dissenting in part; concurring in part.
The opinion for the Court which has been authored by Justice Donaldson is neatly compartmented into nine issues. To facilitate my independent examination of those issues and the independent review which will be made by the trial bench and bar, I have prepared the following table of contents, following the Court’s listing of the issues as I through IX:
I Windsor was not coerced into giving a confession. Based on the totality of the circumstances, there is sufficient evidence introduced which reveals that Windsor’s confession was voluntarily made. It is therefore admissible, pp. 1186-1187.
IIThe district court did not abuse its discretion in denying Windsor’s motion for a change of venue, pp. 1187-1188.
III The district court did not abuse its discretion in allowing the testimony of a doctor concerning the manner in which tape was affixed to the victim’s mouth. The district court also did not abuse its discretion in allowing the introduction of photographs of the victim’s body, p. 1188.
IV There was no fatal variance between that with which Windsor was charged and that for which she was tried. Allegations in the information were sufficient to permit the jury to be instructed on a felony murder theory, pp. 1188-1190.
V The jury was properly instructed on felony murder. Windsor’s requested instruction was erroneous and the district court acted properly in refusing to use it. p. 1190.
VIJudge-imposed death penalty sentencing scheme in Idaho is constitutional. p. 1190.
*424VIIDeath penalty was not given unconstitutionally so far as United States Supreme Court decision of Enmund v. Florida is concerned— jury found that Windsor participated in burglary with specific intent to bring about the death of the victim, pp. 1190-1192.
VIIIWindsor’s allegation that the death penalty was imposed as a result of prosecutorial misconduct is not supported by the record. Windsor’s allegations here are more properly made in a post-conviction hearing, p. 1192.
IXThe death penalty imposed in this case was excessive and disproportionate. Death penalty is set aside and case remanded for re-sentencing. pp. 1192-1195.
Those issues will be addressed in the order of their relative importance, which appears to be IX, VI, IV, VII, VIII, V, III, I, and II.
IX and VI
Because these two issues, are to some extent intertwined, they are readily considered together. I am in agreement with the Court’s judgment to set aside the death penalty, but not for the reasons which those who comprise the majority have advanced. Had the jury been the sentencer in this case, as is constitutionally mandated by our Idaho Constitution, my vote would be to affirm, assuming an error-free trial on the guilt issue. Otherwise put, I do not subscribe to the view that the death penalty was excessive and disproportionate.1 In addition to the footnote discussion, the track record in Idaho on proportionality of death penalty impositions by district judges is not impressive — even by the same district judge in regard to different and unrelated first degree murder convictions. One example is that of the Wilson brothers, Kelly and David, who were convicted of the murder of a Canyon County grocery owner in December of 1981. State v. David Wilson, 107 Idaho 506, 690 P.2d 1338 (1984); State v. Kelly Wilson, 107 Idaho 510, 690 P.2d 1342 (1984).
Another case which comes to mind, also from Canyon County, is State v. Majors, 105 Idaho 4, 665 P.2d 703 (1983), where on a conviction of first degree murder, a brutal stabbing on a par with the facts of this case,2 the death penalty was not imposed. In another case from North Idaho, however, the judge there sentenced to death a defendant who was charged with neither first degree murder nor felony murder, but rather murder by torture, and the three members of this Court who prefer judge sentencing to jury sentencing in death penalty cases had little trouble in affirming. Stuart, supra.
Here, although the charge against Windsor was not murder by torture, it was in the eyes of the sentencing judge that kind of a murder. The judge set his beliefs in writing — as is statutorily required:
4) The defendant did not inflict the actual knife wounds which directly caused the demise of Mr. Grammer. However, the record is clear that the defendants intended to take whatever action was necessary to secure from the victim the property they wanted. This *425defendant was present and assisted the co-defendant in keeping the victim subdued and quiet when the knife wounds were inflicted. The defendant also admitted that she was instrumental in planning and preparing for the burglary and theft. It is clear from the evidence that both those crimes could have been accomplished long before the victim returned home, yet both defendants lay in wait for Mr. Grammer’s return. The only reasonable construction of the evidence thereafter is that the defendants hit the victim on the head, robbed him of his modest personal belongings, bound and gagged him, and later eliminated him as the only eyewitness to their actions. While this defendant did not wield the knife, in light of her other acts of complicity, this finding is a difference without a distinction. R., Vol. II, pp. 0315-1316.
The foregoing statement by the judge is part of his sentencing rationale under FACTS AND ARGUMENTS FOUND IN POSSIBLE MITIGATION. Findings of the Court in aggravation included these:
1) The crime was totally senseless and void of any compassion or feeling for one’s fellow man. The victim had taken the defendants into his home, had fed them and had given them a place to sleep. They knew he was a man of humble means, but one who cherished his home and the few personal belongings he had.
2) The killing was exceptionally brutal and the conduct of a depraved mind. There is no rational explanation for the blow to the back of the victim’s head other than that he was hit by the defendants so that they could carry out their plan. His hands and feet were then bound with duct tape so that he was rendered helpless, and then this defendant proceeded to place the tape over his eyes, mouth and nose. Dr. Donndelinger testified that the tape was sealed in such a manner that the victim would have suffocated eventually but for the knife wounds (See State’s Exhibit No. 35 for verification).
3) The callousness with which the body was disposed of in the river confirms the defendant’s utter disregard for morality, decency, or feeling for a person’s loved ones. The defendant professes to love children, yet she willingly participated in taking the life of a four-year-old boy’s father even after she had observed how close the father and son were.
4) There is no evidence that the defendant’s mind was under the influence or effect of alcohol and/or drugs at the time of the killing.
5) The planning for the commission of the crime continued over a two to three day period. Zeke Pálacios was contacted as a “fence” for the property as early as two days prior to the commission of the crimes. Also, both defendants discussed their plans at length while they were in the schoolyard adjacent to the victim’s home, and then the defendants waited in the victim’s home for several hours for Mr. Grammer to return to complete the same.
Defendant’s contention that the victim agreed to go along with the appearance of a robbery is inconsistent with the evidence, defies common sense and is a gross distortion of the facts. The defendants had entered the victim’s home without his consent through a window, had ransacked one of his rooms and left the same covered with broken glass, unless the same was done as a result of a struggle between the defendants and the victim, sought the victim’s diamond rings and other personal property which they knew had particular sentimental value to him, kept him from work when his whole work history shows him to have been a reliable and conscientious worker. To believe that he would have voluntarily agreed to let these defendants have his car or pickup when he would not even let his wife drive the same is an exercise in futility. Mr. Grammer was so particular about his home and his belongings that on the night the defendants stayed with him, he nevertheless got them up at 5:30 A.M. and asked them to leave so he could padlock his residence. It is inconceivable to the Court *426that such a person would agree to a feigned burglary or robbery.
6) The record is void of any remorse by either defendant at or near the time of the killing. The blow to the head, the taping of the face, the binding of the hands and feet, the killing, the manner in which the body was discarded and the selling of the property even after shock would normally have set in vividly describe the true feelings and attitude towards the value and sanctity of life possessed by these defendants.
7) There is no evidence that the victim provoked the incident. On the contrary, the victim was described as a hard-working, peaceful and quiet individual, and the record indicates that his relationship with the defendant was marked by his kindness.
8) The defendant was the “brain” behind the scheme or plan and was the motivating force which set in motion the chain of events which led to the cruel and savage murder of Mr. Grammer. The defendant’s motive was allegedly to get a new start in life and to avoid what she believed were outstanding warrants for the arrest of herself and/or the co-defendant.
9) The murder effectively silenced the only eyewitness to the crime and the one person who could have identified the defendants.
10) The defendant, though unemployed and without a means of support, was not destitute, as she has claimed, inasmuch as her own family lived in this area and had offered to' take her in just prior to the perpetration of this crime and, according to the testimony of her mother, would have taken her in at any time.
11) The defendant has over the years repeatedly chosen to associate with undesirable companions and has frequently cohabited with men who were in trouble with the law. Even now, despite all the tragedy and heartache involving Mr. Grammer’s death, and the violence with which it was brought about, the defendant still desires to marry Mr. Fetterly and to be with him (See letters to the Court in the file).
12)The evidence clearly establishes beyond a reasonable doubt that the murder was committed in the perpetration of a burglary, and that it was accomplished with the specific intent to cause the death of Sterling Grammer.
STATUTORY AGGRAVATING CIRCUMSTANCES FOUND UNDER SECTION 19-2515(f), IDAHO CODE
The Court finds the following aggravating circumstances existed beyond a reasonable doubt:
(1) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity (No. 5).
(2) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life (No. 6).
(3) The murder was one defined as murder of the first degree by Section 18-4003, Idaho Code, and was accompanied with the specific intent to cause the death of a human being (No. 7).
The Legislature, on behalf of the people of the State of Idaho, has determined that a murder committed in the commission of certain enumerated crimes is so offensive to society that it will necessarily be murder of the first degree if there was the specific intent to cause the death of a human being. Premeditation and deliberation are implied by law in a murder committed under such circumstances, so defense counsel’s argument that this jury did not find the elements of premeditation and deliberation on the part of this defendant since they did not sign the verdict form providing for the same is without merit. The jury may well have determined that a conviction for murder in the perpetration of a burglary was the more appropriate verdict since it was undisputed that this defendant did not actually inflict the fatal knife wounds. The Court’s instructions did require, however, a finding of malice aforethought and the necessary criminal intent.
FINAL CONCLUSIONS
Having fully considered the record, and having duly deliberated the nature of the *427crime and the Court’s responsibility to the defendant and to society, the Court finds that the defendant actively participated in the brutal and savage slaying of a man who was her friend. The intentional killing took from the victim what an offender can never restore — the fragile gift of life.
The defendant’s actions were the final betrayal of another human being and embodied the ultimate affront to society.
The Court concludes that the mitigating circumstances do not outweigh the gravity of the aggravating circumstances so as to make unjust the imposition of the death penalty.
The will of the people set forth in Section 19-2515, Idaho Code, requests that this be done, and with this will the Court in its discretion concurs.
Finally, any lesser punishment under the facts of this case than that imposed upon the co-defendant, Mr. Fetterly, when it has been established beyond a reasonable doubt that the killing was committed by both defendants for a base, anti-social purpose with wanton disregard for human life, would not only be disproportionate to the crime, but would be a disparity that could not be rationally reconciled.
No legal cause or reason to the contrary has been shown, and it is the judgment of this Court that the death penalty should be imposed on the defendant for the capital offense of which she was convicted.
IT IS, THEREFORE, ADJUDGED that the defendant is guilty of First Degree Murder in the perpetration of, or attempt to perpetrate, a burglary, by verdict of a jury, and that she should be punished by the imposition of the death penalty by the Idaho State Board of Correction in a manner prescribed by law on May 4, 1984. R., Yol. 6, pp. 0317-24.
From the foregoing there is one passage which is deserving of additional comment and that passage follows the judge’s conclusion that he found on balancing nothing to “make unjust the imposition of the death penalty.” That passage is: “The will of the people set forth in Section 19-2515, Idaho Code, requests that this be done, and with this will the Court in its discretion concurs.” R., Vol. II, p. 0323 (emphasis added). When the judge stated a few sentences earlier that he had fully considered and duly deliberated the nature of the crime and his responsibility to the defendant and to society, there will be no one who will doubt that he was saying for himself all other district judges two things: (1) that under the present state of the law, to be the sole person who will make the decision of whether a defendant will live or die is an agonizing experience as much as unlike any other decision that a judge ever has to make as is to the defendant the difference between dying and living. A trial judge has open to him only the alternative of fulfilling his duty as the legislature has prescribed it for him, or to decline to do so on the basis that his own legal mind is in good conscience convinced that three members of this Court are in error in their explanation as to why the present legislative scheme is not unconstitutional. No district judge has as yet deigned to so confront the majority — yet not one judge has yet voiced any support for the two theories advanced by the majority of three who see no problem.
Such being the state of affairs, the trial judge responded to the mandate of the legislative scheme, performed the weighing and balancing act required of him, exercised judicial discretion vested in him by the legislature, and imposed the death sentence — only to learn today his agonizing over the sentence was a needless exercise in futility. The judge learns instead of a new doctrine, that of “paramount exercise of discretion” — today by the Supreme Court of Idaho vested in itself. History will note that the majority opinion points to no error in the trial judge’s determination that the facts and the law required of his discretion that the death penalty be imposed. To reach its result the majority on the face of its opinion as weighed against the trial judge’s § 19-2515 findings is obviously guilty of exercising that discretion which the trial judge in this case thought *428was not only within his exclusive province, but awesome responsibility as well.
What we have, then, is a Supreme Court which (by a 3-2 majority) has declared constitutional a legislative sentencing scheme which foists off onto the district judges the agonizing burden of making the decision between life and death — a function which in pre-Woodson3 days had always been within the province of the jury, and at the same time a Supreme Court which does not hesitate to substitute its own discretion for that of the judge. To set aside a death sentence and “remand for resentencing in accordance with the views expressed herein, ” which views preclude the reimposition of the death sentence, cannot be said to be an agonizing experience.
The majority makes much of Windsor’s childhood and her background in general. All of these factors were first considered by the trial judge. The fact remains that, just as the judge observed, two people, Windsor and Fetterly, set out together on this crime spree which culminated in the death of their selected victim. This is not an Enmund4 situation — not even a distant cousin of Enmund. In that regard, the majority opinion is internally inconsistent. Of a necessity to reach the desired result it has created new law in Idaho — that where death of another is attempted by two people in more than one way, he or she who was less successful must yield the hangman’s noose to the one to whom must go the honor of inflicting the blow or wound which gains the medical credit for producing the victim’s expiration.
Returning to the passage above taken from the trial judge’s § 19-2515 findings, where he recited that the “will of the people set forth in Section 19-2515” placed upon him the sentencing of Windsor, is it indeed the will of the people? Or is it perhaps a temporary abberation brought on by the interference of the Supreme Court of the United States in capital sentencing, beginning with Furman, which case short years later was said by the High court to have been misunderstood and misapplied by the various state legislatures and supreme courts. In State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983) cert. denied 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722, it was thought by some that Justice Huntley and myself had made it reasonably clear that the office of the attorney general, in response to its views of what the High Court was mandating, that drafted the legislation and presented it to the legislature. The office of the attorney general, so as we heard from its solicitor general, did not draft that legislation pursuant to the will of the people, and has never pretended that it did so. That the legislature passed the legislation conveys only one conclusion, and it is not that those legislators were acting under any influence other than that the office of the attorney general who was advising the legislators that passage of the new sentencing scheme was required to conform to the views which the office of the attorney general then entertained as to what the High Court had said. As often as the High court vacillated, the office of the attorney general had to respond. And sought and obtained the requisite vote from the legislature. In the year 1977, and following Woodson, supra, jury sentencing fell by the wayside in favor of what we now have. Would Idaho’s former scheme of jury sentencing today be invalidated by the High Court? Not at all. Idaho is only one out of three states in the fifty where the jury is not involved. What we learn is that that which well served the people, the trial bar, and the trial bench for over a century went down the drain because the office of the attorney general in undoubted good’faith brought about what it perceived as a change mandated by the High Court.5
When Justice Huntley, by reason of his own knowledge of constitutional law, sug*429gested in Creech the invalidity of non-jury sentencing, the only response which he gained from the majority of three was this single and singularly remarkable paragraph:
Appellant next asserts that Idaho’s death penalty provisions are unconstitutional, in that jury participation is not required in the sentencing decision, but rather the discretion to impose a death sentence is vested in a judge. At other places or at other times, juries have been given an integral role in imposing the death sentence. However, we hold that jury participation in the sentencing process is not constitutionally required. Creech, supra, 105 Idaho at 372-73, 670 P.2d at 473-74.
Apparently conceding the dismal inadequacy of that response to the documented authority and history of both of the Creech dissents, in State v. Sivak, 105 Idaho 900, 903-04, 674 P.2d 396, 399-400 (1983) cert. denied — U.S. -, 104 S.Ct. 3591, 82 L.Ed.2d 887 the majority offered this:
Under the scheme that existed at the time of the adoption of the Idaho Constitution, the jury determined whether a person was guilty of first or second degree murder. Once the degree of crime was determined, the jury’s factfinding function was completed. It is certainly true that the jury’s decision had an impact on the sentence which was imposed. Thus, if the jury determined that the defendant was guilty of only the crime of second degree murder, no death penalty could be imposed. However, that is only an incidental consequence which is true in every case where a jury finds a defendant guilty of a lesser included offense from that with which the defendant is charged. Thus, if a defendant is charged with first degree burglary, and the jury finds him guilty of second degree burglary or perhaps petit larceny, the jury’s determination will have a substantial impact upon the sentence which is imposed upon the defendant. However, that does not mean that under our Constitution a defendant is entitled to have a jury impose the sentence. While the jury’s determination of the crime of which the defendant was guilty affects the sentence which may necessarily be imposed, that incidental effect does not mean that the jury is an integral part of the sentencing process. The argument that is made that R.S. § 65673, in effect in 1889 when the Idaho Constitution was adopted, constitutionalized a right to be sentenced by a jury in capital cases, basically misconstrues the distinction between the factfinding function of determining the degree of crime of which the defendant is guilty performed by the jury, and the sentencing function which is to be performed by the court. Accordingly, we conclude that Art. 1, § 7, of the Idaho Constitution does not require the participation of a jury in the sentencing process in a capital case.
This reasoning was not only inept, but inapplicable, as was well pointed out:
In State v. Creech, 105 Idaho 362, 670 P.2d 463 ..., I expressed a strong concern with a majority opinion which refused to discuss the view of Justice Huntley who in dissent pointed out that our Idaho Constitution güarantees that no person shall be executed except on direction of a jury. In today’s opinion the same majority, now deigning to discuss that that issue, and completely ignoring that written by Justice Huntley and by myself in Creech, rationalizes around the research which we there presented by noting the absurdity that it was the judge who was the sentencer where the jury convicted an accused of second degree murder — but at the same time facetiously conceding “that the jury’s decision had an impact on the sentence which was imposed.” This is pure sophistry at its best. The jury, if it convicted the accused of first degree murder thereby sent the accused to the gallows. That is an impact indeed. As stated in my Creech dissent:
“In People v. Walters, 1 Idaho 271 (1869), the defendant was charged with murder in the first degree. The jury, knowing that a first degree convic*430tion required execution, recommended the mercy of the court.
“ ‘We the jurors in the above entitled cause find the Deft guilty as charged in the Indictment and recommend him to the mercy of the court.
L. Jackson
Foreman of Jury’ ”
It cannot in good conscience be argued that from 1869 until Furman it was not the jury which made the life or death decision. Any lingering doubt as to the intention of the legislature should be dispelled by simply observing that following the 1911 Amendment to I.C. § 18-4004 the courts of Idaho, including this Supreme Court, continued to acknowledge the jury’s function as sentencer, as was carefully documented in my dissenting opinion in Creech wherein were set forth verbatim the jury verdicts in [State v.] Hoagland [39 Idaho 405, 228 P. 314 (1924) ], [State v.] Reding, [52 Idaho 260, 13 P.2d 253 (1932)], [State v. VanVlack, [57 Idaho 316, 65 P.2d 736 (1936) ], [State v.] Golden, [67 Idaho 497, 186 P.2d 485 (1947)], Owen, Clokey, [State v.] Gonzales [92 Idaho 152, 438 P.2d 897 (1968) ], and Buckley — which latter was the last first degree murder to be reviewed in this Court under the law as it existed prior to Furman’s advent.
Regrettably one must conclude that the author of today’s opinion for the Court has yet to read my Creech dissent. Nothing in today’s majority opinion supports its bald conclusion “that Art. 1, section 7, of the Idaho Constitution does not require the participation of a jury in the sentencing process in a capital case.” The best that can be said for the majority opinion is that it does recognize that where the jury convicts of second degree murder, “no death penalty could be imposed,” but this is said to be an incidental effect. Some may consider it a deplorable state of affairs that in a matter of such grave moment the majority does not even attempt to comment upon the proceedings of the Constitutional Convention and the remarks of Mr. Heyburn, Mr. Claggett, and Mr. Ainslie in the drafting of Art. 1, section 7 — which was thereafter adopted by the people. Instead the majority digresses into the wholly irrelevant field of the judge’s discretion where the jury’s verdict was to convict of murder in the second degree.
With equal facility the majority facilely avoids discussing the teaching of State v. Miles, 43 Idaho 46, 248 P. 442 (1926), or attempting to explain away the words and wisdom of Justice Ailshie in In re Prout, 12 Idaho 494, 86 P. 275 (1906). Instead the majority opinion speaks of the sentencing discretion in, of all things, burglary cases. It gives us the remarkable pronouncement that the jury’s determination of whether the defendant is guilty of first or second degree murder, or perhaps the include offense of petit larceny, “will have a substantial impact upon the sentence ...,” and that such “does not mean that under our Constitution a defendant is entitled to have a jury impose the sentence.” No one has ever contended that it did in other than murder cases; the statement of the majority only serves to show no knowledge of the documentation of the Creech dissenting opinions, at the best, or, at the worst, a complete disregard for the irrefutable teaching of that documentation. In an ordinary case this would be thought regrettable. In a case where we review the imposition of a death sentence, it may well be regarded as unpardonable. Sivak, supra, 105 Idaho at 908-10, 674 P.2d at 404-06 (footnote omitted).
IV.
There is more to this issue than has met the eye — of the majority. Windsor was charged with first degree murder, and she went to trial on a charge of first degree murder. This was not unusual, because this was also the exact nature of the complaint against her and Donald Fetterly, as defendants, not only filed by the prosecuting attorney himself, but also signed by him. This was on September 12,1983. On that same date Judge Broadman in magistrate court proceedings read the complaint *431to both defendants, advising them that the maximum penalty was death. The public defender, already appointed for both defendants in another case against the same two, was appointed for this case, a preliminary hearing was requested, and a date set for it. R., Vol. 5, p. 8. The hearing took place as scheduled, against both defendants. The court minutes state with respect to the complaint’s charge of murder that:
The Court, after considering the testimony and evidence presented, found that the State had established probable cause to believe that a public offense had been committed and probable cause to believe that each of the defendants did commit the offense as charged in count one, first degree murder....
The Court Ordered the defendants bound over to District Court to answer to the charges. R., Vol. 5, p. 10.
And on the same day an order was entered by Judge Swafford, who presided at the preliminary hearing, holding the defendant to answer on both the murder charge and the grand larcency charge — with which we are not concerned. Two weeks after filing the information charging Fetterly and Windsor with premeditated first degree murder, and with a separate count for robbery, the prosecutor filed an amended information. This information, too, continued the charge of premeditated first degree murder, Count I, but the prosecutor apparently saw a need to add a court of burglary, and separately, an enhancement count predicated on use of a deadly weapon — the knife.
Thus, it is seen that felony murder was never charged in the complaint or in the information. Moreover, and critically, the defendants Fetterly and Windsor were not by the magistrate held to answer at trial in district court on a charge of felony murder. For that reason Windsor is correct in her assertion that the jury should not have been given a verdict which allowed the jury to find her guilty of felony murder — a crime with which she had not been charged. Quite the contrary, the prosector had made the election to charge her (and Fetterly) with premeditated first degree murder — notwithstanding that he was clearly at liberty to have charged her with felony murder as well.
She was properly held to answer for the crime of premeditated first degree murder — the charge leveled against her in the prosecutor’s criminal complaint, and the charge which was pursued at the preliminary hearing.
Article 1, § 8 of the Idaho Constitution specifically provides:
No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on an information of the public prosecutor, after a commitment by a magistrate....
There is in Part IV of the majority opinion a discussion of variances and fatal variances, and there is mention made of two federal prosecutions which reached the Supreme Court of the United States, Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), and Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Whatever the rule may be in federal court, Windsor was tried in state court, and entitled to all of the guarantees of the Idaho Constitution — some of which have no counterpart in the federal constitution. Whether the majority accidentally or purposefully avoids the issue raised by our Idaho Constitution is interesting speculation. The fact is that issue has been adroitly finessed, and this is an intolerable state of affairs.
The Idaho Constitution allows the trial of any person on a prosecutor’s' information only “after a commitment by a magis-trate_” Id. Const, art. 1, § 8. Here there had been no preliminary hearing on the charge of felony murder. And, if the Constitution was not authority enough, the legislature, which is the voice of the people, has also ruled in I.C. § 19-1420 that “[a]n information or indictment cannot be amended so as to charge an offense other than that for which the defendant has been held to answer.” Neither the legislature nor the Framers of the Constitution were will*432ing to concede that mere expediency should prevail as against the constitutional and statutory provisions. Even the Court’s own rule, I.C.R. 7(e) (formerly I.C.R. 7(d)), does not purport to alter the substance of the Constitution or the statutory enactment. Nine short years ago a unanimous Court, which included Justices Bakes, Donaldson and Shepard, but not myself or Justice Huntley, wrote:
We are constrained to dispose of the instant action on the following ground. It has been held that the district court lacks jurisdiction to try any person for an offense by information absent compliance with the statutes regarding preliminary examinations. Idaho Constitution art. I § 8; I.C. § 19-804; State v. Braithwaite, 3 Idaho 119, 27 P. 731 (1891); State v. West, 20 Idaho 387, 118 P. 773 (1911). State v. Ruddell, 97 Idaho 436, 439, 546 P.2d 391, 394 (1976).
In the ensuing nine years, none of those cited bases have been overruled; nor in good conscience could they be overruled. In State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909), Justice Ailshie, who also authored State v. West, 20 Idaho 387, 118 P. 773 (1911), wherein McGreevey was followed, wrote:
Yaner v. People, 34 Mich. 286, was a case identical in its facts with reference to preliminary examination, commitment, and information, with the case at bar. The court speaking of the examination said:
“And it is only when it shall appear from such examination that an offense not cognizable by a justice of the peace has been committed, and that there is a probable cause to believe the prisoner guilty thereof, that he can be held for trial. (Comp. Laws 1871, secs. 7859 7860.) The clear evident intent of this statute was that the magistrate should exercise his best judgment in the matter; that he should from the testimony determine whether the crime charged in the warrant had been committed; or where, as in this case, the offense charged includes one or more of lesser degree, the magistrate should determine which offense, if any, had been committed, so that the accused might not be placed upon trial in the circuit to answer to a charge different or greater than the one on which he had been examined, and to answer which he had been held for trial. If this were not so, we should have the magistrate binding over for one offense, and the prosecuting attorney filing an information for another and different one; or the magistrate binding over to answer to an offense of one degree, and the prosecuting attorney filing an information for a like offense of a higher degree.” McGreevey, supra, 17 Idaho at 459-60, 105 P. at 1053-54.
To which could be added apropos to what transpired here: “or we should have the magistrate binding over for premeditated first degree murder, the prosecuting attorney filing an information on that charge, and the district court allowing the jury to consider both whether the defendant was guilty of premeditated murder, and if not, whether the defendant was guilty of felony murder.” Those interested readers who may now peruse the two cases cited in Ruddell will find the most comprehensive discussion of the Constitution and the statute in McGreevey.
The question before this body is not whether there was a fatal variance as viewed under federal law in a federal prosecution, but a question of district court jurisdiction — which as I understand it is never waived.
VII.
In Part VI I suggested that this was not an Enmund type of case. Here we have no driver of a get-away car — completely detached from the scene of a murder-in-progress scene. Hence, I see no necessity for the majority’s considerable exertion in reaching the conclusion that “there is no merit to Windsor’s contention that the imposition of the death penalty was constitutionally impermissible under the mandate of Enmund.
*433The trial court’s instruction making a murderous intent an integral factor in felony murder was obviously erroneous. I do not see, however, that on this record such error can properly be assessed to Windsor.
VIII.
While it is the unanimous judgment of all five of us that the death penalty here imposed must be set aside, with directions for resentencing in accordance with the views of the majority as expressed in the opinion delivered by Chief Justice Donaldson, it seems to me that Windsor has a perfectly valid issue here which has to be addressed. The prosecutor’s memorandum in the record, Vol. 8, p. 13, shows that it was dated March 23, 1984. It was filed (so marked at first) in the Clerk’s Office at 8:26 a.m. on March 28, 1984. Contrary to approved practice, and perhaps even mandated by rule, nothing on the document purports to show that it was served on defendant’s attorney — whose affidavit states unequivocally that she never saw the memorandum until accidentally coming across it on July 24, 1984, which was some 120 days after Windsor had been sentenced to death on April 9, 1984. The affidavit was filed — and served — in support of Windsor’s July 30, 1984 Motion for Reduction of Sentence which was noticed up for hearing at 2:30 p.m. October 9, 1984. There was also a defendant’s motion for oral argument on this motion, and on July 8 the district court so ordered. There is nothing which I can find in the record where the prosecuting attorney claims that he served this fifteen-page memorandum on defense counsel.
The aggravation-mitigation hearing was conducted on March 28, 1984, leaving the clear inference that the district judge had the memorandum on his desk for five days. There is no reason to believe that the court thought other than that it had been served, but defense counsel did not see fit to respond to it.
At the conclusion of the aggravation-mitigation hearing, the court spoke:
COURT: Karla, I’m going to go ahead with my sentence at this time.
I don’t want you to feel that I have considered this matter lightly by doing it so shortly after arguments of counsel and the evidence we heard today.
The Court, as in the other matters, capital matters, has had these cases on its mind almost from the day I became involved. I have given them a lot of thought to the pros and cons of what I anticipated the arguments would be. I have had the benefit of statements by counsel in writing, so I could to some extent anticipate what their position would be and what their arguments would be.
The evidence we heard today is really the only additional factor that I have had to give additional consideration to, along with my review of the pre-sen-tence, in light of the testimony that we heard today.
I am going to go ahead and make this decision at this time, because I know it is important to everyone involved, ad because not only you, but the people have a right to know what the Court’s position is in this matter. But I am going to reserve the right to make my formal decision in the form of written findings and conclusions so that I do not run the risk of misstating something or overlooking something, so it will be in a formal written document and signed by the Court as required by the laws of the State of Idaho. Tr., Vol. 4, pp. 638-39 (emphasis added).
What we have before us is the trial judge’s own statement that he had been pondering the defendant’s sentence even before the hearing — and that he had indeed been resorting to the prosecutor’s Memorandum, which included much argument based on much surmise and suspicion. That Memorandum is attached as Appendix A. Also attached, as Appendix B, is the remainder of the court’s continuing remarks, clearly demonstrating defense counsel’s contention that this secret, unserved Memorandum constituted the thread of the court’s sentence decision.
*434In considering whether the prosecutor acted inadvertently in this sorry affair, one must also consider the probability of prose-cutorial vindictiveness — a doctrine given recognition by the Supreme Court of the United States — in that, as defense counsel brings to our attention with the unserved Memorandum given to the trial court, the prosecutor before the trial was willing to forego seeking the death penalty, having written on January 4, 1984:
As you are aware, Karla Windsor is scheduled to go to trial on February 13, 1984, as a principal in the murder of Sterling Grammer. There is absolutely no question in my mind at trial that a jury would return the same verdicts that the Fetterly jury did. It would, therefore, seem to me to be appropriate to resolve the Windsor case by pleas. I would require Karla to enter pleas to the same charges corresponding to the Fet-terly jury verdict. At sentencing, I would recommend an indeterminate life on the murder charge, as well as at least one consecutive indeterminate as to the other charges. Please review this and advise me at your earliest convenience what your position is. R., Yol. 8, p. 12.
Proportionality, wherefore art thou? As I have written and written, defendants who are bound over for trial on charges of first degree murder should have their verdict and their fate determined not by prosecuto-rial whim, fancy, or vindictiveness, but by juries.
More appropriate here, however, is my suggestiofi to the other members of this Court that because of the prosecutor’s grossly improper conduct at the first sentencing hearing, and even though the trial court was not aware of the non-service on defense counsel, that first sentencing was tainted beyond correction, and it is difficult to expect that the same trial judge can wipe clean the slate. Moreover, it would seem that the particular trial judge may very well respond as did another highly respected trial judge who, having agonized once over a death penalty sentencing, declined the offer to do so a second time. State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981); State v. Osborn, 104 Idaho 809, 663 P.2d 1111 (1983) (appendix to separate opinion of Bistline, J., 104 Idaho at 822-23, 663 P.2d 1111).
V.
I concur generally with the majority opinion in Part V. We have before us a clear case of an intent to rob Mr. Grammer, and in connection with that planned crime, Windsor and Fetterly made a burglarious entry into his private residence. It was what might be called an ongoing crime as compared to most crimes, and it would be difficult for me to accept the proposition that the burglary was an instantaneous fleeting affair which somehow evaporated before the killing of Grammer — whether it was a scheduled or an unscheduled killing. It took place either during or out of the ongoing felonies of burglary, robbery, or both.
III.
Again I concur with the majority opinion, at least generally. Where two co-eonspira-tors engage in a criminal scheme which results in the death of the victim whom they are robbing, it should make little difference which of the two did the stabbing which happened to be a faster accelerating cause of death than the prolonged suffocation.
I.
The majority gives no reason for ruling as it does on this issue, but instead only states that its review of the record convinces it that the district court did not err in holding that Windsor was not coerced into giving the statements she did. A review of the facts convinces me otherwise.'
Once Windsor was taken into custody and transported in a police car to the Canyon County Sheriffs Office on September 10, 1984, officers commenced a custodial interrogation. Without advising Windsor of her Miranda rights, Detective Jim Hen-sen began interrogating her about the whereabouts of the deceased’s auto. Hen-*435sen insisted at the suppression hearing that he was not questioning Windsor about the homicide, just about the missing car of the deceased. To assert that such a “distinction” took him outside the scope of Miranda is incredible. Hensen was well aware that Windsor and Donald Fetterly were suspects; and he knew that they had been stopped by Canyon County authorities while traveling in the deceased’s pickup. The information provided to him by his unconstitutional interrogation of Windsor allowed seizure of the car from which a knife was recovered. The state later introduced that same knife at the trial as the alleged murder weapon. Without advising Windsor of her rights, Hensen clearly interrogated her about the location of incriminating evidence that by itself could be damning without a confession.
The fact that the statement was custodial is irrefutable. There also is no doubt that detective Hensen conducted an interrogation as that term is defined by this Court. In State v. Monroe, 103 Idaho 129, 645 P.2d 363 (1982), this Court, citing Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), determined that the test for deciding whether a suspect has been interrogated for purposes of Miranda was as follows:
“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Monroe, supra, 103 Idaho at 130, 645 P.2d at 364.
Here, just as in Monroe, there was “express questioning” by the detective. Here, as in Monroe, the Miranda warnings were neglected. Detective Hensen, in his haste, began his questioning without the benefit of any warning whatsoever. As a result of the unlawful questioning, the auto was located and the knife, the size and length of which the pathologist identified as being consistent with the chest wounds of the deceased, was recovered from the auto.
It is only after Detective Hensen had gained this damning evidence from the lips of the accused that we are told that Hen-sen’s “firm attitude” upset and agitated Windsor. As a result, Hensen’s supervisor, Detective Richard Appleton relieved Hensen of his duty of interrogation and began the task of calming Windsor down. One does not have to be too creative to guess at what Appleton means by “firm attitude,” when he said that he assured Windsor that he was not mad at her and treated her like a “human being.” That testimony can leave no doubt as to how Hensen was interrogating Windsor, and why he was relieved. Obviously by the time Hensen was taken off the interrogation he had violated the mandate of Miranda and this Court; further, he had mistreated Windsor to the point of upsetting her greatly.
Taking over in the old police “Mutt and Jeff” routine, Appleton calmed Windsor down and advised her that if she knew anything it would be better for her to tell the truth. When she asked to see Fetterly, Appleton permitted it, but only allowed the two to talk in his presence. Windsor had previously informed Appleton that if there was to be a statement it would have to be a joint statement. Still, neither Fetterly nor Windsor, both in custody and both definitely suspects in the murder of Grammer, had been advised of their rights under Miranda.
Appleton testified that he advised Fetterly and Windsor that his report would show that they had voluntarily given a statement, and that he would be in court with them because he would be testifying. Then, in the words of Appleton, when they “agreed” to give him a statement, and only after the two of them agreed to do so did the subject of rights arise.
Hence, only after convincing Windsor to make a statement did Detective Appleton tell her of her rights under Miranda. Only then was Windsor informed of her right to remain silent and to be represented by counsel. Surely neither the United *436States Supreme Court nor this Court ever intended that the Miranda warnings could be put off until after an accused in custody had agreed to give a statement. What occurred in this case was a concerted effort to convince Windsor and her co-defendant to give a statement. Only after they agreed to do so were they advised that they had the right to refuse. What good is a right if you are not advised you have it until after you have agreed to give it up? Therefore, under the totality of the circumstances in this case, the statement which was given was involuntary and inadmissible and should have been suppressed.
II.
Here, although I believe that a change of venue would have been the better route to go, a close study of the jury selection shows that the trial judge did not in this case, as it seemed to me was done in State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), indoctrinate the entire jury panel in such a manner that voir dire examination by counsel was reduced to a meaningless exercise. On the other hand, nearly 100 percent of the jurors had participated in prior trials with the same judge, but whether those earlier experiences caused any of the jurors to avoid confessing to knowing too much from pre-trial publicity, and accordingly forming and concealing opinions with respect thereto, is not within a realm of knowing from this record. If the Court were to reverse for a new trial because of error in the instructions, I would vote that the change of venue motion be given serious reconsideration. For certain I would vote to direct cautionary protective procedures to ensure a fair trial in Canyon County — and point briefly to factors which are of deep concern.
The flood of media coverage following the arrest of Windsor and her co-defendant, Fetterly, included information released by the Canyon County Sheriffs Office and the Canyon County Prosecutor’s Office of a prior arrest, the existence, and contents of a confession, statements that both defendants had stabbed the victim, and the prosecutor’s opinion of the guilt of both this defendant and her co-defendant. The release of such information was clearly in violation of the American Bar Association Standards Relating to Fair Trial and Free Press. Those standards issued in 1970 provide as follows:
From the time of arrest ... in any criminal matter until the commencement of trial or disposition without trial, a lawyer associated with the prosecution or defense shall not release or authorize the release of any extrajudicial statement, for dissemination by any means of public communication, relating to that matter and concerning:
(1) The prior criminal record (including arrests, indictments, or other charges of crime), or the character or reputation of the accused....
(2) The existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make any statement;....
(6) Any opinion as to the accused’s guilt or innocence or as to the merits of the case or the evidence in the case. ABA Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press.
Not only did the release of such information violate the American Bar Association standards, but it was also clearly in violation of Disciplinary Rule 7-107 Trial Publicity of the Code of Professional Responsibility adopted by the Idaho State Bar and approved by the Idaho Supreme Court. Disciplinary Rule 7-107 prohibits essentially the same conduct as outlined in the ABA Minimum Standards for Criminal Justice. This information further indicates that the district court should have changed the venue in this case.
Pre-trial publicity for Windsor continued in December 1983 up to commencement of her co-defendant’s trial on December 12, 1983. As a result, she filed two supplemental affidavits regarding venue. Her affidavits contain, as exhibits, the coverage of defendant Fetterly’s trial by the Idaho *437Statesman and the Idaho Press Tribune. Also included in the record are the transcripts of the local television station broadcasts. With the new wave of publicity brought by Fetterly’s trial, Windsor’s name was continually before the community tied to a man tried and convicted of first degree murder. The public was reminded that Windsor’s trial would begin in February. A representative sample of these reports state as follows:
1. From the Idaho Press Tribune, December 11, 1983
“The 27-year old Fetterly and a companion, Karla Yvonne Windsor, also 27, both of Caldwell, have been charged with First Degree Murder, First Degree Burglary, Grand theft, and use of a deadly weapon in the commission of a felony in connection with Grammer’s death.... Fetterly and Windsor, also were both unemployed at the time, were arrested by Canyon County Sheriff’s deputies the day after Grammer’s body was found. The couple was driving a pickup owned by Grammer at the time they were apprehended, police have said ...” (R. 120)
2. From the Idaho Press Tribune of December 12, 1983
“Fetterly’s girlfriend, Karla Yvonne Windsor, 27, also faces the same charges in connection with Grammer’s death. Her trial is scheduled for February.”
... “Fetterly and Windsor were arrested by Canyon County Sheriff’s deputies the day after the body was discovered.” (R. 121)
3. From KBCI TV, Boise, December 12, 1983
... “Fetterly and 27-year old Karla Windsor are both charged with murder. Her trial is scheduled for February.” (R. 107)
4. From KIVI TV, Nampa, December 12, 1983
... “Fetterly and his girlfriend, 27 year old Karla Windsor ... are accused of stabbing Grammer, who they knew, during the burglary of Grammer’s home.”
... “Fetterly and his girlfriend ... who will be tried later ... are accused of robbing 45 year old Sterling Grammer in his Caldwell home ... then killing him.” (R. 143 and 145)
5. From the Idaho Statesman, December 14, 1983
... “A Canyon County sheriff’s patrolman said he saw Fetterly and co-defendant Karla Y. Windsor in Grammer’s Chevrolet on Sept. 8...”
..'. “Canyon County Sheriff’s Partol-man John Sharp said he stopped Fetterly and Windsor twice on Sept. 8, once at 2 a.m. and again after 3 a.m. ...” (R. 124)
6. From the Idaho Press Tribune, December 14, 1983
... “Detective Craig Coash arrested Fetterly and Karla Windsor, 27, near the intersection of Middleton Road and Lake Lowell Avenue while they were riding in a pickup matching a description of a vehicle found missing from Grammer’s residence. Windsor faces the same charges as Fetterly. Her trial is scheduled to begin in February.” (R. 125)
7. From KIVI TV, Nampa, December 14, 1983
... “Fetterly and his girlfriend broke in to the victim’s Caldwell apartment with the intention of robbing him.” (R. 148)
8. From the Idaho Press Tribune, December 15, 1983
... “Fetterly was arrested the following day along with his girlfriend, Karla Yvonne Windsor, 27, while they were riding in a pickup owned by Grammer. Windsor has also been charged with first-degree murder in connection with, the slaying. The pair are also charged with first-degree burlary, grand theft and use of a deadly weapon during the commission of a felony. Windsor’s trial is scheduled for February.”
9. From the Idaho Statesman, December 15, 1983
... “Fetterly, 26, Caldwell, is being tried this week on charges of first-degree murder, first-degree burglary and grand theft. Fetterly and co-defendant Karla *438Y. Windsor, 27, were arrested Sept. 10 and accused of stabbing Sterling G. Grammer, 45, 1201 E. Elgin St., ...” 10. From KBCI TV, Boise, December 15, 1983
... “Defense attorney Van Bishop contended no burglary took place because Fetterly and 27-year old Karla Windsor were invited guests...: Windsor will face similar charges in February.”
... “Fetterly alleged accomplice, 27-year old Karla Windsor goes on trial in February.” (R. 113 and 114)
11. From Idaho Press Tribune, December 16, 1983
... “Fetterly was arrested Sept. 10 along with his girlfriend, Karla Yvonne Windsor, 27, the day after Grammer’s duct-tape bound body was discovered floating in the Snake River South of Nampa.”
... “Windsor’s trial on the same charges is scheduled for February. Fet-terly told police that he and Windsor planned to rob Grammer to get enough money to leave the area and ‘get a new start.’ They were arrested while driving a pickup owned by Grammer.” (R. 129) 12. From the Idaho Statesman:, December 16, 1983
... “Fetterly, 26, Caldwell, was accused with Karla Y. Windsor, 27, of breaking into Grammer’s home at 1201 E. Elgin St. on the night of Sept. 6 and stabbing Grammer, 45, to death during a struggle the next morning. They also were charged with selling property they removed from his home afterward.”
... “Fetterly and Windsor were arrested near Nampa while driving Grammer’s pickup truck.”
... “Windsor will be tried separately. Her trial is scheduled in February.” (R. 130)
13. From the Idaho Statesman, February 1, 1984
... “He and co-defendant Karla Y Windsor, 27, were accused of the Sept. 6 murder of Sterling G. Grammer, 45.” (R. 153)
As a result of the Fetterly trial, the Canyon County community was bombarded with media coverage of every detail of the crimes Windsor was charged with a second time around. Evidence that pre-trial publicity was exhaustive and inflammatory is contained in the voir dire results. Four of the jurors questioned knew that Windsor’s co-defendant had been convicted of murder. Half of the jurors questioned had acquired some information about the case and one juror was excused when she stated: “I’ve read so much about this case, I feel like I’m prejudiced. I have an opinion.” Tr., Vol. 1.
Just an objective inspection of such voir dire results would indicate that because of the amount and nature of the pre-trial publicity, there was a reasonable likelihood that a fair trial could not be had in Canyon County. It is clear to me that the trial court erred in refusing to consider the pre-voir dire motion for a change of venue. The extremely detailed coverage of the contents of the joint confession coupled with other prosecutorial comments which were prejudicial and unethical and the continuous coupling of Windsor’s name in the media with that of convicted murderer, Fetterly, resulted in her being tried and convicted even before her February trial date. Had the trial court granted a change of venue, Windsdr’s due process and fair trial rights would have been insured.
APPENDIX A
RICHARD L. HARRIS CANYON COUNTY PROSECUTING ATTORNEY
Canyon County Courthouse Post Office Box 668
Caldwell, Idaho 83606-0668
Telephone: (208) 454-7391
IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF CANYON
Case No. C-5576
MEMORANDUM REGARDING AGGRAVATION/MITIGATION HEARING OF KARLA WINDSOR
Idaho Code, Section 19-2515(b) provides that: “Where a person is convicted of an *439offense which may be punishable by death, a sentence of death shall not be imposed unless the Court finds at least one statutory aggravating circumstance. Where the Court finds a statutory aggravating circumstance, the Court shall sentence the defendant to death unless the Court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of the death penalty unjust.”
Idaho Code, Section 19 — 2515(f) provides that: “The following are statutory aggravating circumstances, at least one of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed:
(5) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity;
(6) By the murder or circumstances surrounding its commission, the defendant exhibited utter disregard for human life;
(7) The murder was one defined as murder of the first degree by Idaho Code, Section 18 — 4003(d), and it was accompanied with the specific intent to cause the death of a human being.”
I
FACTORS IN MITIGATION
(A) The defendant is somewhat educated, has one semester of college and appears to be fairly literate.
(B) The defendant has the ability to obtain employment. Because of education, the defendant has some skills that could make her employable. However, her past history shows no inclination to consistently maintain employment or any desire to be a productive member of society.
(C) The defendant has a limited criminal record. There does not appear to be a prior felony record, depending on whether the prostitution charge of 1978 is considered a felony or a misdemeanor. At the time of the present offense, the defendant had two felony charges pending, one being Possession of a Controlled Substance and the other being the charge of Fraudulent Use of a Credit Card. Further prosecution of those charges was abandoned because of the commission of the present crimes. It should be pointed out that the same credit card upon which the charge against the defendant is based, was used in California to obtain possession of a 1983 Buick, which was brought to Canyon County and then cut in pieces for parts. These facts have been verified by the Canyon County Sheriffs Office.
Although the defendant has a limited criminal record, the defendant is not unfamiliar with criminal activity. The defendant admits to heavy drug use and abuse. Heavy drug use necessarily involves contact with the criminal underworld. In addition, the defendant admits to long involvement in prostitution. Her associates have generally been described as unsavory people, in trouble with the law. In fact, one of her boyfriends in the past was murdered on the street. There has not been a demonstration that the defendant has ever lived a law-abiding life, separate and apart from vice, prostitution, drug use and theft. The defendant, by her own admission, has a long history of criminal conduct which is not revealed by the formal criminal record.
(D)Her home environment was unsettled and there is an apparent history of sexual molestation by her step-father at a young age, resulting in placement in a series of foster homes and group homes. However, the history also discloses that the defendant had been involved in counseling programs from age 13 to 17, which apparently has had negligible effect on her ability to conform her conduct to the requirements of the law. The history also points out that the defendant has spent time in shelter homes, a juvenile hall and a school for incorrigible girls. As an adult, she has continued to live on the street as a drug user and a prostitute. Although the defendant is now 27 years of age, there is no history that the defendant has made any effort or attempt at living as a law-abiding, productive member of society. Indeed, the entire record discloses that the defendant *440has been hardly anything more than a societal parasite. By that, I mean most of her entire life seems to have evolved around illicit and illegal conduct.
(E) The defendant did cooperate with the police by giving a voluntary statement as to her involvement in the crime. It is my belief, however, that the decision to give a statement to the police was based upon the fact that the evidence overwhelmingly indicated guilt and, by giving a statement, the defendant could, to some extent, manipulate the facts and soften the effect of what actually happened. I also believe that although the defendant’s statement is incriminating, there is reason to distrust the statement in its entirety as being a truthful account of what happened, inasmuch as her statements do not conform to the physical evidence nor to reason or common sense.
(F) The defendant did not actually wield the knife that caused the death of the victim. However, the defendant was present and was assisting the co-defendant in the intent to keep the victim quiet at the moment the victim was stabbed to death. In addition, the crime in its inception was this defendant’s idea. The evidence suggests that this defendant was a willing participant who counseled and encouraged its commission. There is nothing in the record that would suggest that this defendant’s responsibility for the murder is any less, notwithstanding the fact she did not wield the knife.
II
FACTORS IN AGGRAVATION
(A)It was Karla Windsor’s idea to commit the crime. Windsor and Fetterly were living on the street. Neither was employed and neither had any apparent means of support. Although the defendant was offered a place to stay until she could get on her feet, she, nonetheless, rejected the offer inasmuch as the offer was extended to her alone and she rejected the invitation so that she could remain with Fetterly on the street. The crime was committed as a means of obtaining property which could be sold so they could ostensibly raise money to leave the area. Again, it was Karla’s idea, in the first instance, to commit the crime.
(B) In the planning phase of the crime, the suggestion to hurt Grammer came up. Windsor, at one point in her statement, talks of making a joke about it. I believe the reasonable inferences to be drawn from all of the evidence supports the contention that Windsor and Fetterly knew from the beginning, when they decided to commit the crime, that they would have to kill Grammer.
(C) The defendants broke into Gram-mer’s house without his permission or consent, and there laid in wait for him to come home. If they had, in fact, only intended to burglarize the place, they could easily have done so, departing with their property long before Grammer ever came home. However, they chose to wait for him so that they could take his vehicles, as well as his property. I believe, because they chose to wait for him, that murder was inevitable. I believe that is the only reasonable inference to draw from the evidence.
(D) The defendant, at trial and in the pre-sentence report, is not being truthful about what actually happened. The defendant has attempted, by her testimony, to soften the impact of her involvement, even saying that the stabbing occurred unexpectedly and without her prior knowledge. In actual fact, the statement the defendant gave to the police indicated that when the victim began struggling, Fetterly grabbed the knife, held it to his chest, telling him to be quiet, and when he persisted in struggling, Fetterly then stabbed the victim. All of that was done in the presence of the defendant who was assisting Fetterly in trying to keep the victim from struggling and who was also telling the victim to keep quiet so that he would not awaken the neighbors next door. In addition, the defendant is not being truthful about the placement of the duct tape over Grammer’s face. First, she says that they taped his hands in the living room when he was on the couch. She says that *441he kept falling asleep, so they moved him from the living room to the bedroom, where they laid him on the bed so that he would be more comfortable. She then taped his feet. She also says that they asked Grammer to let them take his pickup and the rings. Grammer did not volunteer to let them have any of his property and the defendants informed him that they were going to take his property anyway. At that point, the defendant says Grammer agreed to be tied up to make it look like a burglary and the authorities would not suspect he had been involved. She then taped his face, later helped him smoke a cigarette and gave him a drink of water and then re-taped his face. She says approximately half an hour later, Grammer began to struggle and make noise which precipitated the stabbing. The explanation she gives does not square with the evidence nor does it square with reason and common sense. The evidence discloses that Grammer received a blow to the head of sufficient force and magnitude to cause loss of consciousness. There was broken glass all over the bedroom. I suspect they clubbed him over the head with that bottle and then put him on the bed and tied him up. Indeed, Fetterly’s statement is that “Karla cut the tape on his mouth so he could have a drink of water and smoke a cigarette and then she put the tape back on him. That’s when he started to go nuts, after she put the tape back bn him. I was trying to hold him still and he hit me in the head with his head and that’s when I lost it.” Fetterly’s statement is much closer to the truth than is the statement of Windsor. At trial, the testimony of Dr. Donndelinger was to the effect that the placement of the tape over Grammer’s face created a seal so that he could not breathe either through his nose or his mouth. Dr. Donndelinger also testified that had it not been for the penetrating stab wounds to the victim’s chest, he would have, nonetheless, died of asphyxiation as a result of the tape. The defendant, Windsor, put the tape over the face of the victim and that, alone, would have caused his death had it not been for the immediate reaction as described by Fetterly resulting from Grammer’s inability to breathe. It was on the basis of that reaction that Fetterly stabbed him to death.
(E) The victim, Grammer, did nothing to provoke the incident which lead to his death. On the contrary, he took the defendants into his home, gave them food, let them spend the night with him when they had no other place to go, and there is nothing in the record to suggest that he did anythipg other than extend the hand of fellowship to them. He was rewarded for his kindness and. help by the defendants’ murdering him. It is my belief that they would have committed the crime as early as Monday night except for the fact that Grammer’s four-year-old boy spent the night with him. Fetterly had already made arrangements to fence the property and, in my judgment, only the presence of the boy kept them from committing the crime at that time.
(F) The murder occurred to silence the only eyewitness to the crime. The record reveals that Grammer took great pride and joy in his vehicles, not even letting his wife drive them. The defendants agree that Grammer did not want them to take the pickup or the rings or the rest of his property, for that matter. The defendant says that Grammer agreed to have his hands tied so that it would look like a burglary and the authorities would not suspect that he (Grammer) had been involved in it. That statement by the defendant obviously is false. Why would Grammer voluntarily cooperate with the defendant in the commission of the crime? He was a man of modest means, his vehicles meant a great deal to him and it is inconceivable that he would voluntarily give the property to the defendants. On the other hand, Grammer was acquainted with the defendants. He could readily identify the defendants to the police. Reason indicates that Grammer was murdered to prevent him from identifying the defendants as the culprits. In addition, Grammer was killed at the exact moment that the defendant was fearful that Grammer’s struggling and noise would waken the neighbors and reveal *442their criminal scheme. The defendant chose not to let that happen.
(G) Disposal of the body in the Snake River is further evidence of the defendants’ attempt to cover up the crime and to prevent their detection as the murderers. Dumping the body in the river also demonstrates the defendant to be bankrupt of any feelings of compassion or regard for another person. Indeed, it does show the morbid and depraved nature of the defendant’s personality.
(H) Sale of Grammer’s property demonstrates the total selfish and callous attitude toward the murder which she had committed. The entire episode, the planning, the murder, the disposal of the body and the sale of the property indicates to me that the crime was carried out in a manner devoid of normal human feelings toward another person. It is proof positive of the warped and depraved attitude of the defendant.
(I) Finally, the crime was totally senseless and exceptionally cruel in its commission. The crime was ostensibly for the purpose of stealing property to obtain money so the defendants could get away and get a new start in life. Grammer was a man of humble means. He didn’t have much in the way of property and certainly didn’t have anything of any substantial value. He was not a likely target for robbery and murder. It was a situation where the defendants were desperate and were sufficiently callous and hardened in their outlook and manner that they could rob and murder a friend for, in reality, a pittance. I believe the murder was inevitable even from the planning stage of the crime. I believe the defendant knew that also. It seems to me that it would not take an intellectual giant to realize the consequence of placing the tape in the manner it was placed. The stabbing occurred to avoid detection, stemming from Grammer’s natural reaction to the tortuous application of the tape. The body was disposed of in the Snake River much like a piece of garbage, also to avoid detection. Again, it was totally senseless and exceptionally cruel.
Ill
STATUTORY AGGRAVATING CIRCUMSTANCES
(A) The murder was especially heinous, atrocious, cruel and manifested exceptional depravity. (5)
(B) By the murder and circumstances surrounding its commission, the defendant exhibited utter disregard for human life. (6)
(C) The murder was one defined as murder of the first degree by Idaho Code, Section 18-4003(d), and it was accompanied with the specific intent to cause the death of a human being.
I believe on this last statutory ground, some comment is in order. The Court, in Instruction No. 16, submitted to the jury two theories of murder upon which they could find the defendant guilty under Count I of the Information. The jury, by its verdict, found the defendant guilty of the second theory of first degree murder in that the defendant, on or about the 7th day of September, 1983, in Canyon County, with malice aforethought, wilfully, unlawfully and intentionally murdered Sterling Gene Grammer while perpetrating or attempting to perpetrate a burglary, as defined in Instructions Nos. 19 and 20. The Court, by Instruction No. 14, instructed the jury that murder is the unlawful killing of a human being with malice aforethought. The Court further instructed the jury that the malice may be express or implied. It is express if the evidence shows an unlawful and deliberate intention to kill a human being without just cause or excuse. It is implied if the evidence shows no considerable provocation for the killing. It is also implied when the evidence of the circumstances surrounding the killing shows the presence of an abandoned and malign heart, which means a condition of heart and mind which has no regard for social or moral obligation. Thus, malice is implied when the evidence shows that a killing resulted from an act or acts involving high degree of probability that death would re-*443suit when such act or acts have been committed for a base anti-social purpose and with wanton disregard for human life. The Court, in Instruction No. 13, defined wilful as intentional. In addition, under the case of State v. Owen, the Idaho Supreme Court has basically stated that where the homicide is committed in the perpetration of or attempt to perpetrate one of the enumerated felonies, proof of deliberation and premeditation is not essential. The reason that it is not essential is that he who is guilty of perpetrating a crime which the statute defines as first degree murder commits a crime so offensive to society that should death result therefrom, it is murder of the first degree. The Court further has said that where “any person commits or attempts to commit any of these major felonies, he is motivated by malice and when the killing of a human being directly results, it is murder because malice, the essential element of murder, is present. The felon’s malicious act in perpetrating or attempting to perpetrate his planned crime is justly regarded by the law as the causative antecedent of the homicide.” In addition, by Instruction No. 12, the jury was instructed relative to the law of aiding and abetting. Although the jury did not return a verdict nominating the defendant as an aider and abetter, the evidence is clear that the defendant was an aider and abetter. It was she that planned the crime, it was she who placed the tape on the defendant which would have caused his death but for the intervening stab wounds, it was she who was assisting in the attempt to quiet the victim immediately before his death. Instruction No. 12 says that to “aid and abet” means to assist, facilitate, promote, encourage, counsel, solicit or invite the commission of the crime. The definition encompasses the activity of one who knowingly participates by any such means in bringing about the commission of the crime. Participation is wilful if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires. It contemplates a sharing by the aider of the criminal intent of the perpetrator. Further, in order to aid and abet another to commit a crime, it is necessary that the accused wil-fully associate herself in some way with the criminal venture and wilfully participate in it as she would in something she wishes to bring about. That is to say, that she wilfully seek by some act or omission of hers to make the criminal venture succeed. The evidence is clear beyond a reasonable doubt that the defendant wilfully and intentionally committed all of the acts which would make her an aider and abetter under the instruction. It is clear beyond a reasonable doubt that the murder was committed in the perpetration of a burglary and that it was accompanied with the specific intent to cause the death of a human being.
IV
CONCLUSION
Idaho Code, Section 19-2515, provides that the sentence of death shall not be imposed unless the Court finds at least one statutory aggravating circumstance. It is my belief that the evidence shows beyond a reasonable doubt that three statutory aggravating circumstances exist in the present case. The statute further provides that where the Court finds a statutory aggravating circumstance, the Court shall sentence the defendant to death unless the Court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of death unjust. In weighing the mitigating circumstances against the aggravating circumstances, and particularly the statutory aggravating circumstances, it is my belief that the aggravating circumstances clearly outweigh the mitigating circumstances and, indeed, the mitigating circumstances are depreciated significantly by the explanations given. Therefore, it seems to me that the mitigating circumstances do not outweigh the gravity of the aggravating circumstances. The question then is, do the circumstances surrounding the death of Sterling Gene Grammer and the involvement of the de*444fendant, Karla Windsor, make imposition of the death penalty, as it applies to her, unjust. In answer to that question, I return again to the thought that one must be held accountable for the act a person has done. This defendant set in motion the chain of events which lead to the cruel and savage murder of Sterling Grammer. In my mind, by her actions and her conduct, she is as guilty as the person who wielded the knife. In my mind, her responsibility is as great or greater than the person who wielded the knife. I, therefore, believe that the imposition of the death penalty in this instance is not unjust and, in fact, the only way that justice can be accomplished for the senseless and savage murder of Sterling Grammer is to sentence the defendant to death because her conduct demands it and the ends of justice demand it.
Respectfully submitted this 23rd day of March, 1984.
s/Richard L. Harris Richard L. Harris
APPENDIX B
SENTENCING
The evidence we heard today is really the only additional factor that I have had to give additional consideration to, along with my review of the pre-sentence, in light of the testimony that we heard today.
I am going to go ahead and make this decision at this time, because I know it is important to everyone involved, and because not only you, but the people have a right to know what the Court’s position is in this matter. But I am going to reserve the right to make my formal decision in the form of written findings and conclusions so that I do not run the risk of misstating something or overlooking something, so it will be in a formal written document and signed by the Court as required by the laws of the State of Idaho.
However, it is my feeling that is a sterile way of telling you what my decision is. I would prefer telling you eye-to-eye, face-to-face what my decision is.
In approaching this sentence I first gave consideration to the fact that it had to be individualized; that I had to consider all available mitigating circumstances that may have any bearing on the issue of your moral or legal culpability, as well as the aggravating circumstances that might bear on that same question.
I took the position that if I determined the culpability was not as great as the culpability of the co-defendant Mr. Fetterly, so as to make a lesser sentence not be unjust, then the Court felt it could consider sentencing alternatives.
On the other hand, if the Court determined after review of those same things that your culpability and responsibility in the crime were equal to or as great as that of the co-defendant, then in the Court’s judgment a lesser sentence would make the sentence not only disproportionate, but would be a disparancy that could not be rationally reconciled.
The Court is now convinced, and possibly even more convinced that the sentence I imposed on Mr. Fetterly was just and proportionate to the savage and brutal slaying that occurred to Mr. Grammer.
So the question, then, is what is your legal and moral culpability in these crimes? After considering the entire record before the Court, the evidence in mitigation and aggravation as it relates particularly to the time period of the crime itself. In my judgment the evidence is clear that the plans to commit these crimes were conceived, not like a bastard child that might have resulted from a fling or an accident, but were plans that were put into effect after considerable discussion and planning between you and the co-defendant.
We have the testimony of Zeke Palacios concerning your contact with him as a fence to move the property that might be accumulated. There was a long period of time that you and Mr. Fetterly spent in the school yard discussing the possibilities, pro and eon, and then there was a period of time that existed while you waited for Mr. Grammer to return after you had entered into the home of Mr. Grammer.
*445It is my opinion and my belief, based on the evidence, that when this matter is scrutinized and analyzed for what it is, that you were the brains and the motivating force that set this catastrophe in motion. I do not mean by saying that that Mr. Fetterly did not have an equal or even possibly greater involvement, but insofar as why it came up, why it happened and how it was to happen, I believe that the evidence is clear that you desired to have a new start in life; that there were the threats of the alleged warrants out for your arrest and for Mr. Fetterly’s arrest; and that the motivation was to obtain the property, the finances, the vehicle, to make the escape into a new life.
The evidence, in my opinion, is absolutely clear that you were a willing participant. You not only counseled, but encouraged the commission of the crime.
I . have searched the record in hopes of finding some evidence of the fact that you some way might have been threatened by Mr. Fetterly or that he had some kind of influence that would control your judgment in the decisions that were to follow. Listening to the evidence this morning particularly, I have the feeling that you are kind of like a Jekyll and Hyde, because you are a person who is described as a person who has compassion and feeling for the underdog or the downtrodden or the helpless. In fact, for a short period of your life you have worked very effectively in those areas. But at the same time, I think that the evidence is absolutely clear that you were able to commit, along with Mr. Fetterly, this heinous crime against a person who had befriended you and taken you into his home and given you food to eat.
In the pre-sentence and in some of the testimony you have been described at times as being a gullible person capable of being manipulated. Yet in my opinion the evidence is that in your lifestyle, at least in recent years, you have demonstrated a deliberate choice concerning the direction your life was to take. By that, I mean that the evidence demonstrates that you have the education, the talent, and the ability to lead a productive life, and to take the course in life that would have directed you in a meaningful manner in achieving the goals you have talked about. Your mother has testified that she gave you the opportunity of a place to live. True, it did not include Mr. Fetterly, but it was the despair that you have talked to the Court about, frustration and feelings you had at that time were manufactured in your own mind, inasmuch as the real facts do not support that destitute position that you talk about.
There were people that loved you and cared for you and were willing to extend open arms to you without the association of Mr. Fetterly. I think that their feelings and their judgment of Mr. Fetterly was well-founded. I think if you would just look at the history of your own life, that your choice in companions has not been good, and of course I am certain there are exceptions to every rule, and there might have been for short periods of time, but by and large your association and your contact with people has been primarily with people in trouble or people which were not constructive or beneficial to society. That may have been from the feelings you have towards the downtrodden and the underdog that you are drawn in that direction.
The Court respects you for that compassion and that feeling, but without a question of a doubt in my mind, you are an intelligent person, that you know right from wrong, and that can make intelligent decisions.
In trying to look for mitigating factors that might influence the Court’s decision on the culpability at the time of the commission of the crime, the Court has taken into consideration each and every one of the mitigating factors discussed by counsel. I did consider the fact that you are twenty-seven years of age, but I am not sure that is a mitigating factor or a factor that works against you, inasmuch as the decisions we are talking about is the decision that occurred on the night of the commission of this murder, and certainly I think you would have to agree if a person is twenty-seven years of age, not handi*446capped in some manner, that they are the age of reason; they have experience in life; and there is really no justification based upon age itself.
The Court has taken into consideration your record is void of any convictions for violent criminal activity.
The Court can take into consideration and does take into consideration, but places very little weight on the fact that there are two pending felonies or were two pending felonies at the time of the commission of this crime. The statement made by the prosecutor certainly supports the fact that there was a basis for the filing of those charges, but the Court also believes in the presumption of innocence your counsel talked about, and it is just a consideration that the Court has thought about.
I think more importantly, while it may not be a criminal history, what in fact is your history. The Court is aware — I do not necessarily want to bring it out to embarrass you or cause it to be a discussion in open court, but there was some traumatic experiences in your early life because of your position in a home with a step-father situation that caused you to be removed or caused you to leave.
Again the Court has great feeling and compassion for the position that you were in at that time. But you were placed in foster homes, and the Convent of the Good Shepherd, and a shelter home. I believe from reading the record and analyzing the record before the Court that you did from time to time run away from those placements; that you, by your own testimony, spent three years in the Convent of the Good Shepherd, and while there was a period of time that you admit to as far as prostitution, there was a mental development that you allowed yourself to be engaged in, and that was survival of the fittest, by using your body or whatever was necessary to survive on the streets. And probably because of that history, you had become somewhat hardened, and that course in your lifestyle has caused you maybe to make some decisions you might not have made otherwise.
Again, it goes back to your association with companions you pick up.
As far as your work history is concerned, it is rather sporadic. There is no real stability in either your lifestyle or work history. It is a matter of existence. And while it is not a criminal record per se, it is void of any real merit or any real plusses that the Court could consider.
I did take into consideration the fact you were cooperative with the law enforcement upon your arrest, and that you did admit some involvement in the commission of the crime. I don’t think it is any surprise to counsel, because I think they were present in Mr. Fetterly’s sentencing. Based on my hearing of the testimony and review of the records, felt ever since the completion of the trial that while the statements bordered at times on the truth of what might have happened, there is serious gaps in the testimony, there is some fabrication, there is some distortion of what really in fact did transpire based on the physical evidence available to the Court and produced in the form of testimony and evidence also. I will discuss that in a little more detail later.
I have taken into consideration also that you are intelligent, you have received training in various fields, and that would make it possible for you to be a productive member of society but for these crimes. However, the Court has to recognize you have not had the inclination, at least to the point, to maintain any particular employment or any real desire to be a productive member of society, other than just long enough to get from pillar to post or to exist from one bad relationship to another.
I have taken into consideration that you did not inflict the actual knife wounds that caused the demise of Mr. Grammer. However, as I will discuss a little later, when you look at the cold, hard facts in this case, it is really a difference without a distinction.
I have taken into consideration the fact that you were not raised in a stable home environment, but that is as far as a mitigating circumstance loses certain strength *447when you consider the fact that you were by your own testimony counseled and assisted in your psychological adjustment for the period of time between twelve to seventeen. There is really not evidence that you benefitted from that counseling.
I have taken into consideration that there is no credible evidence that you have had any addiction to alcohol and/or drugs. But I think that the record is clear by your own admission again that you have abused the use of drugs and/or alcohol throughout most of your adult life.
In looking at the aggravating circumstances, I have to believe that most of the things I said in Mr. Fetterly’s case are applicable here. I recall very well that one of the first statements I made was that the crime was totally senseless and void of any compassion or feeling. The facts are that Mr. Grammer had not only befriended you on earlier occasions by providing you with a place to sleep and food to eat, but you were actually in his home and about his person where you could make a decision for yourself that he was a man of modest means; that he did not have very much property; and that the little property that he did have had a particular sentimental value to him.
During the testimony of the trial you recall that his wife testified she was not even allowed to use his car. That he padlocked his home when he left, and that on the night he had you stay over, provided a place for you and Mr. Fetterly to sleep, awakened you about 5:30 in the morning so that you would not be left in his home when he left. In other words, he was protective of the few material belongings that he had.
Knowing that, knowing the little value that was there, to set this crime in motion is senseless and void of any compassion or feeling.
I think it is clear from the evidence that while your initial discussion and your planning with Mr. Fetterly was to burglarize Mr. Grammer’s home and rob Mr. Gram-mer of his possessions, that it was discussed, and it was clear in your mind, based upon not only what transpired here, but your conduct and life with Mr. Fetterly before that. Whatever actions necessary would be taken. And you cannot close your eyes to the fact that maybe it might have even gone beyond your wildest dreams, because when you set a force in motion like that and the plan is clear, that you are going to take a man’s prized possessions, invade his castle, he is going to react, particularly when he is in a position to identify you. The signals are all that you are going to have to take whatever action is necessary to silence him to complete your plan.
The killing was exceptionally brutal. In my judgment, as I stated in Mr. Fetterly’s case, it was the conduct of a depraved mind. Why would the Court use the language that your counsel says is not applicable? The simple fact is that when you look at the cold, hard facts, in the absence of any explanation, and that explanation could only come from you or Mr. Fetterly, and it is not in the record.
Mr. Grammer received a blow to the back of his head, according to Dr. Donndelinger, would have rendered him or any person of like stature unconscious. The duct tape, of course, then was placed upon Mr. Gram-mer’s person, and I am convinced in my mind, I believe without a question of doubt that the evidence supports that the only way that duct tape could have been placed on Mr. Grammer was while he was rendered helpless, because of his feeling for his home and his property, and the fact he was to be at work. He was the type of person that did not miss work, even when he was ill, according to the evidence.
That duct tape, when you examine the pictures, was not just lightly placed around an individual’s hands or feet so as to give the appearance that he was to be burglarized or robbed, but was in fact placed around there so he was rendered immobile and helpless. The duct tape was then placed over his eyes, his mouth, and his nose.
*448I think all you have to do is examine Exhibit Number Thirty-five to see how clear and plain the evidence really is in that regard. There are pictures in evidence that show Mr. Grammer’s body while it was still in the water before it had been touched or moved to any extent at all, and the mask is in place.
Dr. Donndelinger testified about removing that mask from his face and the fact it was in a sealed condition. It would seem very likely to the Court that if in fact that tape that was over his nose had been placed there by either you or Mr. Fetterly, after Mr. Grammer was killed, for whatever reason, because you just did not want to see his facial appearance or whatever reason, you would have told the Court that, and the jury.
You are the only people that are capable of telling the jury or the Court that, and the record is void of that information. The fact is that the tape is demonstrated by Exhibit Number Thirty-five, is far down below the nostrils or where there could have been any breathing capacity. It is in a sealed condition.
Dr. Donndelinger further testified that Mr. Grammer would not have lived, whether he had been stabbed or not, with the tape in that position. Why would you tape Mr. Grammer’s eyes, nose and mouth? In my opinion, after he had been rendered unconscious, that was placed over his eyes, nose, and mouth, maybe so you could avoid identification. You could take his personal property from his body and search him for his keys and take his rings or whatever you had in mind. But he became conscious during that period of time, and even though the tape may or may not have been placed on before that time, at some time during that time the tape is placed on him in that manner. And of course he is fighting for his life. As I explained to Mr. Fetterly, anybody with his hands tied in the manner in which Mr. Grammer’s hands were tied and his feet were tied would fight for his very existence. It may have caused his head to come up and hit Mr. Fetterly’s. But the evidence is clear to me at that point there was an abandoned heart on the part of you and Mr. Fetterly in the fact the knife was thrust into Mr. Gram-mer’s body no less than five times.
Your testimony is that you were trying to hold him down, laying over his legs while Mr. Fetterly was over the main part of his body. The testimony in my recollection is the knife was first held to his chest, trying to keep him quiet, to silence him. Then the knife was thrust into his body in the vicious manner in which it was.
Now, if your course of conduct and actions thereafter had been different than what it was, I may have tried to work my way around to believe you were surprised by what had happened. But when you look at the facts subjectively and do not allow yourself to get into the subjective part of it, it is simply not there. Even after Mr. Grammer had been killed in the manner in which he was killed, you and Mr. Fetterly were able to come back to that residence, even though you had his car at that time and could have removed whatever property you wanted, and even after a period of time when the shock would normally set in if you were innocent, there is no indication that it was effective as to either you or Mr. Fetterly. In fact, you did return to the home and you proceeded to pick up the few belongings Mr. Grammer had and attempted to pawn them or sell them to Mr. Palac-ios or any buyer that he could obtain for you. Just common sense absent some kind of callousness and some type of voidness for human compassion and feeling would have caused the normal human being to either turn themselves in at that time or leave the community. But instead you and Mr. Fetterly drove around as if nothing had happened. You lied as to the property you possessed, even to the people that were friends, where it came from, what it was and how you happened to have it.
The taking of the body, of course, to the river in the manner in which it was dumped is incapable of explanation. I think I said in Mr. Fetterly’s sentencing that you would not really do that to an animal, let alone a human being, particularly a human being *449you knew was loved by a four-year-old boy that would sooner or later have to face the fact that his father had been killed in the manner in which he had been killed.
To me that handling of the body, particularly after the time you had to think about it, because you did not just immediately dispose of the body like it does happen in some criminal cases; again, thought was put into it. You returned to the home after almost twelve hours, and then the body was taken to the river. To me that is an utter disregard for morality or decency or the effect that it might have on one’s loved ones. There was no remorse shown at the time that it was relevant.
I have felt at times now, since you are in the predicament you are in, there have been indication of remorse and feeling. People have testified that you are capable of compassion and feeling, but the time that counts and the person that counts is around the time and events of the death of Mr. Grammer, and there was absolutely no remorse. A person that was capable of going forward after the death that he suffered and selling his personal belongings for the trivial amount that was there certainly is not indicative of any kind of remorse that I’m aware of.
Your testimony is clear to the Court that the record is that you, particularly at the time we are talking about, was not under the influence of any mind-controlling drugs and/or alcohol, so that your intent or your state of mind could have been confused or affected or had some kind of control on the physical acts that you took. You in fact had entered the home, according to your testimony, the night before and were lying in wait for the return of Mr. Grammer. That because of your financial situation you did not have any drugs or alcohol, and so that your state of mind was clear and capable of making right decisions.
Your intent was not to go further than just to try to get Mr. Grammer to cooperate with you in the commission of burglary and robbery. I have already talked about the fact that defies common sense when you think about he had such few possessions and what they meant to him sentimentally.
In your testimony you talked about entering the window. When you entered the window, there was the bottle or whatever it was that was knocked off the dresser, and that the disturbance that was all over the floor was as a result of that entry. That just does not stand up when you examine the facts, because if your purpose was to get your friend to go along with you and make it look like a burglary or robbery, and you wanted him to go along with that kind of plan or scheme, he certainly would not be inclined to do so if when he walked in the house there was broken glass all over the floor, his drawers had been pulled out, and things were ransacked. That also has not been consistent with the testimony that I have heard here today about how clean and neat you are, because the room had been ransacked and was a mess, and there was the opportunity to clean that up and make it halfway presentable if your true intent was not to go any further than to try to get Mr. Grammer to go along with the burglary.
I think it was more indicative of the fact that you intended to disguise your presence by knocking Mr. Grammer unconscious and covering his face and leaving with his property whether he liked it or not, and if he got in your way, whatever means were necessary would be taken.
I have searched and searched the record for some evidence of provocation on the part of the victim. It is simply not there. He went out of his way, it seems, to be a friend and provide for you. He asked nothing more than for his life and for the sanctity of his castle.
Another thing that crosses the Court’s mind that bears upon the question of what your true intent was concerning the murder is how it was that you could conceive or believe, based upon what transpired thereafter, that Mr. Grammer could be in a tied-up position in the manner in which he was tied up for the period of time that it would take to dispose of the property. Even after two days’ period of time you *450still had not disposed of very much property of any value, and it has crossed the Court’s mind, at least, what Mr. Grammer was supposed to be doing during all of this period of time while you were selling his belongings, because that was apparently necessary before you could leave town. It is just inconsistent and contrary to common sense that he was to be left in that condition for that period of time, particularly based on your prior knowledge of him. You knew that he would be missed at work, and his boy would be likely to come by, or his ex-wife, or his other friend could drop by.
There was something the prosecutor discussed that I want to make one comment on. If your true intent was to just take some property as having a means to get out of town and start a new life, particularly with the threats of the alleged warrants outstanding, there was ample time while you were waiting, even in the school yard, you could have made your entry, probably even sooner. But even if you hadn’t’ve, if you’d waited until the time you did, there was ample time from then until Mr. Gram-mer came home to remove the property that was there. I believe even a vehicle was there. Certainly he could not be driving both of them.
But I think that the real motive was you wanted the diamond rings and the location of the same, and Mr. Grammer had already told you, advised you, that he was not going to depart or separate from those belongings. So again, your intention, in my judgment, was to take the same with whatever force was necessary.
Now, as far as the statutory aggravating circumstances that the Court must find in this case, the Court without question feels that number (5), the murder was especially heinous, atrocious, or cruel, manifesting depravity, applies to this case. It was coldblooded, and it was pitiless, a senseless killing. I can’t hardly think of a greater torture than the striking of a person in the back of the head and the taping. The vivid portrayal of what was to occur, when you are rendered helpless to do anything about it. The fact you could feel the tape going over your eyes, over your mouth, and then before it actually even proceeded, over your nose. What would happen if your air passage was sealed off when the knife was pulled, when you were rendered so helpless that you couldn’t even scream or holler or move or do anything. To me is certainly a crime of a heinous, atrocious nature.
Number (6), the murder or circumstances surrounding its commission, the defendant exhibited utter disregard for human life. I think what the legislature and the people are asking us to look at is that murder on the spur of the moment, or did it occur without any really thought put into it, and what transpired shortly thereafter, so that the Court can look at the totality of the circumstances surrounding its commission. And here we have not only the lying in wait and preparation and thought and discussion even with the fence to take the property when the crime was committed against a person who you knew could identify you unless he was silenced.
We have the disposal of the body and the manner in which it was disposed of, the driving around for a couple of days as if nothing had happened, the selling of the belongings right off the body itself. To me that type of conduct, as I indicated, I believe already manifests such depravity as to offend all standards of morality and human intelligence.
Number (7), the Court also feels is applicable, in that it is clearly murder defined as murder of the first degree under Section 18-4003, and examination of the instruction submitted to the Court and the evidence before the Court, I think it is absolutely clear that the murder or the killing was accompanied with the specific intent to cause the death and demise of a human being.
Counsel has argued and rightfully so, I don’t fault her because she did an excellent job in this case, but the jury somehow has not found deliberation and premeditation, and therefore it is non-existent in this type of crime. I am confident that the jury may very well have felt that since the defendant *451did not actually use the knife, that they preferred to stay away from that particular finding. But the finding is there by a jury of twelve and by the people of the State of Idaho, and that the people of the State of Idaho and the legislature have imputed malice, deliberation, and premeditation into this type of crime when it’s committed in the commission of certain enumerated crimes, and that, of course, is because of the propensity of the danger to commit some kind of a serious crime or injury when it is involved with the commission of those particular crimes.
However, this Court, in an effort to be extra cautious, did nevertheless include in the instructions that the finding of malice particularly had to be there, and that it had to be an intentional killing before that jury verdict could be returned.
So as difficult as it has been for this Court personally and as a Court, it is my considered judgment that to impose a sentence of less than death where the defendant directly aided and abetted in the killing, where the requisite intent has been found, would make the sentence not only disproportionate to the sentence imposed on the defendant Fetterly, but would create a disparity in sentencing that could not be reconciled.
Therefore, having taken into consideration and after having duly deliberated the nature of the crime and the Court’s responsibility to the defendant and to society, the Court finds that the defendant did actively participate in this brutal and savage slaying of a person who was her friend; that the intentional killing took from the victim what an offender and this Court can never restore, and that is the fragile gift of life.
The defendant’s actions were the final betrayal of another human being and the ultimate affront to society.
The Court, after serious consideration, concludes that the mitigating circumstances, while greater in this case than in the case of Mr. Fetterly, still when looked at in true perspective and particularly to the time period that is relevant in a capital case, do not outweigh the gravity of the aggravating circumstances so as to make unjust the imposition of the death penalty.
As the state has argued, the will of the people has been set forth in Idaho Code 19-2515, and the will of the people is very clear. And while the Court does not feel it is particularly bound because mandatory language is used in this particular case, the Court feels and concurs with the particular will expressed therein, and in my discretion I concur with the fact that where the aggravating circumstances do outweigh the mitigating circumstances, in particularly as I have outlined the death penalty as not disproportionate. No legal cause or reason to the contrary having been shown, it is the judgment of this Court that the death penalty should be imposed on the defendant for the capital offense for which she was convicted of.
Therefore, it is my intent to find again the defendant under the evidence and the law before this Court, is guilty of murder of the first degree, the same having been committed in the perpetration of or attempt to perpetrate a burglary, and that punishment should be imposed in the manner prescribed by law. That the same should occur no later than forty days from this date.
The Court further concludes that the defendant is guilty of second-degree burglary by verdict of the jury. Punishment should be imposed by a sentence to the Idaho State Board of Corrections for an indeterminate period of time not to exceed five years, the same to run concurrent to life imprisonment if for some reason the penalty of death is not imposed.
The Court further concludes that the defendant is guilty of grand theft by the verdict of the jury, and punishment should be imposed by sentence to the Idaho State Board of Corrections for an indeterminate period of time not to exceed fourteen years, the same to run concurrent to the penalty imposed for second-degree burglary as hereinbefore set forth.
I will remand the defendant to the custody of the Canyon County Sheriff. I said *452not less than forty days. I’m going to name that date. May 3rd, 1984. While the Court realizes that it will be set aside, there will be an appeal, it is required by statute that it be set.
The defendant is remanded to the custody of the Canyon County authorities to be delivered to the proper authorities at the Idaho State Penitentiary. (Whereupon court then adjourned.)
. In an earlier death penalty case I expressed my belief that "proportionality" in capital sentencing is a distinctly amorphous quality and is and will remain an illusory so long as the jury is not restored to its pre-Woodson status as the determiner of life or death in all capital cases, and so long as the prosecutor assumes the right to charge less than first degree murder, where a charge of first degree murder is called for by the facts and circumstances of the homicide, or, having charged properly, assumes the right to lower the charge, or, on a conviction of first degree murder, assumes some sort of a divine right to decide for himself whether or not to seek the death penalty. State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985) (petition for rehearing granted).
. Mesa’s body was found in the hallway of his home, with numerous stab wounds. He had been stabbed once in each knee, once in the buttocks, once in the scalp, once in the hand (possibly a defensive wound), twice under the arm, and three times in the chest. Death, however, was caused by numerous slashes to the throat, during which Mesa’s left ear was partially severed, and an artery was fully severed. Majors, supra, 105 Idaho at 7, 665 P.2d at 706.
. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
. Why not submit the issue to the people in the form of a constitutional amendment?