(dissenting).
[¶ 214] The issue is: Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
[¶ 215] For the reasons stated herein, the sentence of death is excessive and dispropor*459tionate to the penalty imposed in similar eases, considering both the crime and the defendant. SDCL 23A-27A-12(3).
[¶ 216] SDCL 23A-27A-12 provides the factors to be reviewed by the Supreme Court regarding a death sentence. For the purpose of this case, I will assume that this death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, and that the evidence supports the jury’s finding of a statutory aggravating circumstance as enumerated in SDCL 23A-27A-1.
[¶ 217] However, as indicated above, SDCL 23A-27A-12(3) mandates that the Supreme Court affirmatively determine that this death sentence is neither excessive nor disproportionate to the penalties imposed in similar cases, considering both the crime and the defendant. In fact, unless we affirmatively determine that the death sentence is neither excessive nor disproportionate to the penalties imposed in criminal cases, then, in that event, SDCL 23A-27A-14 requires that “the court shall sentence such person to life imprisonment.” That is what must be done here.
[¶ 218] Before considering the penalties imposed in similar cases, it is very important to point out that in Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 879, 79 L.Ed.2d 29, 40-41 (1984), the United States Supreme Court held that the Constitution of the United States does not require proportionality review. In other words, it was not necessary for the South Dakota Legislature to enact SDCL 23A-27A-12(3) requiring mandatory proportionality review by the South Dakota Supreme Court. I submit that it was a mistake for the South Dakota Legislature to require mandatory proportionality review when it was not required by the United States Constitution. This statement presumes, of course, that the death penalty was desired by the legislature in most murder cases.
[¶ 219] Most murders are, for the most part, full of aggravating circumstances and at least for death penalty proponents, more than adequate for capital punishment. However, when our legislature has clearly said that those aggravating circumstances are not enough, and that, in addition, there must be mandatory proportionality review by the Supreme Court, it is clear that no death sentence shall be imposed unless we can affirmatively determine that the death sentence is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. In other words, even if we were to conclude that this defendant and this defendant’s crime deserves death, we cannot impose it because it is excessive and disproportionate to the penalties imposed in similar cases. That is our task under SDCL 23A-27A-12(3). It did not have to be that way, but it is. The United States Constitution does not require it but the South Dakota Legislature does.
[¶220] Concerning the mechanics of proportionality review, the majority opinion states:
Rhines argues the pool of similar cases for proportionality review should encompass all homicide cases that were prosecuted or could have been prosecuted under the State’s current capital punishment scheme. He reasons that prosecutorial discretion is an important factor that this Court must consider when ruling on proportionality. The State argues the pool of similar cases should be limited to those South Dakota cases proceeding to the capital punishment phase, regardless of whether a death sentence was actually imposed. There are seven other South Dakota cases that have proceeded to death penalty deliberations.
The majority opinion promptly proceeds to adopt the State’s argument without any consideration of other murder cases and without any reasoned analysis.
[¶ 221] It seems clear to me that if proportionality review is to be meaningful, as intended by our legislature, the pool of “similar cases” must include at a minimum all reported murder cases. This would present no great difficulty in South Dakota, where the crime of murder is still infrequent, if not uncommon. Generally, we have less than ten reported murder cases per year. Prosecuto-rial discretion and plea bargaining should be factors for consideration, even if not controlling, and the cases disposed of by those *460methods should not be automatically omitted.7 At any rate, to limit the pool of “similar cases” to the seven as the majority does is, in itself, arbitrary and unreasonable.
[¶ 222] It takes no great memory to recall numerous “similar cases” where the facts and the aggravating circumstances were at least as hideous as in Rhines’ case. In fact, the major distinguishing feature in all other cases is that the penalty was life in prison or less, and not death. Consider for a moment, the following cases:
1. State v. Ashker, 412 N.W.2d 97 (S.D.1987).
Lewis Ashker and Curt Novaock were convicted of first-degree murder of the death of Jerry Plihal in Delmont. Plihal had struggled with his attackers and had been stabbed numerous times. Plihal’s guns were missing, but not found by the authorities.
2. Jenner v. Leapley, 521 N.W.2d 422 (S.D.1994).
In 1986, Jackie Sjong was found dead under a bridge near Spearfish, the victim of four bullets fired at close range, from two different weapons. Sjong was “picked up” by Michael Jenner in California and brought to Sturgis for execution because he had “ratted” on a fellow club member. Michael Jenner and Richard Elliott, members of an “outlaw” motorcycle club, were convicted of first-degree murder and each received a life sentence.
3. State v. Braddock, 452 N.W.2d 785 (S.D.1990).
Edward Braddock was convicted of murder and sentenced to life imprisonment for killing Douglas Cramer by shooting him 8 times with an AK-47 assault rifle at the Edgemont city dump. He claimed Cramer owed him money.
4. State v. Rough Surface, 440 N.W.2d 746 (S.D.1989).
Donald Rough Surface received life in prison for murder, rape, robbery and assault of his uncle. The victim’s body was found naked, bloody, badly beaten, and burned in the crawl space beneath a grain elevator in Mobridge. The victim had also been raped and robbed.
5. State v. Bradley, 431 N.W.2d 317 (S.D.1988).
Jamie Thunder Hawk’s body was found in a roadside ditch near Baltic in 1986. Her head had been severed with a knife. There was testimony that she had been abused and tortured over a period of time by Bradley and that on the day of her death, she was kicked, raped and strangled to death. Bradley received life imprisonment.
6. State v. Miller, 429 N.W.2d 26 (S.D.1988).
Todd Miller was convicted of murder, kidnapping, possession of ransom money and forgery for the death of his “friend” Michael Kinney near Aberdeen. He received life sentences.
7. State v. Corder, 460 N.W.2d 733 (S.D.1990).
Ronald Corder and Harvey Ernst each received a life sentence for the brutal beating of Clifford Hirocke near Vermillion.
8. State v. Davi, 504 N.W.2d 844 (S.D.1993).
Scott Davi received life in prison for convictions of murder and rape of his ex-wife, and burglary of her apartment in Sioux Falls. She had been brutally beaten, raped and strangled.
9. State v. Phillips, 489 N.W.2d 613 (S.D.1992).
Darlene Phillips received a life sen-' fence in her conviction of conspiracy to commit murder. After several aborted attempts with poison and fire to kill her ex-husband for whom she was caring, *461she and others smothered him with a pillow in Lemmon.
10. State v. Henjum, 1996 SD 7, 542 N.W.2d 760 (S.D.1996).
Finally, as recently as February 27, 1994, in Mitchell, Lawrence Henjum, shot his friend and roommate, Mark Nelson, in the head with a rifle for no apparent reason. The murder charge was dropped to manslaughter, he pled guilty and received forty-five year's.
[¶ 223] Minimal research discloses approximately 80 reported murder cases since 1978, many of which are as hideous as Rhines’ ease. None of them resulted in a death sentence. None of them are even considered in the majority opinion.
[¶ 224] Even if the pool of similar cases was limited to the seven eases used by the majority, the facts and aggravating circumstances of Rhines are more common than exceptional. Although the specific details vary, the brutality of each killing is similar. In fact, viewed objectively, all of them were hot or cold blooded murders or executions against defenseless victims. The only real distinguishing feature is that all of those murderers received life in prison. Therefore, Rhines’ death sentence is disproportionate and excessive in comparison.
[¶ 225] As stated in the majority opinion: “[A] death sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses in the same jurisdiction.” State v. Marshall, 130 N.J. 109, 613 A.2d 1059, 1070 (1992). To paraphrase, Rhines’ death sentence is comparatively excessive because all other defendants with similar characteristics received sentences other than death for committing factually similar offenses in the same jurisdiction.
[¶ 226] Accordingly, it is pure fiction to say that Rhines’ death sentence is neither excessive nor disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. Therefore, we have no choice but to reverse and remand because, in these circumstances, the law requires that “the court shall sentence such person to life imprisonment.” SDCL 23A-27A-14.
. Consider for a moment the recent "murder for hire” case of Mary K. Ross in Sioux Falls. The man who hired the killing and the two killers received life sentences as a result of pleas despite the fact that she was stabbed numerous times over a substantial period of time. She lived long enough to call the 911 operator to report that she was being killed and that her baby was in the next bedroom.
Several years ago, a young man brutally raped and murdered a nine-year-old Sioux Falls Argus Leader paper girl and received a life sentence.
Under the majority's view, these cases would never be considered in its pool of similar cases.