dissenting.
I cannot agree with that portion of the majority decision which holds that the death penalty may now be properly imposed upon the defendant.
I agree with Justice Cameron that the murder was not heinous and depraved. The remaining aggravating circumstances in this case were that defendant had been convicted of an offense for which life imprisonment or death was imposable, A.R.S. § 13-703(F)(1), and that defendant had been convicted of a felony involving the use or threat of violence, id. (F)(2). Both of these circumstances pertain to the character of the defendant, defining the type of murderer and serving to set the defendant apart and above the “norm” of killers. As we stated in State v. Watson (Watson II), 129 Ariz. 60, 63, 628 P.2d 943, 946 (1981):
[T]he death penalty should be reserved for only the most aggravating of circumstances, circumstances that are so shocking or repugnant that the murder stands out above the norm of first degree murders, cr the background of the defendant sets him apart from the usual murderer.
(Emphasis supplied.) As Justice Cameron correctly states, the crime here does not stand out “above the norm of first degree murders”; thus, the imposition of the death penalty in this case is clearly based upon the character of the defendant.
In Watson II, supra, we held that rehabilitation evidence could and should be considered a mitigating circumstance. Id. at 63-64, 628 P.2d at 946-47. Thus, Watson II stands for the proposition that the relevant question in such cases is not limited to defendant’s character at the time of the offense, but also includes his character at the time the death penalty is to be carried out.
The majority opinion indicates that the evidence of defendant’s improved conduct and character was “very similar” to that presented in Watson II, yet concludes that the mitigation evidence offered by defendant was not sufficiently substantial to call for leniency. While defendant’s prior murder conviction weighs heavily against him, in my view the rehabilitation evidence “very similar” to that presented in Watson II tips the balance strongly in favor of reducing defendant’s sentence to life imprisonment.
At the final sentence hearing, twelve' individuals offered evidence of defendant’s changed character and efforts to rehabilitate himself since his imprisonment in 1974. These witnesses included several members of his family, employees of the Arizona State Prison at Florence, a fellow prisoner on death row, and a local missionary who regularly visited and corresponded with the defendant. The theme which ran through all of the testimony at the sentence hearing was that defendant had changed remarkably since he had arrived at prison six years previously. The witnesses believed that defendant’s attitude had improved materially, that he had found a purpose in life and now had a genuine desire to better himself and, more important, to help others. There seemed to be no question but that this desire to help others was more than subjective; it was actually carried into effect.
There were objective facts to support these opinions. Among the objective factors which manifested the change in defendant were the following: Defendant had transformed himself into a literate person, learning to read and write. He had learned to type. Witnesses testified that defendant often read three books a week and exchanged reading materials with other prisoners. Defendant had employed his new-found ability to read, write and type by using his time in prison in a constructive manner, typing numerous letters to family and friends, and studying the Bible. The *325counselors employed at the prison testified that defendant provided encouragement, advice and spiritual assistance both to his family and to other prisoners.
Defendant’s family noted the difference in his attitude. Defendant had become settled and matured. He was honestly trying to give some meaning to his life. From prison, both in the form of letters and visits from his family, defendant assisted them with their problems, gave them advice and encouraged them. He was truly concerned for his family’s welfare. The same was true for his relationship with other prisoners.
The counselors employed by the prison also testified that defendant’s attempts to better and rehabilitate himself were genuine. Of course, this is a matter of opinion, but it was uncontradicted and, in light of the experience of the prison counselors, I would place great weight on their assessment.
Finally, the defendant himself testified that if given life imprisonment .he understood that he would never live outside prison, because the life sentence would and should be imposed consecutively to the other sentences which he was already serving. Nevertheless, he felt that he had changed and had something worthwhile to offer others in prison society and his family if he were allowed to live. Given the current problems of our prison system, it is certainly necessary that we provide inmates with role models and assistance for rehabilitation, especially when such models are based upon changes in attitude and religious commitment.1 The record available to us thus leads to an overwhelming conclusion that defendant has made a sincere, successful and continued effort to change his character, rehabilitate himself and contribute in his own way to society. As the majority indicates, the trial court could not make a “definitive finding” on the question of rehabilitation. While the majority speculates that the trial court was “not convinced” that defendant’s character had changed, the fact is that the trial court made no such finding. The majority states that the facts “cast sufficient doubt upon appellant’s veracity so the trial court could reasonably decline to find the proffered evidence to be a mitigating factor.” Again, the trial court made no such statement. In any event, the rehabilitation issue does not turn primarily upon defendant’s testimony at all. There were twelve other witnesses, unimpeached and unrebutted on the issue, and the proof of change, rehabilitation and contribution to society stands uncontested in this case. Nor is this change some desperate, last-minute attempt by defendant to avoid the death penalty. The testimony indicated that the change in defendant’s attitude and character manifested itself long before 1981 when Watson II first established that such a change was relevant in deciding whether to impose death.
Thus, the majority’s conclusion on independent review that the trial court could have found defendant’s changed character was not genuine, and therefore “could reasonably decline to find the proffered evidence to be a mitigating factor” is incorrect for two reasons. First, the trial court made no such finding. Second, there are no facts to support such a finding, even if it had been made. The State advances no such facts in this court, though it does not admit the change in character is genuine. Of *326course, it is the State’s obligation to examine any purported change in character with a deservedly cynical eye. I, too, agree that it would be better if felons found God before committing their crimes rather than before being punished. It is the court’s obligation, however, to recognize the possibility and principle of redemption and rehabilitation.
Further, independent review on the death penalty issue involves more than a determination of whether the trial court’s imposition of this penalty can be supported by the record. It requires our own, independent conclusion from the record. Watson II, 129 Ariz. at 63, 628 P.2d at 946. While the aggravating circumstances which were found to exist may indicate that the defendant was above the norm of murderers, the evidence of changed character is persuasive mitigation. Review of this record indicates strong evidence of rehabilitation and the probability that if allowed to live, defendant will make a contribution of some value to society. Then what is to be gained by imposing death under these circumstances? Except in the physical sense, the defendant whom we today consign to the gas chamber is not the same person who committed the crime in 1973 and was first sentenced to death in 1974. While the passage of time should not be the test, we must acknowledge that in the ten years which it has taken to reach this point, the defendant has been given time to change. Perhaps those ten years should not have been allowed to pass, but we must remember that the statutes under which the defendant was previously sentenced to death were declared unconstitutional, State v. Watson (Watson I), 120 Ariz. 441, 586 P.2d 1253 (1978), and, as a result, defendant has been given time which he has put to good use. While quick punishment may deter, punishment of this defendant at this time serves only to illustrate that redemption and rehabilitation have no practical purpose.
Speedy imposition of the ultimate penalty might also have served the societal interest in retribution. See Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929-30, 49 L.Ed.2d 859 (1976). But, again, the imposition of death upon a defendant who has changed so remarkably serves no valid purpose as far as retribution is concerned, because we now visit society’s retribution upon a different person. Nor is society protected by imposition of the death penalty since reduction to life imprisonment would ensure that this defendant would not become eligible for parole during his lifetime. By putting this defendant to death in the face of his efforts to change and the reasonable prospect that if allowed to live he will be of value to society, we accomplish nothing but revenge. To some, especially those in the heat of anger, this may seem a sufficient reason to kill. The law should not be swayed by such emotions; it does not and cannot kill in anger; it rejects the concept of an eye for an eye and a tooth for a tooth.
The totality of the evidence offered in mitigation establishes sufficient grounds for this court to reduce defendant’s sentence to life imprisonment without possibility of parole for 25 years, to be served consecutively to all other sentences. Accordingly, I dissent from the portion of the opinion which, on independent review, affirms the imposition of the death sentence.
. The conclusion that because of his change in character the defendant would serve as a useful role model for other prisoners is more than mere speculation. The May, 1983 issue of La Roca, a magazine published by and for prisoners at the Arizona State Prison, contains an article on defendant written by Charles Doss, a prisoner who serves as editor of the magazine. In an article commencing at page 19, entitled “Death Row Revisited,” Mr. Doss writes of defendant’s attitude and actions when he first came to death row ten years earlier and the remarkable change which has taken place with the passage of years. The article illustrates that both inside and outside the walls of the state prison a man’s life and behavior may set an example which serves as a standard for others. The article is not part of the record, but the statute provides that mitigating evidence may be considered regardless of admissibility under the rules of evidence and may consist of “any factors” relevant to defendant’s character. A.R.S. § 13-703(C) and (G).