) pursuant to the Arizona death sentence statutory aggravating circumstances factor, heinous, cruel or depraved, which fails to adequately channel the judge’s discretion, in violation of the Eighth Amendment; (5) pursuant to the Arizona death sentence statute which precludes meaningful consideration of all mitigating evidence, and imposes a presumption of death, in violation of the Eighth Amendment; and (6) after the admission at trial of certain hearsay evidence, in violation of the Constitution’s Confrontation Clause.
I agree with the majority’s holding as it relates to judicial vindictiveness, and issue 6, that any hearsay statements erroneously admitted were harmless. Thus, I concur in the majority’s decision to affirm the district court on those two grounds. However, I have difficulty with the majority’s analysis, and disagree with its holding as it relates to the remaining issues, issue 1 as to prose-cutorial vindictiveness and issues 2-5. Thus, I respectfully dissent from the majority’s decision to reverse (and remand to) the district court on these five grounds. My five points of disagreement will be discussed in turn.
I.
PROSECUTORIAL VINDICTIVENESS
Adamson’s second conviction and sentence do not violate the Due Process Clause as a result of prosecutorial vindictiveness. A prosecutor cannot bring increased charges in retaliation to a defendant’s exercise of a constitutional right. Blackledge v. Perry, 417 U.S. 21, 27-28, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). The appearance of vindictiveness is enough to constitute a violation of due process of law. Id. at 28, 94 S.Ct. at 2102. United States v. *1046Goodwin, 457 U.S. 368, 378, 102 S.Ct. 2485, 2491, 73 L.Ed.2d 74 (1982). Adamson had entered into a plea agreement after he had been charged for first degree murder and while the jury for his trial was being selected. Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 2682, 97 L.Ed.2d 1 (1987). The plea bargain puts the case in a much different posture than the majority describes:
In [the prosecutorial vindictiveness cases] the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation “very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.”
Bordenkircher v. Hayes, 434 U.S. 357, 362, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978), quoting Parker v. North Carolina, 397 U.S. 790, 809, 90 S.Ct. 1458, 1480, 25 L.Ed.2d 785 (1970). In the context of a plea bargain, a prosecutor may use the threat of increased charges to secure a plea agreement, Bordenkircher, 434 U.S. at 364, 98 S.Ct. at 668, and the presence of the plea agreement here dispels any possibility of prosecutorial vindictiveness. The reinstatement provision in the plea agreement was simply the means of enforcing the promise that Adamson had made to testify “fully and completely”.
The Supreme Court found that Adamson had voluntarily and intelligently entered into the plea agreement where “both parties bargained for and received substantial benefits.” Ricketts v. Adamson, 107 S.Ct. at 2685 and n. 5. Once a defendant voluntarily and intelligently enters into a plea agreement, he or she can only escape its consequences if the plea was induced by an offer from the prosecutor that is not forthcoming or if the defendant was not fully apprised of its consequences. Mabry v. Brown, 467 U.S. 504, 508-510, 104 S.Ct. 2543, 2546-48, 81 L.Ed.2d 437 (1984). Here, the prosecution came through with its exchange: they agreed to a second degree murder charge with a fixed sentence of 48-49 years, with a total incarceration time of 20 years and 2 months, and that sentence was imposed. Ricketts v. Adamson, 107 S.Ct. at 2682-83. Adamson 'promised to “testify fully and completely in any Court, State or Federal, when requested by proper authorities, against any and all parties involved in the murder of Don Bolles.... ” Id. The consequences to Adamson should he not do as promised were clearly spelled out in the agreement:
The terms of the agreement could not be clearer: in the event of respondent’s breach occasioned by a refusal to testify, the parties would be returned to the status quo ante....
Id. at 2685. The Supreme Court recognized that to disallow the consequence of the original first degree murder charge reinstatement would “render the agreement meaningless.” Id. at 2686. They further recognized that Adamson knew the consequence of a breach of the promise and with that awareness breached the contract.
[Adamson] could submit to the State’s request that he testify at the retrial, and in so doing risk that he would be providing testimony that pursuant to the agreement he had no obligation to provide, or he could stand on his interpretation of the agreement, knowing that if he were wrong, his breach of the agreement would restore the parties to their original position and he could be prosecuted for first degree murder.
Ricketts v. Adamson, 107 S.Ct. at 2686 (emphasis added). See also Id. at 2684-85, n. 3. (Supreme Court declined to “second guess” the Arizona Supreme Court finding that Adamson had breached his plea agreement). The agreement specified in two separate paragraphs the consequences that would flow from Adamson’s breach of his promise. Id. at 2685. In paragraph 5, the agreement provides that if Adamson refused to testify, “this entire agreement is null and void and the original charge will be automatically reinstated.” Adamson v. Ricketts, 789 F.2d 722, 731 (9th Cir.1986) (Appendix A) (emphasis added). Paragraph 15 provides that “[i]n the event this agreement becomes null and void, then the *1047parties shall be returned to the positions they were in before this agreement.” Id. at 732. Adamson “unquestionably understood the meaning of these provisions.” Ricketts v. Adamson, 107 S.Ct. at 2685. Therefore, Adamson entered into a valid plea agreement, then breached that agreement rendering it null and void, and in accordance with the terms of the agreement the first degree murder charge was automatically reinstated, subjecting him to the same charge that was against him (and that he was in the midst of trial for) when he entered the agreement.
Adamson’s offer to testify following the Arizona Supreme court’s decision which upheld the plea agreement, and held that there was a breach and that the reinstatement provision was valid, could not “cure” the breach.
[I]t is of no moment that following the Arizona Supreme Court’s decision [Adamson] offered to comply with the terms of the agreement. At this point, [Adamson’s] second-degree murder conviction had already been ordered vacated and the original charge reinstated. The parties did not agree that [Adamson] would be relieved from the consequences of his refusal to testify if he were able to advance a colorable argument that a testimonial obligation was not owing. The parties could have struck a different bargain. ...
Id. at 2687 (emphasis added). Thus, Adam-son’s offer to testify at that point was an offer for a new bargain. The dissent in Ricketts v. Adamson asked why the prosecution did not take Adamson up on his new offer. Id. at 2692, n. 13. Adamson had broken his promise twice before. This court’s majority opinion notes that the convictions of Robison and Dunlap support the conclusion that Adamson testified fully and credibly for the prosecution. Maj. op. at 1020. However, the reason Robison’s and Dunlap’s convictions were reversed by the Arizona Supreme Court was because Adam-son refused to answer a key question on cross-examination. State v. Dunlap, 125 Ariz. 104, 608 P.2d 41, 42 (1980); State v. Robison, 125 Ariz. 107, 608 P.2d 44, 46 (1980). The Arizona Supreme Court found that because Adamson’s testimony was central to the convictions against Robison and Dunlap, that Adamson’s refusal to testify violated Robison’s and Dunlap’s right to confrontation and reversed their convictions. Dunlap, 125 Ariz. at 105-06, 608 P.2d at 42-43, Robison, 125 Ariz. at 109-10, 608 P.2d at 46-47. The State, at that point, did not attempt to penalize Adamson for his broken promise, however they did seek Adamson’s cooperation and testimony for Dunlap’s and Robison’s retrial. Only after Adamson refused to testify and demanded a new agreement did the state declare Adamson to be in breach of the plea agreement. Ricketts v. Adamson, 107 S.Ct. at 2683. Adamson, through his attorneys, challenged the agreement and his obligation to testify, again breaking his promise to testify “fully and completely.” Id. at 2683. After challenging the agreement all the way to the Arizona Supreme Court, Adamson then agreed to testify, however, at this point the prosecution had no duty to enter into a plea agreement, Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). Further, the prosecution had no incentive to enter into a second agreement with someone who had twice broken his promise to testify (the only benefit the state was to receive from Adamson in exchange for dropping its first degree charge and murder trial and accepting a second degree murder plea with a specific sentence); and who had caused the cases against the other conspirators, Robi-son and Dunlap, (the object of the plea agreement) to be reversed. Adamson had no reservations in challenging the first agreement as it unfolded and as the majority recognizes (maj. op. at 1020, n. 12), the state could not obtain a guarantee that Adamson would testify fully or truthfully, and, in fact, he did not. The state did have recourse by the reinstatement of the first degree murder charge under the agreement. When Adamson made the offer to promise to testify the second time he had not been tried or convicted of first degree murder, and the state had no guaranty for his full or truthful testimony.
*1048Under Adamson’s view of the agreement there could be no automatic reinstatement, thereby rendering any enforcement provisions of a new plea agreement meaningless. If Adamson were allowed to escape the enforcement provisions of the original plea agreement it would “render the agreement meaningless.” Ricketts v. Adamson, 107 S.Ct. at 2686. As the law favors plea agreements, Bordenkircher, 434 U.S. at 363-64, 98 S.Ct. at 668, Adamson should be held to his bargain and suffer the consequences of his voluntary breach.
II.
ARBITRARY AND CAPRICIOUS
A sentence of death is “arbitrary and capricious” under the Eighth Amendment if it is not suitably directed and limited. Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976). The concerns expressed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) that the penalty of death not be imposed in an arbitrary or capricious manner are met by a carefully drafted statute which ensures that the sentencing authority is given adequate information and guidance. Gregg, 428 U.S. at 195, 96 S.Ct. at 2935. The safeguards espoused in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (hereinafter the “1976 Cases”), are standards for statutes that guide the sentencing authority including weighing aggravating and mitigating circumstances and weighing them against each other, and providing for de novo appellate review. Gregg, 428 U.S. at 193-195, 96 S.Ct. at 2934-35. These cases determined the constitutionality of the death penalty after it was struck down in 1972 in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726. The guidelines should focus on the individual circumstances of each case and on the individual defendant. Proffitt, 428 U.S. at 252, 96 S.Ct. at 2966; Gregg, 428 U.S. at 199, 96 S.Ct. at 2937.
By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. But authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.
Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976). Since Furman, the Supreme court has insisted that the channeling and limiting of the sentencer’s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action. Maynard v. Cartwright, — U.S. -, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988).
This arbitrary and capricious argument is usually applied when analyzing statutory sentencing schemes, and the 1976 Cases analyzed the statutory schemes of five states to see if their legislative changes after Furman were constitutional. The cases the majority cites for the proposition that a sentence of death may not be imposed by a judge in an arbitrary or capricious manner analyze the requirements of a statute, not the actions of an individual judge. E.g., California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983) (discusses constitutionality of the “Briggs Instruction” mandated under California’s sentencing scheme); Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (upholding the constitutionality of Georgia’s sentencing scheme); Booth v. *1049Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, reh’g denied, — U.S. -, 108 S.Ct. 31, 97 L.Ed.2d 820 (1987) (precluded the use of a victim impact statement, mandated pursuant to a state statute, as a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary or capricious manner); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (held that presentence reports used in sentencing process must be shown to the defendant so that he may present evidence rebutting the report).
The Supreme Court, in analyzing the actions of a judge, within a constitutional statutory sentencing scheme, have used the “judicial vindictiveness” framework. U.S. v. Goodwin, 457 U.S. 368, 372-74, 102 S.Ct. 2485, 2488-89, 73 L.Ed.2d 74 (1982), citing Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978). That is, a court cannot sentence a defendant more severely simply because he exercised his right to trial or any other constitutional rights. North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). If the majority is characterizing “arbitrary and capricious” as an abuse of discretion, they would have to show much more than disparate sentencing. They would have to show the trial judge failed to conduct an adequate investigation into facts necessary for an intelligent exercise of the trial court’s sentencing power. State v. Grier, 146 Ariz. 511, 707 P.2d 309 (1985). However, the majority carefully notes the time the trial judge spent considering the facts about the defendant and the case, and investigating other relevant facts. Maj. op. at 1021. Assuming arguendo that the arbitrary and capricious analysis as announced by the Supreme Court can be applied to an individual judge’s actions, it is necessary to ask if the judge was guided by a carefully drafted statute, if he had adequate information and guidance, and if he focused on the individual circumstances of the case and on the individual defendant. Gregg, 428 U.S. at 193-95, 96 S.Ct. at 2934-35; Proffitt, 428 U.S. at 252, 96 S.Ct. at 2966. The majority states that the judge was “arbitrary” because at one point in the case, he approved a 48-49 year sentence for a second degree murder plea and then three years later, he sentenced Adamson to death after he was convicted of first degree murder. Out of context the majority calls this action arbitrary — but any choice appears arbitrary until inquiry is made as to the context and the reasons for the choice.
To determine whether the judge was properly “guided”, it is necessary to look at the context in which he made the sentences and the differences between the two situations to see if they are reasonable. If the judge was reasonable and logical in his sentencing then he would not be arbitrary or capricious. Booth v. Maryland, 107 S.Ct. at 2536 (“[A]ny decision to impose the death penalty must be, and appear to be based on reason rather than caprice or emotion.”). The majority neglects to consider the fact that Adamson’s first sentence must be examined in light of the existence of the plea bargain.
There are four differences between the second degree murder sentence pursuant to the plea bargain and the sentence imposed after the jury trial convicting Adam-son of first degree murder: 1) the presence or absence of the plea bargain and the degree of cooperation of Adamson; 2) the fact that the judge was sentencing two different crimes: second degree murder and first degree murder; 3) the fact that a full trial on the merits to a jury intervened between the two sentences; and 4) the fact that Adamson was on notice that if he breached the plea agreement, he could receive the death penalty.
1. The Plea Bargain.
The trial judge when accepting a plea bargain is accepting a compromise, otherwise it would not be a “bargain.” Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984). “Each side may obtain advantages when a guilty plea is exchanged for sentencing concessions.” Id. (emphasis added.) In deciding whether to accept the plea bargain between the prosecution and Adamson, the judge had to decide whether to make sentencing concessions. Once that decision was made, *1050it was subject only to an abuse of discretion. State v. Grier, 146 Ariz. 511, 707 P.2d 309, 313 (1985) (if a sentence is within statutory limits it will not be disturbed unless there is an abuse of discretion). Here, the Supreme Court found that both parties bargained for and received substantial benefits. Ricketts v. Adamson, 107 S.Ct. at 2685. The trial judge exercised his discretion and sentenced Adamson to the term agreed upon by Adamson and the state in the plea agreement. Adamson thus secured “a lesser penalty than might be imposed if there were a guilty verdict after trial to judge or jury.” See Mabry, 467 U.S. at 508, n. 8, 104 S.Ct. at 2547, n. 8.
When Adamson breached the plea agreement the first degree murder charges were reinstated according to the terms of the plea bargain. Ricketts v. Adamson, 107 S.Ct. at 2683, n. 3 (federal court on habeas cannot disturb state courts finding of breach of the plea agreement). Thus, when the judge sentenced Adamson after the jury trial, it was not pursuant to any plea agreement — no sentencing concessions had to be made. Additionally, Adamson had refused to testify at a deposition held before the retrial of Dunlap and Robison, and in spite of what Adamson said he would do, what he had done was exhibit a lack of cooperation by breaching the plea agreement and refusing to testify. Ricketts v. Adamson, 107 S.Ct. at 2683. If the prosecution is precluded from enforcement of a plea agreement and can never reinstate charges that carry the death penalty, the usefulness of plea bargains would be severely undermined. Whatever may be the “situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.” Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1628, 52 L.Ed.2d 136 (1977). These advantages can only be secured if dispositions by guilty plea are accorded a great measure of finality. Id. Without enforcement provisions in plea bargaining agreements those accused of capital crimes would never get a plea bargain for a reduced crime or sentence but would be “forced” to go to trial because the prosecutor would have no bargaining chip — no way to enforce the agreement and thus, no incentive to enter into one.
A prosecutor may constitutionally threaten increased charges to induce defendants into entering into plea agreements. Bordenkircher v. Hayes, 434 U.S. 357, 360-65, 98 S.Ct. 663, 666-69, 54 L.Ed.2d 604 (1978). “By hypothesis, the pleas may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and this by fear of the possibility of a greater penalty upon conviction after a trial.” Id. at 363, 98 S.Ct. at 668. It follows that if it does not violate Due Process to threaten charges which defendant was “plainly subject to prosecution”, then it cannot violate due process to carry out that threat. Id. at 365, 98 S.Ct. at 669. Adamson was in the midst of a trial for first degree murder when he and the prosecution struck their deal. Ricketts v. Adamson, 107 S.Ct. at 2682. To reinsti-tute the very charges he had already been indicted on and was being tried for, and to suffer punishment upon conviction by a jury, cannot violate the Due Process Clause nor as asserted by the majority be an “arbitrary or capricious” sentence.
2. The judge sentenced two different crimes.
Adamson agreed to plead guilty to second degree murder in the plea bargain agreement. Adamson v. Ricketts, 789 F.2d at 731. The court accepted the guilty plea but postponed acceptance of the structured sentence (48-49 years with incarceration time of 20 years 2 months) pending review and receipt of the presentence report. Id. at 724.1 Four days later, the *1051judge accepted the entire plea agreement including the sentence. Id.
The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence.... Just as the court must be free to impose a more severe sentence when warranted, the plea and sentencing process must leave the court leeway to consider a lesser penalty when the facts and justice so require.
Dominguez v. Meehan, 140 Ariz. 329, 332, 681 P.2d 912, 915 (1983) (emphasis added).
The judge’s determination of appropriateness was based on the plea bargain’s stated second degree murder charge which Adam-son had been “convicted” of after the court had accepted his guilty plea. He was not charged or “convicted” of first degree murder at this time and the judge had to consider the punishment suitable for the second degree murder crime for which Adam-son had been convicted. State v. Jenson, 123 Ariz. 72, 597 P.2d 554 (1979) (a trial judge has no discretion to impose any sentence other than that specified by statute). The structured sentence which Adamson received was almost five times that specified as the minimum in the sentencing statute in effect at the time Adamson was sentenced for second degree murder. A.R.S. § 13-453. This is in addition to the fact that Adamson had to serve 20 years and 2 months before he could apply or be eligible for parole, and that he gave up his right to appeal and other constitutional rights. Adamson v. Ricketts, 789 F.2d at 731-32 (Appendix A). Furthermore, a sentence of death was not then, nor is it now, an available sentencing option for a second degree murder conviction. A.R.S. § 13-453; § 13-1644 (1977) (in 1977 when Adamson was first sentenced, 10 years to life was the sentencing range for second degree murder).
In November, 1980, following a full trial by jury which unanimously convicted Adamson of first degree murder the judge imposed the death penalty. Ricketts v. Adamson, 107 S.Ct. at 2684. Thus when the original charges were reinstated against Adamson and he was convicted, the judge had a different charge and conviction before him, and in weighing the aggravating and mitigating circumstances under the first degree murder sentencing scheme, the judge had to meet different legislative requirements. A.R.S. § 13-703 (see maj. op. at 1015, n. 2 for full text of statute). Under those requirements, the judge had to find an aggravating circumstance beyond a reasonable doubt and weigh that against any mitigating circumstances. A.R.S. § 13-703(E); State v. Richmond, 136 Ariz. 312, 322, 666 P.2d 57, 67, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983) (state must prove aggravating circumstances beyond a reasonable doubt). If aggravating outweighed mitigating the judge had to impose the death sentence. A.R.S. § 13-703(E).
Under the Arizona legislative mandate for sentencing, the trial judge must follow certain guidelines depending on the crime, the circumstances and the individual. Sentencing for second degree murder under a plea bargain agreement is not the same as sentencing after a full trial on the merits for first degree murder. Compare A.R.S. § 13-701 with A.R.S. § 13-703.
3. The effect of a full trial on the merits.
In a recent case, we discussed the effects of a full trial on the merits on sentencing considerations. McKenzie v. Risley, 842 F.2d 1525 (9th Cir.1988). In that case, defendant and the prosecutors made a tentative plea agreement subject to certain contingencies. Id. at 1536. The trial judge reluctantly approved the proposal and set a date to receive the plea. Id. Later, the prosecution advised defense counsel that *1052there would be no plea bargain and so no guilty plea was entered. Id. Later, after a full trial, the judge sentenced McKenzie to death. Noting that a sentence of death must be based on reason rather than caprice or emotion (citing Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977)), the Court stated that the fact that the sentence imposed after a trial on the merits is more severe than one the judge was willing to accept as part of a plea bargain does not “impeach the legitimacy of the sentence” and that the judge could have approved a settlement calling for a sentence lighter than he himself would have chosen to impose. Id. at 1537.
[I]n the interval between the plea negotiations and the sentencing proceedings, the trial judge had numerous opportunities to gain additional information upon which to base his sentencing decision. He presided over McKenzie’s sixteen-day-long trial; heard the testimony of fifty prosecution witnesses, including witnesses who testified in great detail about the brutality of the crime, McKenzie’s apparent premeditation and other aggravating factors; read the presen-tence investigation report; and, most important, received a unanimous jury verdict finding the defendant guilty beyond a reasonable doubt of two of the most heinous crimes punishable under Montana law.
Id. (emphasis added).
The situation in Adamson’s case is similar. Even though Adamson’s breach of a plea agreement renders it void, it is as if a plea agreement had never been reached and Adamson was back where he was before the prosecution made their offer. “The terms of the agreement could not be clearer: in the event of respondent’s breach occasioned by a refusal to testify, the parties would be returned to the status quo ante.” Ricketts v. Adamson, 107 S.Ct. at 2685. The trial judge presided over the intervening trial between the taking and consideration of the plea agreement and heard the testimony of the witnesses, the jury rendered a unanimous verdict, the judge read the presentence report, and considered the aggravating and mitigating circumstances of the crime. This is enough to overcome the assertion that the trial judge was arbitrary or capricious. See McKenzie, 842 F.2d at 1537, n. 24.
4. Adamson had notice he could receive the death penalty.
Adamson knew that if he breached the plea agreement he was at risk for the death penalty. Ricketts v. Adamson, 107 S.Ct. at 2686. Adamson had a choice. He could testify as requested by the State or
[H]e could stand on his interpretation of the agreement, knowing that if he were wrong, his breach of the agreement would restore the parties to their original positions and he could be prosecuted for first degree murder.
Ricketts v. Adamson, 107 S.Ct. at 2686. The agreement specifies in two separate paragraphs the consequences that would occur if Adamson breached. Paragraph 5 provides that if Adamson refused to testify, “this entire agreement is null and void and the original charge will be automatically reinstated.” Adamson v. Ricketts, 789 F.2d at 731 (Appendix A). Further Paragraph 15 of the agreement provides: “in the event this agreement becomes null and void, then the parties shall be returned to the positions they were in before this agreement.” Id. at 732 (Appendix A). The Supreme Court recognized that to disallow the effect of this “reinstatement” clause would render the agreement meaningless. Ricketts v. Adamson, 107 S.Ct. at 2686. They also found that the trial court carefully went over each and every provision of the agreement with Adamson to ensure the constitutional requirements of an intelligent and voluntary plea and thus Adam-son’s awareness and notice of each provision of the agreement. Ricketts v. Adamson, at 2685.
Also, Adamson’s attorneys in their letter of April 3, advised the prosecutor that Adamson “is fully aware of the fact that your office may feel that he has not completed his obligations under the plea agreement ... and, further, that your office may attempt to withdraw the plea agreement *1053from him, [and] that he may be prosecuted for the killing of Donald Bolles on a first degree murder charge.” Ricketts v. Adamson at 2686-87. Adamson understood what the consequences would be if he breached the agreement. Therefore, the imposition of the death sentence was neither an unfair surprise nor arbitrary, but just the rational, logical, sequential and predictable result of his refusal to testify of which Adamson was acutely aware.
III.
JUDICIAL V. JURY SENTENCING IN CAPITAL CASES
The majority holds that the aggravating factor in the Arizona death sentence statute is an element of the crime of “capital murder” thereby depriving Adamson of his right to trial by jury. Maj. op. at 1029. The majority is reaching for a conclusion never made by the U.S. Supreme Court. The history of Arizona’s death penalty law and its comparison to other states’ laws pursued by the majority is irrelevant. The aggravating and mitigating factors considered by an Arizona judge are sentencing factors not elements of the crime to be tried to a jury. Additionally, the Arizona statute goes beyond the constitutional mandate of McMillan and requires that the aggravating factors be proven beyond a reasonable doubt.
1. History of the Arizona Death Penalty.
The history of Arizona’s death penalty, and the changes it has gone through are irrelevant so long as the statute applied here meets constitutional standards. Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984). Also, the fact that a majority of jurisdictions have adopted a different practice than Arizona does not offend “common standards of decency.” Id. “The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws.” Id.
[T]he fact that the States have formulated different statutory schemes to punish armed felons is merely a reflection of our federal system, which demands “tolerance for a spectrum of state procedures dealing with a common problem of law enforcement.”
McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67 (1986) citing Spencer v. Texas, 385 U.S. 554, 566, 87 S.Ct. 648, 655, 17 L.Ed.2d 606 (1967). Although interesting, the majority’s recitation of the history of Arizona’s death penalty law and its comparison to other states has no bearing on this issue of punishment. The Supreme Court has made it clear that they are unwilling to say that there “is any right way for a state to set up its capital sentencing scheme.” Spaziano, 468 U.S. at 464, 104 S.Ct. at 3164 [citations omitted].
2. Arizona’s aggravating factors are not elements of a crime.
While the majority and some commentators have found that death eligibility criteria is a separate crime, the Supreme Court has not. The 1976 Cases did not require that states create a new category of crime to ensure fairness in the application of the death penalty. See, e.g., Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976). So long as the sentencing scheme satisfies the “twin objectives” of the 1976 Cases, it is constitutional. Spaziano, 468 U.S. at 459, 104 S.Ct. at 3161. The first objective is that the state “must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not.” Id. at 460, 104 S.Ct. at 3162. Secondly, it must also “allow the sentencer to consider the individual circumstances of the defendant, his background, and his crime.” Id. at 460, 104 S.Ct. at 3162, citing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
After the defendant has been convicted of first degree murder the Arizona statute requires the prosecutor to prove beyond a reasonable doubt at least one statutory aggravating circumstance in order for the sentencer to consider the statutory maximum penalty of death. State v. Richmond, 136 Ariz. at 322, 666 P.2d at 67. *1054This is the first “distinguishing” factor required. Second, the trial judge must consider all proffered mitigating circumstances, the individual circumstances of the defendant, any presentence report and any other factors in mitigation. Knapp v. Cardwell, 667 F.2d 1253, 1259 (9th Cir.), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982). Lastly, these aggravating factors and mitigating factors are weighed against each other to determine if the punishment should be. death. A.R.S. § 13-703(E).
No where in the concerns of Furman, or the 1976 Cases did the Court say that to comply with the constitution the states had to include the determination of the punishment of death as an element of an offense of a crime. Gregg, 428 U.S. at 193-95, 96 S.Ct. at 2934-35; Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) (legislature may narrow definition of capital offense or more broadly define capital offense and narrow punishment determination with findings of aggravating circumstances). If the Supreme Court had found that because death is different it required the states to create a new crime of “capital murder”, it would also have expressly held that the death eligibility elements must be tried to a jury. This it has not done. “The point is simply that the purpose of the death penalty is not frustrated by, or inconsistent with, a scheme in which the imposition of the penalty in individual cases is determined by a judge.” Spaziano, 468 U.S. at 462-63, 104 S.Ct. at 3163.
The Supreme Court in McMillan emphasized that they should defer to the State’s “chosen course in the area of defining crimes and prescribing penalties” unless “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” McMillan v. Pennsylvania, 106 S.Ct. at 2416-17. The Court found in analyzing the Pennsylvania law that the facts which invoked a prescribed punishment were not elements of the offense subject to proof beyond reasonable doubt by a jury — but provable by a preponderance to a judge. Id. at 2418-19. The statute did not discard the presumption of innocence nor create any other presumptions so as to relieve the prosecution of its burden of proving guilt; it neither altered the maximum penalty for the crime committed nor created a separate offense calling for a separate penalty; and it operated only to limit the sentencing court’s discretion in selecting a penalty within the range already available to it with the special finding. Id. at 2417-18.
The Arizona statute passes muster under similar factors. It does not alter the presumption of innocence and the prosecutor must prove all the elements of first degree murder beyond a reasonable doubt. The penalty for first degree murder is “punishable by death or life imprisonment as provided by 13-703.” A.R.S. § 13-1105. Therefore, the maximum punishment for first degree murder is death. The method of establishing that maximum punishment (A.R.S. § 13-703) does not alter the maximum penalty nor create a separate crime calling for a separate penalty. McMillan, 106 S.Ct. at 2417. The statute limits the Court’s discretion in selecting a penalty. A.R.S. § 13-703(E); State v. Zaragoza, 135 Ariz. 63, 69, 659 P.2d 22, 28, cert. denied, Zaragoza v. Arizona, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983). Although it is the harshest punishment, the Supreme Court has said the distinctions between capital and noncapital sentencing are not so clear. Spaziano, 468 U.S. at 461, 104 S.Ct. at 3162. The Arizona sentencing criteria in a proper manner specify which first degree murder convictions warrant the maximum statutory punishment of death.
3. Arizona requires aggravating factors be proved beyond a reasonable doubt.
Arizona went farther than the requirements of McMillan. The Supreme Court in McMillan refused to hold that In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), requires that sentencing factors be proven beyond a reasonable doubt. McMillan, 106 S.Ct. at 2416-18, citing Patterson v. New York, 432 U.S. 197, 213, 97 S.Ct. 2319, 2328, 53 L.Ed.2d 281 (1977). However, the Arizona courts *1055have required that the prosecutor prove at least one statutory aggravating circumstance beyond a reasonable doubt. A.R.S. § 13-703; State v. Richmond, 136 Ariz. 312, 666 P.2d 57, 67, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983). This additional requirement further insures that the mandate of the 1976 Cases is met —that the factors which single out individuals for the death penalty be proven with a high degree of reliability and consistency.
4. Sentencing does not have to be tried to a jury.
The Supreme Court has never held that capital sentencing must be tried to a jury. “[T]here is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.” McMillan, 106 S.Ct. at 2420. “The fact that a capital sentencing is like a trial ... does not mean that it is like a trial in respects significant to the Sixth Amendment’s guarantee of a jury trial.” Spaziano, 468 U.S. at 459, 104 S.Ct. at 3161. “[T]he purpose of the death penalty is not frustrated by, or inconsistent with, a scheme in. which the imposition of the penalty in individual cases is determined by a judge.” Id. at 462-63, 104 S.Ct. at 3163.
Arizona’s aggravating factors are not elements of a crime, they are only determinants used to decide whether to apply the maximum punishment for first degree murder. The sentencing factors do not violate any constitutional guarantees of a jury trial. Either a judge or a jury may constitutionally determine a sentence for a crime.
IV.
“ESPECIALLY HEINOUS, CRUEL, OR DEPRAVED MANNER”
The majority also concludes that the aggravating circumstance provided in A.R.S. § 13-703(F)(6) (the murder was committed “in an especially heinous, cruel or depraved manner”), violates the Eighth Amendment by failing to adequately channel the decision maker’s discretion. The trial judge here found two separate aggravating circumstances: 1) that the defendant committed the offense as consideration for pecuniary gain; 2) that he committed the offense in an especially cruel, heinous and depraved manner. Transcript of the Sentencing Hearing, November 14, 1980, special verdict, Hon. Ben C. Birdsall, pp. 93-97. As the trial judge found that no mitigating factors were sufficiently substantial to warrant leniency (Id.), the finding of the “pecuniary gain” factor would be enough to sentence Adamson to death. A.R.S. § 13-703(E). State v. Smith, 146 Ariz. 491, 494, 707 P.2d 289, 302 (1985) (elimination of some aggravating factors in absence of mitigating circumstances does not mandate a remand to the trial court for resentencing). However, I disagree with the majority’s holding that F(6) is unconstitutional. The Arizona Supreme Court has adopted a constitutionally acceptable limiting construction of the language of (F)(6), and that limiting construction was applied properly in this case.
The Arizona Supreme Court provides a limiting construction of (F)(6) in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327, reh’g denied, 463 U.S. 1236, 104 S.Ct. 32, 77 L.Ed.2d 1452 (1983). However, the majority finds Gretzler construes the word “cruel” over broadly. I disagree. In Gretzler, the Arizona Supreme Court stated that “[wjhere ... there is no evidence that the victims actually suffered physical or mental pain prior to death, or where the evidence presented is inconclusive, we have held that cruelty was not shown.” Gretzler, 135 Ariz. at 51, 659 P.2d at 10. This limiting construction has been adhered to in subsequent cases. See, e.g., State v. LaGrand, 153 Ariz. 21, 36, 734 P.2d 563, 578, cert. denied, — U.S. -, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); State v. Wallace, 151 Ariz. 362, 367, 728 P.2d 232, 237 (1986), petition for cert. filed, (June 10, 1987). The majority argues that this limitation operates “to include virtually all first degree murders where it can be proven that the victim was conscious.” Maj. op. at 1034. But this has not been the result in Arizona.
A review of the post-Gretzler eases finds that the circumstances surrounding the *1056murder in each case resulting in a death sentence, were sufficient to establish the victim’s actual suffering as opposed to a mere state of consciousness. See, e.g., State v. LaGrand, 153 Ariz. at 36, 734 P.2d at 578 (1987) (victim bound and gagged, threatened with death more than once, had a letter opener held to his throat, received twenty-four stab wounds of which only five would have immediately caused death); State v. Castaneda, 150 Ariz. 382, 394, 724 P.2d 1, 12 (1986) (victim sexually abused, forced to walk naked and barefoot into the desert, begged for his life, was stabbed four times in the chest, died in writhing pain while lying on a red ant hill); State v. Bracy, 145 Ariz. 520, 537, 703 P.2d 464, 481 (1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932 (1986) (victims herded about home at gunpoint, bound and gagged lying on bed, heard attackers refer to their expandability, except for first victim, endured “unimaginable terror of having their loved ones shot to death within their hearing and then having to wait for their own turn to come”); State v. Chaney, 141 Ariz. 295, 312, 686 P.2d 1265, 1282 (1984) (victim attacked in car by defendant with high powered rifle, struck by approximately 200 pieces of flying glass and metal, had arm almost completely severed, bled slowly for approximately 30 minutes, begged for help, acknowledged his impending death); State v. Gillies, 135 Ariz. 500, 513, 662 P.2d 1007, 1020 (1983) (victim repeatedly raped, cast from a 40 foot cliff, begged for mercy, before having her skull crushed by boulders thrown by attackers).
In an attempt to show the over broad application of Gretzler’s cruelty limitation, the majority states that “in nearly every case in which a finding of cruelty was reversed, the court concluded only that the prosecution had not proven the victim was conscious.” Maj. op at 1033-34. In each of these decisions, the Arizona Supreme Court concluded that the victims’ consciousness had not been established, and therefore, neither had cruelty. See Wallace, 151 Ariz. at 367, 728 P.2d at 237; State v. Poland, 144 Ariz. 388, 405, 698 P.2d 183, 200 (1985), aff'd 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986); State v. Villafuerte, 142 Ariz. 323, 331, 690 P.2d 42, 50 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1234, 84 L.Ed.2d 371 (1985); State v. Graham, 135 Ariz. 209, 212, 660 P.2d 460, 463 (1983); State v. Jeffers, 135 Ariz. 404, 429, 661 P.2d 1105, 1130, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983); State v. Zaragoza, 135 Ariz. 63, 69, 659 P.2d 22, 28, cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983). But there is nothing startling in that regard. If, per Gretzler, the victims’ suffering is a necessary element of a cruelty finding, then the failure to establish consciousness logically precludes a finding of cruelty. Yet, it does not follow that the Arizona Supreme Court would have found cruelty based on consciousness without some evidence of actual suffering, and the majority can cite no case in which that court has espoused such a position.
The majority’s argument is more untenable in light of the Arizona Supreme Court’s decision in Adamson’s own appeal. Less than four months after Gretzler was decided, the court made it very clear that mere consciousness could not suffice to establish cruelty. Rather, in Adamson, 136 Ariz. at 276, 665 P.2d at 998, the court stated that “[t]he defendant must also intend that the victim suffer or reasonably foresee that there is a substantial likelihood that the victim will suffer as a consequence of the defendant’s acts.” The majority claims that the Arizona Supreme Court expanded the concept of cruelty when it added the requirement that the prosecution prove the defendant’s intent to cause suffering, or the reasonable foreseeability of that suffering. To the contrary, because Adamson saddled the prosecution with an additional element of proof, this narrowed the construction of cruelty.
And contrary to the majority’s discussion, the Adamson prerequisite has been consistently applied in all post-Adamson cases. In some cases, as the majority has acknowledged, the Arizona Supreme Court has cited Adamson for the intent/foreseeability prerequisite and proceeded to analyze the facts accordingly. See State v. (Bernard) Smith, 146 Ariz. 491, 504, 707 *1057P.2d 289, 302 (1985); Bracy, 145 Ariz. at 537, 703 P.2d at 481; State v. McCall, 139 Ariz. 147, 161, 677 P.2d 920, 934 (1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984); State v. McDaniel, 136 Ariz. 188, 200, 665 P.2d 70, 82 (1983). In other cases, the court has not cited Adamson. However, in each of these cases in which cruelty was found, the facts adequately satisfy the Adamson prerequisite. See, e.g., State v. Correll, 148 Ariz. 468, 480, 715 P.2d 721, 733 (1986) (victims bound, transported, laid on ground in desert, shot seriatum); State v. Carriger, 143 Ariz. 142, 160, 692 P.2d 991, 1009 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985) (victim pleaded for his life, was bound, was beaten from behind, unable to ward off the blows); State v. Lambright, 138 Ariz. 63, 75, 673 P.2d 1, 13 (1983), cert. denied, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 203 (1984) (victim abducted, transported, sexually assaulted twice, choked, stabbed in chest, abdomen and neck, the knife being twisted and turned while inside her). I have found no post-Adamson decision in which cruelty was found in the absence of evidence of intent or foreseeability. For example, in Chaney, 141 Ariz. at 312, 686 P.2d at 1282, the court cited Adamson and stated the requirement that “cruelty must be foreseeable by [the] defendant.” The court then devoted an entire paragraph to a discussion of the facts supporting foreseeability:
Chaney knew of what the AR-15 was capable; he explained its use and power to Deanna. Chaney stood close enough to the victim to see that the victim was in great pain; Chaney then fired again. When Chaney left he knew the victim was not dead and Chaney knew the victim was suffering. The murder was cruel.
Id. In State v. Rossi, 146 Ariz. 359, 365, 706 P.2d 371, 377 (1985), the court did not cite Adamson, but similarly included a reference to the defendant’s use of “ammunition that was designed to inflict greater tissue damage than ordinary bullets.”
That Rossi and other opinions do not include a citation to Adamson or a specific conclusion as to intent or foreseeability should not be controlling. Based on Proffitt v. Florida, 428 U.S. 242, 255, n. 12, 96 S.Ct. 2960, 2968, n. 12, 49 L.Ed.2d 913 (1976), we should look to the circumstances of the cases, not merely the court’s language, to determine whether a limiting construction has been abandoned. Neither Rossi nor any other post-Adamson decision indicates that the Arizona Supreme Court has abandoned the Adamson prerequisite.
Thus, taking Gretzler and Adamson together, the Arizona Supreme Court has set forth a construction of cruelty that requires a showing that the victim suffered physical or mental pain prior to death, and that the defendant intended or could reasonably foresee that the victim would so suffer. This construction “channels] the sentencer’s discretion by clear and objective standards that provide ‘specific and detailed guidance;’ and that ‘make rationally reviewable the process for imposing a sentence of death.’” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980) quoting Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990-91, 49 L.Ed.2d 944 (1976); Proffitt, 428 U.S. at 253, 96 S.Ct. at 2967; Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976).
In Maynard v. Cartwright, — U.S, -, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) the Supreme Court affirmed the Tenth Circuit (en banc) finding that the aggravating circumstance of “especially heinous, atrocious, or cruel” of Oklahoma’s capital sentencing statute violated the Eighth Amendment. Id. 108 S.Ct. at 1857. The Court found the words did not sufficiently guide the jury and that the Oklahoma courts had not cured the infirmity by a limited construction of the terms. Id. Nor, could the Tenth Circuit’s analysis look at the aggravating circumstance disjunctively — finding “cruel” to be more precise than “heinous” or “atrocious,” Cartwright v. Maynard, 822 F.2d 1477, 1489-90 (10th Cir.1987) (en banc). In Oklahoma, the Court of Criminal Appeals did not specify which term it was relying on when it found the aggravating circumstance to be present. Rather, after reviewing all of the circumstances sur*1058rounding the murder, the court would conclude either that the murder was “at the ‘core’ of the circumstance,” see, e.g., Nuckols v. State, 690 P.2d 463, 472-73 (Okl.Cr.1984), or that it was not so. See, e.g., Odum v. State, 651 P.2d 703, 707 (Okl.Cr.1982). Thus, as the Tenth Circuit alluded, a court reviewing such Oklahoma decisions could only speculate as to what findings underlied the “heinous, atrocious, or cruel” determination. Id. Even though the jury found another, unchallenged aggravating circumstance sufficient to sustain the sentence, Oklahoma had no procedure to save the death penalty when one of several aggravating circumstances relied on was invalid. Id. 108 S.Ct. at 1860. The Court simply vacated the death sentence and automatically imposed a life-imprisonment sentence. Id. at 1857.
Even if the limiting construction of heinousness and depravity runs afoul of the Supreme Court’s Eighth Amendment authority such as Maynard v. Cartwright, — U.S. -, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), this case is unaffected. In particular, because the Arizona Supreme Court found that Adamson’s crime was cruel, but did not make a finding as to heinousness and depravity, any alleged constitutional deficiency surrounding those latter two terms is irrelevant to this appeal.
The Arizona Supreme Court reads the disjunctive language of (F)(6) (“heinous, cruel, or depraved”) as permitting the establishment of this aggravating circumstance upon a finding of one or more of the statutory terms. See Wallace, 151 Ariz. at 366-67, 728 P.2d at 236-37; Gretzler, 135 Ariz. at 51, 659 P.2d at 10. The court has frequently found (F)(6) to be present in a case based only on a finding of cruelty, see, e.g., State v. Harding, 141 Ariz. 492, 501, 687 P.2d 1247, 1256 (1984); State v. (Robert) Smith, 138 Ariz. 79, 85-86, 673 P.2d 17, 23-24 (1983); McDaniel, 136 Ariz. at 200, 665 P.2d at 82; Gillies, 135 Ariz. at 512-513, 662 P.2d at 1019-20, or only on a finding of heinousness and depravity, see, e.g., State v. Fisher, 141 Ariz. 227, 252, 686 P.2d 750, 775 (1984); State v. Richmond, 136 Ariz. 312, 319, 666 P.2d 57, 64 (1983); Jeffers, 135 Ariz. at 429-30, 661 P.2d at 1130-31; Zaragoza, 135 Ariz. at 69-70, 659 P.2d at 28-29.
There is a significant difference between the way Arizona employs its disjunctive statute and the way Oklahoma was employing its disjunctive statute. The Arizona Supreme Court severs the terms used in (F)(6) and analyzes each one separately. See Wallace, 151 Ariz. at 367, 728 P.2d at 237; Gretzler, 135 Ariz. at 51, 659 P.2d at 10. All of the court’s decisions clearly reveal whether the (F)(6) determination was based on “cruelty” or “heinousness and depravity”, or both. Moreover, for “cruelty”, the finding in this case, the essential factors for the finding are well defined. Therefore, the infirmities which defeated the Oklahoma statute in Maynard, on grounds of cruelty alone, are not present here.
In Adamson, the Arizona Supreme Court concluded that “the murder was accomplished in an especially cruel manner and that the trial court properly found the aggravating circumstances under subsection (F)(6) of the statute.” 135 Ariz. at 266-67, 665 P.2d at 988-89. The court did not discuss heinousness or depravity and reiterated the trial court’s findings as follows:
The victim clearly suffered in the instant case. Witnesses who were inside buildings hundreds of feet from the explosion testified that they heard Bolles screaming for help. Bolles had particles from the bomb imbedded in his body. One leg was shattered from the upper hip to his ankle and had the appearance of hamburger. The other leg and one arm were also severely mutilated. The force of the explosion sent a piece of flesh the size of a softball across the parking lot. The means used to kill Bolles made it reasonably foreseeable to Adamson that if Bolles did not die instantaneously there was a substantial likelihood that he would suffer a great deal from his injuries.
135 Ariz. at 266,
Adamson, 665 P.2d at 988. This excerpt plainly follows the channels set up in Gretzler (victim’s suffering) and earlier in the same Adamson opinion (intent/foreseeability). No error exists in the court’s fac*1059tual findings on the existence of suffering or foreseeability, considering the presumption of correctness to which such findings are entitled. 28 U.S.C. § 2254(d). Therefore, (F)(6) was not applied in this case in an unconstitutional manner. The Arizona Supreme Court properly limited the construction of (F)(6) and that limiting construction was properly applied to Adamson and his crime.
The majority calls the Arizona Supreme Court’s review of Judge Birdsall’s special verdict “[p]ost hoc appellate rationalizations.” Maj. op. at 1036. The majority cites Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1984) and Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978) to support this contention. However, here there is no impermissible shifting of responsibility from the sentencing authority to the appellate court, as there was in Caldwell. In Caldwell, the prosecutor told the jury that because their decision to apply the death penalty was reviewed automatically by the state supreme court, their decision was not final. Id. 472 U.S. at 325-26, 105 S.Ct. at 2637-38. The U.S. Supreme Court held that the prosecutor cannot use the element of judicial review as an influence on the jury to minimize their role in sentencing. Id. at 341, 105 S.Ct. at 2646. Here, Judge Birdsall made the findings of fact and final sentence with no element of prosecutorial misconduct or improper influence which sought to give his sentencing authority a “view of [his] role in the capital sentencing procedure that was fundamentally incompatible with the Eighth Amendment’s heightened ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’” Id. at 340, 105 S.Ct. at 2645 (quoting Woodson v. North Carolina, 428 U.S. at 305, 96 S.Ct. at 2991).
The issue in Presnell is inapposite as it concerned the fact that the sentencing authority had not found the underlying “capital offense” which triggered the death penalty. Id. 439 U.S. at 15, 99 S.Ct. at 236. Further, the Arizona Supreme Court was not reaching for an aggravating circumstance that had not been presented and proved beyond a reasonable doubt to the judge. See Cole v. Arkansas, 333 U.S. 196, 201-202, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). The Arizona Supreme Court, as required by Arizona law, undertook “an independent review of the facts that establish the presence or absence of aggravating and mitigating circumstances.” State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976); 17 A.R.S. Rule of Criminal Procedure 31.2(b) and A.R.S. § 13-4031 (formerly A.R.S. § 13-1711) (providing for automatic appeal of a death sentence to the state supreme court).
The gravity of the death penalty requires that we painstakingly examine the record to determine whether it has been erroneously imposed.
Richmond, 114 Ariz. at 196, 560 P.2d at 51. This process, while not required, has been encouraged by the U.S. Supreme Court as a “check against the random or arbitrary imposition of the death penalty,” Gregg v. Georgia, 428 U.S. at 206, 96 S.Ct. at 2940; Pulley v. Harris, 465 U.S. 37, 45, 104 S.Ct. 871, 877, 79 L.Ed.2d 29 (1984) (holding appellate proportionality review is encouraged but not required by the Constitution) and safeguards the “reliability of the sentencing process” to prevent arbitrary and capricious sentencing. California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 840, 93 L.Ed.2d 934 (1987). The Arizona Supreme Court properly found that the evidence supported the finding of the F(6) aggravating circumstance of “cruelty” based upon the trial judge’s findings and upon an independent review of the evidence.
V.
PRESUMPTION OF DEATH
I understand the majority’s reticence in imposing the death penalty. “It can never be less than the most painful of our duties to pass on capital cases.... However, there comes a time in every case when a court must ‘bite the bullet’.” Eddings v. Oklahoma, 455 U.S. 104, 127, 102 S.Ct. 869, 883, 71 L.Ed.2d 1 (1982) (Burger, J., dissenting). It is our job here “to say what the law is.” Marbury v. Madison, 5 U.S. *1060(1 Cranch) 137, 177-78, 2 L.Ed. 60 (1803). The Arizona legislature has promulgated its sentencing statute through its legislative process and we must apply it as the law unless it is unconstitutional. The majority holds that the Arizona sentencing statute (Arizona Revised Statutes [A.R.S.] § 13-703) (see maj. op. at 1015, n. 2 for full text of statute) is unconstitutional, claiming that it precludes presentation of all mitigating evidence and creates a presumption of death. I disagree. The sentencing scheme here is constitutional on its face and as applied. First, Arizona allows consideration of all mitigating evidence and the trial court here allowed such consideration. Second, Arizona constitutionally allows the trial judge to ascribe weight to the mitigating evidence. Third, the word “shall” in the statute does not create a presumption of death or a mandatory sentencing scheme.
1. Arizona allows consideration of all mitigating evidence.
The Arizona statute provides for the presentation of all mitigating evidence with the burden of production on the defendant. “Any information relevant to any mitigating circumstances included in subsection G of this section may be presented regardless of its admissibility under the rules governing admission of evidence at criminal trials.... The burden of establishing the existence of any of the circumstances included in subsection G of this section is on the defendant.” A.R.S. § 13-703(C).
First, the statute provides for the presentation of “any information relevant to any mitigating circumstances ...” This satisfies the mandate in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and its progeny: “[T]he Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Eddings, 455 U.S. at 110, 102 S.Ct. at 874, citing Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (emphasis in original). Subsection G of the statute provides just that:
Mitigating circumstances shall be any factors proffered by the defendant or the state which are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense including but not limited to the following_
A.R.S. § 13-703(G) (emphasis added). Thus, the statute on its face complies with the Constitution.
Second, the trial court in this case considered all relevant mitigating factors:
The Court makes the following findings as ... to the existence of any of the mitigating circumstances included in Subsection G thereof.
In this regard the Court has considered not only the five specific mitigating circumstances enumerated in the statute, but also any factors proffered by the defendant or the state which are relevant in determining whether to impose a sentence of death, including all aspects of the defendant’s character, propensities, or record, and all of the circumstances of the offense so far as these have been made known to the Court. In making these findings the Court has disclosed to defendant’s counsel all material contained in the presentence report and supplement thereto.
The Court has further considered any information relevant to any mitigating circumstances regardless of its admissibility under the rules governing admission of evidence in a criminal trial.... Mitigating circumstances, Subsection G. The Court finds that none of the mitigating circumstances specifically set forth in Subsection G exist.
The Court further finds that there are no other mitigating circumstances sufficiently substantial to call for leniency. In this regard the Court has considered the fact that the defendant has cooperated with the United States Government and with the State of Arizona in criminal *1061cases and in criminal investigations, that at least some of the cases and investigations involve serious criminal activity, that some of these matters are still pending and that the defendant states that he is willing to continue this cooperation. The Court has further considered the argument that if the defendant is given a life sentence through his cooperation it may be possible to convict others who are also responsible for the death of the victim.
The Court has also considered in mitigation the legal proceedings in this case since its inception to the time of this sentencing.
Transcript of the Sentencing Hearing, November 14, 1980, Special Verdict, Hon. Ben C. Birdsall, excerpts of pages 94-98 (emphasis added). Thus, the statute was applied in this case in accordance with the Constitution. The statute as interpreted by the Arizona courts also provides for full consideration of any mitigating circumstances, State v. Poland, 144 Ariz. 388, 406, 698 P.2d 183, 201 (1985) aff'd, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) (court considered all proffered mitigating factors including those not listed in the Arizona statute), therefore it is constitutional. Jurek v. Texas, 428 U.S. 262, 272-76, 96 S.Ct. 2950, 2956-58, 49 L.Ed.2d 929 (1976) (Supreme Court found statutory scheme constitutional as construed by the Texas courts); McKenzie v. Risley, 842 F.2d 1525, 1542 (9th Cir.1988) (Montana statute as applied is constitutional).
The trial court here did not restrict or exclude any mitigating evidence as did the trial court in Eddings, 455 U.S. at 113, 102 S.Ct. at 876. Nor did the trial court simply pronounce death once the aggravating circumstances were found as in the mandatory schemes. Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987) (court struck down Nevada law mandating death sentence for inmates who kill while serving a life sentence). The Arizona statute has no preclusion on its face and the statute as applied by the trial court here allowed in all mitigating facts. Thus the trial court followed the mandate of Ed-dings and Lockett.
2. Arizona constitutionally allows the trial judge to ascribe weight to the mitigating evidence.
The majority finds unconstitutional th^ fact that Arizona requires the defendant to prove the existence of mitigating factors by a preponderance of the evidence because it “precludes the sentencer from weighing all relevant mitigating evidence.” Maj. op. at 1039. Again I disagree. The 1976 Cases require states to rationally distinguish between those individuals for whom the death penalty is appropriate from those for whom it is not and in so doing the sentencer must consider the individual circumstance of the defendant, his background and his crime. Proffitt, 428 U.S. at 252-53, 96 S.Ct. at 2966-67; Gregg, 428 U.S. at 193-95, 96 S.Ct. at 2934-35. Part of this individual consideration includes allowing the defendant to present, during the sentencing hearing, all circumstances mitigating the imposition of the death penalty, Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978), and requires the sentencer to listen to this mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 115, n. 10, 102 S.Ct. 869, 877 n. 10, 71 L.Ed.2d 1 (1982).
But this rule requiring the sentencer to allow in and to listen to all mitigating evidence, does not require that the sentencer give a particular weight to the evidence or that the sentencer consider irrelevant evidence. Lockett and Eddings allow the sen-tencer and the reviewing court to “determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.” Eddings, 455 U.S. at 114-15, 102 S.Ct. at 877. “Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on defendant’s character, prior record, or the circumstances of his offense.” Lockett, 438 U.S. at 604, n. 12, 98 S.Ct. at 2965, n. 12. In Eddings the Court remanded to the trial court and said:
Eddings was a youth of 16 years at the time of the murder. Evidence of a difficult family history and of emotional dis*1062turbance is typically introduced by defendants in mitigation [citations omitted]. In some cases, such evidence properly may be given little weight But when the defendant was 16 years old at the time of the offense there can be no doubt that evidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance is particularly relevant.
Eddings, 455 U.S. at 115, 102 S.Ct. at 877 (emphasis added). The Supreme Court reiterated: “On remand, the state courts must consider all relevant mitigating evidence and weight it against the evidence of the aggravating circumstances. We do not weigh the evidence for them.” Id. at 117, 102 S.Ct. at 878 (emphasis added).
In Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), cited by the majority, the Supreme Court analyzed the Virginia death penalty statute noting that the statute gives the jury greater discretion than other systems such as the Texas system upheld in Jurek, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The Court, citing Eddings, stated that the sentencer must be “free to weigh the relevant mitigating factors” and that in the end “it is the jury that must make the difficult, individualized judgment.” Id. 476 U.S. at 34, 106 S.Ct. at 1687. The majority contends that the Arizona statute does not allow the sentencer here to be “free to weigh the relevant mitigating factors.” Maj. op. at 1040, citing Turner, 476 U.S. at 34, 106 S.Ct. at 1687.
The majority’s objection concerns the method with which Arizona has chosen to weigh the mitigating evidence. Their contention is that this method precludes the consideration required by the Constitution. The Supreme Court has been unwilling to say that there “is any right way for a state to set up its capital sentencing scheme,” Spaziano, 468 U.S. at 464, 104 S.Ct. at 3164, so long as it is constitutional. The manner in which Arizona has set up its sentencing scheme meets all the constitutional requirements of the 1976 Cases.
Before someone is subject to the Arizona death penalty, the state must charge and prove a defendant guilty of first degree murder beyond a reasonable doubt. State v. Richmond, 136 Ariz. 312, 322, 666 P.2d 57, 67 (1983). Then the state must prove one of the statutory aggravating circumstances beyond a reasonable doubt. State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (1980), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). This meets the first objective of the 1976 Cases, that is, to distinguish between those individuals for whom the death penalty is appropriate from those for whom it is not. Gregg, 428 U.S. at 193-95, 96 S.Ct. at 2934-35. If the state cannot show aggravating circumstances beyond a reasonable doubt, the trial court must impose a life sentence and cannot impose a death sentence. A.R.S. § 13-703(E). However, if the state does show at least one aggravating circumstance beyond a reasonable doubt, the burden is then upon the defendant to show mitigating circumstances. A.R.S. § 13-703(E); Richmond, 136 Ariz. at 316, 666 P.2d at 61.
The Arizona statute provides that “the burden of establishing the existence of the circumstances included in subsection G (mitigating facts) of this section is on the defendant.” A.R.S. § 13-703(C). And, that the trial judge shall impose the death penalty if “there are no mitigating circumstances sufficiently substantial to call for leniency.” A.R.S. § 13-703(E). This has been interpreted by the Arizona Supreme Court to mean:
Only after concluding that a defendant has proved by a preponderance of the evidence certain mitigating circumstances must a trial judge determine whether the proven mitigating circumstances warrant leniency. If the trial judge concludes that proven mitigating circumstances warrant leniency, then he must impose a life sentence. If, however, the trial judge concludes that the proven mitigating circumstances do not warrant leniency ... then he must impose a death sentence.
State v. Rossi (II), 154 Ariz. 245, 246, 741 P.2d 1223, 1224-25 n. 1 (1987). See also State v. Poland, 144 Ariz. 388, 406, 698 *1063P.2d 183, 201 (1985), aff'd, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986):
Defendants have the burden of proving mitigating factors by a preponderance of the evidence.... The sentencing court and this Court on appeal may take cognizance of evidence tending to refute a mitigating circumstance.
The fact that the defendant has the burden of production for the mitigating factors is not unconstitutional. Eddings, 455 U.S. at 110, 102 S.Ct. at 874 (“that the defendant proffers”). The Supreme Court has expressed that the choice of what to present during sentencing, or the choice of presenting nothing at all, should be in the hands of the defendant as part of the strategy of the trial. Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3122-26, 97 L.Ed.2d 638 reh’g denied, — U.S. -, 108 S.Ct. 32, 97 L.Ed.2d 820 (1987) (defendant offered no evidence during mitigation/aggravation hearing); Campbell v. Kincheloe, 829 F.2d 1453, 1463 (9th Cir.1987), cert. denied, — U.S. -, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). In this case, Adamson proffered his cooperation with law enforcement authorities, his offer of further cooperation, and the length, subject and duration of the legal proceedings of the case since its beginning. Transcript of the Sentencing Proceeding at 98.
The majority objects to the fact that some weight is ascribed to the evidence before it is considered “mitigating." Arizona’s method of ascribing a weight in this manner is no different than the weighing described in Eddings:
The burden of proof to establish mitigating circumstances is not met by the lack of proof, as the appellant contends, but by the production of some form of affirmative evidence from which it could be inferred that the defendant’s participation was relatively minor or that he could not have reasonably foreseen the risk of death to another person, [citations omitted] Appellant seems to contend that the prosecution should be required to prove beyond a reasonable doubt the nonexistence of mitigating circumstances. We adhere to our decision in State v. Watson, where we rejected that contention.
State v. Greenawalt, 128 Ariz. 150, 173, 624 P.2d 828, 851, cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981) (emphasis added). This “some form of affirmative evidence” has since been interpreted by the Arizona Supreme Court, in making their independent review of the imposition of the death penalty, as whether a defendant has established a mitigating circumstance by a preponderance of the evidence, and has since applied this rule to the trial court. State v. McMurtrey, 143 Ariz. 71, 72, 691 P.2d 1099, 1100 (1984), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 530 (1984); State v. Rossi (II), 154 Ariz. 245, 246-47, 741 P.2d 1223, 1224-25 (1987). The Court describes the process as:
[T]he trial court acts first as the fact finder. It must consider whether the state has proven any of the aggravating factors enumerated in [A.R.S. 13-703(F) ] beyond a reasonable doubt ... It must also determine whether the defendant has shown mitigating circumstances by a preponderance of the evidence [citing McMurtrey, 143 Ariz. at 73, 691 P.2d at 1101]. Mitigating circumstances are defined as “any factors ... relevant in determining whether to impose a sentence less than death.” A.R.S. 13-703(G). After the trial court has made these findings of fact, it then engages in a balancing test in which it determines whether the mitigating factors are sufficiently substantial to call for leniency. [A.R.S. 13-703(C)].
State v. Leslie, 147 Ariz. 38, 49, 708 P.2d 719, 730 (1985).
When an Arizona trial court makes findings of fact it is considering all of the defendant’s mitigating circumstances. If a fact is not mitigating, then it is irrelevant and may be disregarded. Lockett, 438 U.S. at 605, n. 12, 98 S.Ct. at 2965, n. 12. If a mitigating factor has no weight at alb weighing it against aggravating circumstances would be futile. The Eleventh Circuit has spoken extensively on this point:
*1064Lockett instructs thát the sentencing body be free to consider the impact of the defendant’s background in making its decision. To say, however, as [defendant] maintains, that Lockett imposes a duty on the sentencer to regard such evidence as mitigating is quite another matter.... There is no requirement that the court agree with the defendant’s view that it is mitigating, only that the proffer be given consideration.
Raulerson v. Wainwright, 732 F.2d 803, 807 (11th Cir.1984) (emphasis in original); See also Johnson v. Wainwright, 806 F.2d 1479, 1484, reh’g denied, 810 F.2d 208 (11th Cir.1986) (although the sentencer may not be precluded from considering mitigating factors, “it is of no constitutional moment” that the sentencing judge evaluated the factor as having little or no mitigating value); Hall v. Wainwright, 733 F.2d 766, 775 (11th Cir.1984), cert. denied, 471 U.S. 1107, 105 S.Ct. 2344, 85 L.Ed.2d 858 (1985) (sen-tencer may determine the weight to be given evidence of relevant mitigating circumstances).
The majority cites Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972) for the proposition that “there is an ‘essential difference’ between guiding the care with which the sentencer determines how much weight to accord evidence, and requiring that as a predicate to consideration of that evidence, it must be found true beyond a reasonable doubt, or by some other evidentiary standard.” Maj. op. at 1039. But the issue in Cool concerned an accomplice instruction requiring the jury to find exculpatory evidence, proffered by defendant about an accomplice, true beyond a reasonable doubt. Cool, 409 U.S. at 102-103, 93 S.Ct. at 356. This instruction was found improper because it allowed the jury to convict despite its failure to find guilt beyond a reasonable doubt. Id. at 103, 93 S.Ct. at 356. But this is not a pronouncement on the kind of weight evidence must have at sentencing, or the evidentiary standard to be applied to mitigating circumstances in a death sentence statute.
The process of determining if defendant has met this preponderance standard is exactly the kind of individualized consideration required by the Constitution. It does not preclude the sentencer from considering or weighing mitigation evidence as the majority suggests. For example, in State v. Jordan, 126 Ariz. at 290, 614 P.2d at 832, the fact that the defendant was somewhat intoxicated did not automatically make that fact a mitigating circumstance, although it was fully considered by the trial court. Whether the intoxication was a mitigating circumstance depended on whether “[h]is capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.” Id. The Court said:
Willifred’s testimony falls short of proving the necessary degree of impairment from intoxication. Not only is her testimony inexact as to defendant’s level of intoxication at the time of the crime, it is also devoid of any description of how defendant’s intoxication affected his conduct, other than that he was “mumbling.” Defendant did not mention the influence of drugs or alcohol in his confession, nor did he testify at his sentencing hearing. We agree with the trial court that defendant has failed to prove that his intoxication was a mitigating circumstance.”
Id. 126 Ariz. at 290, at 832. In State v. Gillis, 142 Ariz. 564, 691 P.2d 655 (1984), defendant claimed five mitigating circumstances: age, changed attitudes, intoxication, felony murder instructions and life sentence for his co-defendant. Id., 142 Ariz. at 571, 691 P.2d at 662. The trial court had considered all circumstances yet found that they were insufficient to call for leniency. The Arizona Supreme Court discussed each factor in their independent review of the evidence. Even though defendant was 20 years old, the court found the impact of “youth” was minimized by the extent and duration of the murder (the torture of the victim from beginning until death was eight hours). Next, the defendant claimed intoxication. The Court found that because the victim was held captive for 8 hours, the defendant was not intoxi*1065cated throughout that length of time so as to prevent him from appreciating the wrongfulness of his behavior. The Court found defendant’s changed attitude a mitigating factor because defendant became religious and remorseful, but that the felony murder instruction was not a mitigating factor because there was no doubt here about defendant’s intent to kill. The Court also found that the fact the co-defendant plea bargained for a life sentence was not a mitigating factor. Id.
In State v. Rossi (II), 154 Ariz. 245, 741 P.2d 1223 (1987), the defendant offered two mitigating circumstances and the trial court ruled that defendant did not prove by the preponderance of the evidence: 1) that defendant could be rehabilitated; and 2) that defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired due to cocaine abuse. Id., 154 Ariz. at 248, 741 P.2d at 1226. The trial court had found that in spite of testimony of three expert witnesses that indicated defendant could be rehabilitated that defendant had not proved this by a preponderance. The trial court considered that defendant planned the robbery, used unusually destructive (Hydra-shok) bullets, bragged to his friends about the incident, gave away spent bullets as souvenirs and shot the victim’s neighbor because she was a witness. Id., 154 Ariz. at 248-49, 741 P.2d at 1226-27. The Arizona Supreme Court arrived at a different conclusion and found these factors mitigating. They held in their independent review that the trial courts reasons “have no bearing” on rehabilitation so could not be used to refute defendant’s evidence. Id., 154 Ariz. at 249, 741 P.2d at 1227. The Arizona Supreme Court did not find defendant proved by a preponderance that his cocaine addiction significantly impaired his capacity to appreciate the wrongfulness of his conduct. Id., 154 Ariz. at 251, 741 P.2d at 1229.
Critical to our conclusion are the ‘cover up’ acts that appellant committed on the day of the crimes and appellant’s ability to recall vivid details of the crimes themselves. We do believe, however, that appellant proved by the preponderance of the evidence that his cocaine addiction significantly impaired his capacity to conform his conduct to the requirements of the law. We find very persuasive Dr. Nash’s unrefuted testimony on chemical dependency in general and how addiction fosters an insatiable and life-controlling craving for additional drugs that overwhelms the user’s ability to control his physical behavior.
Id.
These cases show that the Arizona preponderance standard allows the trial court to listen and consider all factors offered as mitigation by the defendant, and weigh and balance the mitigating circumstances against the aggravating circumstances. This procedure characterized as a “proof stage” and objected to by the majority, does not preclude evidence but sifts the evidence, distinguishing between those facts which are mitigating from those which are not. Logically those factors found not to be mitigating by a preponderance, would have no weight at all as mitigating factors in the weighing process and so would not help defendant — but they have been considered by the sentencer.
Where both aggravating and mitigating circumstances are found in a given case, the trial judge, and then the Arizona Supreme Court on review, must determine whether the mitigating circumstances are “sufficiently substantial to call for leniency.” A.R.S. § 13-703(E). If the Court finds one or more aggravating circumstance as listed in A.R.S. § 13-703(F) proven beyond a reasonable doubt then it “shall impose a sentence of death” unless there are mitigating circumstances that are “sufficiently substantial to call for leniency.” A.R.S. § 13-703(E). The number of aggravating and mitigating circumstances is not dispositive, but rather their gravity. “One mitigating circumstance, for example, may be ‘sufficiently substantial’ to outweigh two aggravating circumstances.” State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983), cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Some examples where the mitigating circumstances *1066were found to outweigh the aggravating factors are listed in State v. Gretzler, 135 Ariz. at 55, 659 P.2d at 14:
For example in State v. Brookover, supra, defendant's impaired capacity to appreciate the wrongfulness of his conduct, caused by a medical condition (a brain lesion of a type frequently producing anti-social behavior), outweighed a prior conviction of a drug offense. 124 Ariz. at 41-42, 601 P.2d at 1325-26. The extreme youth of an offender can also be a compelling mitigating circumstance, as demonstrated recently in State v. Valencia, 132 Ariz. 248, 645 P.2d 239 (1982). There, the defendant’s prior convictions arising from a previous violent incident were outweighed by the fact that defendant was only sixteen years old at the time of each crime.... In some cases the combined weight of a number of mitigating factors outweighs the aggravation. For example, in State v. Watson, 129 Ariz. 60, 63-64, 628 P.2d 943, 946-47 (1981), the facts that the murder occurred as the result of an unexpected shootout with the robbery victim in which the victim fired first, that defendant was twenty one years old at the time of the crime, and that there was evidence defendant had done a great deal of genuine soul searching after the crime, had been a model prisoner while going through the appellate process, had set new goals for himself, and attempted to further his education in prison, outweighed his prior conviction for robbery.
Gretzler also discusses other cases where the aggravating circumstances outweigh the mitigating:
For instance in State v. Knapp, supra, defendant’s lack of prior criminal record did not outweigh the extreme cruelty of burning his two children to death. 114 Ariz. at 543, 562 P.2d at 716, resentence aff’d 125 Ariz. 503, 504-05, 611 P.2d 90, 91-92 (1979). Similarly in State v. Ortiz, supra, defendant’s lack of prior criminal record did not excuse his heinous and depraved murder, involving a grave risk of death to others, in which he stabbed a woman to death and then made senseless, indiscriminate attempts to stab and burn to death her three young children. 131 Ariz. at 211, 639 P.2d at 1036. In State v. Bishop, supra, defendant’s lack of prior criminal record and below average intelligence were not sufficiently substantial to outweigh the heinous and depraved killing which defendant obviously relished. 127 Ariz. [531] at 534-35, 622 P.2d [478] at 481-82 (1980). In like manner, in State v. Clark, supra, defendant’s age (20 years old), poor home life as a child, lack of adult criminal record, and emotional problems were found insufficiently substantial to outweigh his senseless, depraved killing of four persons with total disregard of human life, and with undoubted relish, keeping a souvenir of the occasion. 126 Ariz. at 437, 616 P.2d at 897.
State v. Gretzler, 135 Ariz. at 55, 659 P.2d at 14.
The trial court in the instant case followed the letter of the law. It has been previously shown that he considered all the mitigating factors. (See Section V(l), supra). The trial court listened to and assigned weight to the evidence. He concluded that Adamson had not shown the mitigating evidence to be “sufficiently substantial to call for leniency,” all that he was required to do under Arizona law. Transcript of the Sentencing Hearing at 98. The Court went farther than this and found that the aggravating circumstances existed beyond a reasonable doubt and that the mitigating circumstances did not exist beyond a reasonable doubt reaching further than required by Arizona law to consider the existence of mitigating circumstances. Id. This procedure complies with the 1976 Cases and with Lockett. The trial court under the Arizona sentencing scheme gave all mitigating evidence presented careful, constitutional consideration.
3. The Arizona sentencing statute does not create a presumption of death or a mandatory sentencing scheme.
The statute provides that once the aggravating factors have been proved beyond a reasonable doubt and once the defendant *1067has presented the mitigating facts, the trial judge
shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in subsection F of this section and that there are no mitigating circumstances sufficiently substantial to call for leniency.
A.R.S. § 13-703(E) (emphasis added). The trial court in this case followed the statute. The court found two aggravating circumstances, that the defendant committed the offense as consideration for pecuniary gain and that he committed the offense in an especially cruel manner. Transcript of the Sentencing Proceeding, at 93-97. The Arizona Supreme Court found that the murder was accomplished in an especially cruel manner and that the trial court properly found the aggravating circumstance under subsection (F)(6) of the statute. Adamson v. State, 135 Ariz. at 266-67, 665 P.2d at 988-89. The trial court found there were no mitigating circumstances sufficiently substantial to call for leniency. Transcript of the Sentencing Proceeding at 97. Although the majority tries to distinguish Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987), cert. denied, — U.S. -, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988), there is a similarity to this case. Defendant there argued that the statute created a mandatory presumption in favor of the death penalty and placed the burden on the defendant to prove there are sufficient mitigating circumstances to merit leniency. Id. at 1465. Under Washington law, after the jury finds the statutory aggravating circumstance beyond a reasonable doubt, they then are required to deliberate on the following question: “Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?” Id. at 1465-66. As the instruction indicates, the state’s burden of proof carries with it a presumption of leniency, a presumption which the state can overcome only by showing beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency. The trial judge in the instant case found that the mitigating circumstances did not exist “beyond a reasonable doubt.” Transcript of the Sentencing Proceeding at 98.
The majority reasons that because defendant has the burden of persuasion in presentation of mitigating evidence and because the statute contains the word “shall”, that the sentencing scheme is a mandatory one, carrying with it a presumption of death. I have already discussed why the defendant’s burden of persuasion is not unconstitutional (see V(2) above), and I shall show below that the Arizona scheme carries a “presumption of life” and in no way resembles an unconstitutional mandatory sentencing scheme.
After the Supreme Court’s pronouncement in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), where the Supreme Court declared the death penalty “in these cases constitute cruel and unusual punishment,” state legislatures changed their sentencing laws. Id. at 240, 92 S.Ct. at 2727. In 1976, the Supreme Court reviewed five death penalty cases under these new sentencing schemes. In the three cases upholding the “guided-discretion” statutes, the opinions emphasized that those schemes permitted the sentencing authority to consider relevant mitigating circumstances pertaining to the offense and a range of factors about the individual defendant. Gregg v. Georgia, 428 U.S. 153, 197, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 251-52, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. at 270-71, 96 S.Ct. at 2955-56. The Court declared two mandatory sentencing schemes unconstitutional. The opinions stressed they were fatally flawed by their failure to permit presentation of mitigating circumstances for the consideration of the sentencing authority. Woodson v. North Carolina, 428 U.S. 280, 303-05, 98 S.Ct. at 3006; Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 333-34, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974 (1976). Thus, the constitutional mandate is that in capital cases “it is constitutionally required that the sentencing authority have information sufficient to enable it to consider the char*1068acter and individual circumstances of a defendant prior to imposition of a death sentence.” Sumner, 107 S.Ct. at 2720; Gregg, 428 U.S. at 189 n. 38, 96 S.Ct. at 2933 n. 38. So long as the sentencing scheme makes these provisions it is constitutional.
The word “shall” as it appears in the Texas and Montana sentencing schemes has been declared constitutional. In Texas, the capital sentencing procedure requires the jury to answer three questions at the sentencing stage:
(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
Jurek, 428 U.S. at 269, 96 S.Ct. at 2955. If the jury finds that the state has proved beyond a reasonable doubt that each answer to each question is yes, then the death sentence is imposed. Id. The Supreme Court held this system to be constitutional because it provides for presentation of individualized mitigating evidence. Id. at 276, 96 S.Ct. at 2958.
In Montana, upon conviction of a capital offense the “court shall impose [a] sentence of death ... unless there are mitigating circumstances.” McKenzie v. Risley, 842 F.2d 1525, 1541 (9th Cir.1988) (emphasis added). In that case, defendant complained that the procedures for consideration of mitigating factors were unconstitutional. Id. We concluded that the statute as applied by the Montana courts was constitutional. Id. at 1542.
The Montana, Texas and Arizona statutes require the kind of individualized sentencing mandated by the Constitution in spite of their “mandatory language”. The statutes begin with a “presumption of life,” that is, the prosecutor must prove beyond a reasonable doubt that one of the statutory aggravating factors which make the defendant death-eligible exist. If the prosecution carries that burden, then the defendant may present mitigating evidence on his behalf to tilt the balance back in his favor. The sentencing authority, makes the final balancing determination. This scheme in no way resembles the typical mandatory sentencing procedure, which looks only to the aggravating circumstances. Sumner, 107 S.Ct. at 2720. Nor does the word “shall” create any presumption of death — it is the prosecutor who must prove the defendant is death eligible.
This particular issue has been raised numerous times by defendants on automatic appeal to the Arizona Supreme Court. That court’s explanation of the statute is
The statute takes the human element out of the imposition of the death penalty and in doing so supports the constitutionality of the statute. Under the statute, a defendant will stand the same chance of receiving the death penalty from a judge who does not philosophically believe in the death penalty as from a judge who does. By taking the human factor out of the sentencing process the death penalty is then reserved for those who are above the norm of first-degree murderers or whose crimes are above the norm of first-degree murders, as the legislature intended. State v. Blazak, 131 Ariz. 598, 604, 643 P.2d 694, 700, cert. denied, Blazak v. Arizona, 459 U.S. 882 [103 S.Ct. 184, 74 L.Ed.2d 149] (1982); State v. Zaragoza, 135 Ariz. 63, 69, 659 P.2d 22, 28, cert. denied, Zaragoza v. Arizona, 462 U.S. 1124 [103 S.Ct. 3097, 77 L.Ed.2d 1356] (1983); State v. Beaty, 158 Ariz. 232, 762 P.2d 519, 536 (1988); State v. Fulminante, CR-86-0053-AP [1988 WL 61427]. 1988 Ariz. LEXIS 81, June 16, 1988.
Finally, the majority cites Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) for the proposition that the Arizona statute precludes individual sentencing and removes the sentencing judge’s discretion. Maj. op. at 1042. However, *1069Rumsey decided a double jeopardy issue and not the constitutionality of the statute as applied by the Arizona Courts. Rumsey at 205, 104 S.Ct. at 2307.
The sentencing statute allows consideration of all mitigating evidence and the trial court here allowed such consideration. It is constitutional to allow the trial judge to ascribe weight to the evidence and there is no presumption of death or similarity to a mandatory sentencing scheme.
VI.
CONCLUSION
I concur in the majority’s holding that there is insufficient evidence of judicial vindictiveness and that any hearsay statements erroneously admitted were harmless. However, the majority’s constitutional attack on the other five issues is unsound. I dissent from the majority decision to reverse and remand to the district court as Adamson’s death sentence was not imposed as a result of prosecutorial vindictiveness, or in an arbitrary or capricious manner, or in violation of right to trial by jury. The Arizona death sentence statutory aggravating circumstances of “heinous, cruel or depraved” do not inadequately channel the judge’s discretion, and the Arizona death sentence statute does not preclude meaningful consideration of all mitigating evidence or impose a presumption of death.
I would affirm the district court’s denial of Adamson’s petition for writ of habeas corpus.
. See Appendix A in Adamson v. Ricketts, 789 F.2d at 731-32. The sentence was heavily structured to the circumstances. Adamson could not apply for or be eligible for parole until 20 calendar years and 2 calendar months had passed (Id. at ¶ 3), time for sentencing was waived until the conclusion of Adamson’s testimony (Id. at If 8), judges other than the judge assigned to the case may sentence in accordance with the terms of the agreement and are bound by the terms of *1051the agreement (Id. at ¶ 9), place of sentencing may be changed (Id. at ¶ 10), Adamson could not appeal from the second degree judgment and sentence and if he did the agreement was null and void and the original charges were automatically reinstated (Id. at ¶ 11), and Adam-son would serve his sentence outside the State of Arizona (Id. at ¶ 14).