specially concurring in part.
I agree that defendant’s convictions and sentences should be affirmed. I do not, however, join in the proportionality analysis conducted by the majority. I continue to believe that proportionality reviews by this court are inappropriate for the reasons set forth in the concurring opinions in State v. White, 168 Ariz. 500, 815 P.2d 869 (1991).
In rejecting defendant’s claim that the trial court should have conducted a proportionality review, the majority correctly holds that “[t]he trial court’s consideration of other similarly situated defendants is irrelevant to this defendant’s ‘character or record,’ and does not show any of the circumstances surrounding this defendant’s ‘offense’ that would call for a sentence less than death.” (Emphasis in original.) At 171, 823 P.2d at 38. The same considerations of irrelevancy that led the majority to reject proportionality reviews by trial courts apply with at least equal force to proportionality reviews by this court.
The Arizona death penalty statutes, carefully crafted to meet constitutional requirements, do not envision judicially-created proportionality reviews. The record in this case demonstrates the “slippery slope” toward which the majority inches by persisting in conducting such reviews. Defendant sought to introduce evidence in the trial court concerning several other murder cases which he contended were factually similar to his case and which resulted in life sentences. Defendant also requested the trial court to examine all first degree murder cases in Arizona since 1980 when conducting the proportionality review.
If meaningful proportionality reviews are to be conducted with the parties’ participation, it seems obvious that the courts in such cases will soon be litigating not one murder case, but scores or, indeed, hundreds of murder cases in every potential capital case. One may also reasonably predict that when a defendant under a death sentence at last exhausts his other remedies and nears an execution date, he will seek an updated proportionality review to include capital cases which have accrued during the years since his own death sentence was imposed. The majority’s insistence on proportionality reviews, if carried to its logical conclusion, will inevitably result in all death penalty cases becoming so bogged down that it will be virtually impossible to conclude any of them. Our experience with seemingly interminable death penalty litigation should cause us to refrain from gratuitously adding yet another obstacle to finality.
I realize that, to date, the court has conducted its proportionality reviews without evidentiary input from the parties, a seeming anomaly not yet addressed by this court or, so far as I know, by any other court. Because proportionality reviews are unnecessary in the first instance, arguably the majority may continue to exclude the parties from such reviews and conduct them as it sees fit. In my view, however, prudence suggests that we abandon the practice.