concurring and dissenting.
This court has wisely held that adherence to the statutory. and procedural scheme in the death sentencing statute provides a main protection against the arbitrary or capricious imposition of the death penalty. Williams v. State (1982), Ind., 430 N.E.2d 759. While the trial court labored well in applying the statute, the final result is colored by two defects. The first is the failure of the evidence to prove the aggravating circumstance of murder by lying in wait in both cases, and the second is the lack of a written form of notice in the record that the first murder of D.R. would be considered an aggravating circumstance in sentencing for the later murder of J.L.
A murder by lying in wait is a murder by ambush. It is a killing while launching a forceful attack from concealment upon an unsuspecting victim. Here, appellant confronted D.R., before employing force, and did not launch his attack upon J.L. from concealment. This is not murder by ambush.
The trial court imposed death for the murder of J.L., on the basis of the prior murder of D.R., even though there was no writing in the record evidencing the intent *902of the prosecution to utilize that prior murder as an aggravating circumstance. In Brewer v. State (1981), 275 Ind. 338, 417 N.E.2d 889, this court sanctioned the death sentence where a second count for murder alleged the distinctive elements of an aggravating circumstance and was marked with a citation to the death sentence statute. The intent to prove that aggravating circumstance was clear on the face of the pleadings. Here, the pleadings do not have this distinctive character. Brewer does not sanction the sua sponte determination of uncharged aggravating circumstances that may be shown by the evidence in the death hearing, and I regard a determination of that character to be clear error.
I concur with the majority, wherein it concludes that there was sufficient evidence to warrant the determination of the trial court to a moral certainty beyond a reasonable doubt of the aggravating circumstance that appellant killed both D.R. and J.L. while committing a requisite felony. The pleadings adequately reflected the intent to seek the death penalty upon the basis of this aggravating circumstance as required by the death statute.
In light of the view I take of this case, the next question to present itself is whether, in light of the above departures from the statute, to permit the death sentence in each case to stand upon the sole remaining aggravating circumstance, or to require a fresh determination of the sentence. On the one hand, the trial judge appears to say that in evaluating the relative weight of mitigating and aggravating circumstances he weighed each individual aggravating circumstance against the mitigating circumstances and concluded that each alone outweighed all mitigating circumstances. It could be persuasively argued that this process was benign and sufficient. On the other hand, that process is outside the statutory scheme. The statute requires the enumerated aggravating circumstances to be weighed together. The statute thus implicitly requires a resentencing where one of several aggravating circumstances is set aside on review, since the relative weight of the remaining aggravating cireumstanc-es or circumstance as against mitigating circumstances could not be known. Beyond the statutory contemplation of the weighing process, the process employed by the trial court was conducted under an assumed set of circumstances and an assumed duty, and without the knowledge of this court's views of the legal problems involved. This element of artificiality detracts from the confidence one might have in the results of the trial court's tests.
There is another irregularity in the court's written findings which further erode the confidence which one might repose in the conduct of the final weighing process. 1.0. § 85-50-2-9(g) provides:
"If the hearing is to the court alone, the court shall sentence the defendant to death only if it finds:
(1) that the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances exists; and
(2) that any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances." (emphasis added)
In writing the death sentence order, more fully set out in the majority opinion, the trial court in describing the process that he went through in conducting the final weighing process required by the above provision, stated that, "... the aggravating circumstances overwhelmingly outweigh any mitigating evidence presented", and "... That the mitigating evidence presented to the court is outweighed by any one aggravating circumstance hereinabove enumerated and further that the aggravating circumstances jointly overwhelmingly outweigh any mitigating evidence presented." At this final weighing stage evidence has no weight whatever. Only circumstances, involving historic fact adjudged by the court to have existed, can have mitigating value. While I believe, based upon the order as a whole, that the trial judge is well aware of the distinction between evidence on the one hand and circumstance or fact on the other, I am uncertain whether or not *903at this critical juncture, the use of the term "evidence" was a simple slip, or was accurate. Based upon these apparent departures from the required statutory procedures, I can only conclude that the benefits of remand for resentencing clearly outweigh the costs in all categories of remand, and therefore vote for remand and resen-tencing for both homicides.